Monday, July 07, 2008
Summer Parlor Game: Predicting the Next Justices: Obama Edition
With election day less than five months away and the Presidential nominees seemingly chosen, I was going to begin a discussion of prospective Supreme Court nominees, but Doug and the various commenters beat me to the punch. Most of the names that are on my list have come up before, either in the comments to Doug's post, in Tommy Goldstein's extensive discussion last summer, or in other media speculation. Still, I'm curious what people think of my analysis. Without further ado, here is my highly subjective lists of the ten people most likely to find themselves on the Supreme Court at the end of a first Obama term (with a McCain list to follow later in the week). I encourage all who desire to procrastinate to play along.
(1) Diane Wood--One of the two or three most often mentioned candidates in the press. It's hard to find a knock on her candidacy. She has the credentials, the experience, the intellectual heft, fits demographically, and as woman from Chicago would make a neat substitution for either Justice Stevens or Justice Ginsburg.
(2) Elena Kagan--Another candidate who seems to have nearly perfect credentials. She certainly has the stature, has high level Washington experience, is the perfect age for a long run on the Court, and is respected across the political spectrum for her handling of hiring issues at Harvard. About the only fly in the ointment is the fact that she would either have to accept a short stint on the Court of Appeals or join the Court as the first Justice since Lewis Powell and William Rehnquist without any judicial experience.
(3) Merrick Garland-- With David Tatel aging out of the contest, widely considered to be the leading contender among white male sitting judges and--hey--that group has done pretty well in prior nomination contests. Also, happens to be smart and well-connected.
(4) Cass Sunstein--Most of the career academics who make these lists are completely implausible but there are reasons to think that Sunstein might be the exception that proves the rule. After all, how many academics are there who have written as much high-quality scholarship as Sunstein without saying any single disqualifying thing (though, we need to keep an eye on the recent controversy over Justice Scalia's use of his article on the death penalty and deterrence)? He's one part liberal powerhouse and one part technocratic moderate. That combination has worked pretty well for Justice Breyer. And--unlike most of the other candidates--we already know he has Obama's ear.
(5) Teresa Wynn Roseborough--If, as is widely expected, this African-American former Stevens clerk/Gore lawyer/ACS founder is appointed to the Court of Appeals in the first months of a Democratic Presidency, she will complete her goldplated resume and become a fixture on Democratic shortlists for decades to come.
(6) Leah Ward Sears--Chief Justice, Georgia Supreme Court. Of all the new names I have encountered through the Great Mentioning Game, the one that is most plausible. A Southern African-American woman of the right age with strong academic credentials and--from what I can tell--an excellent judicial record/reputation.
(7) Sonia Sotomayor--If the pundits are right, she has already locked down the first nomination. I am a bit more skeptical. She will probably get an interview, but she will still have to out-interview a couple of equally stellar candidates with more sparkling personalities. Plus, her record on the bench is cryptic enough that she might well incense the right without exciting the left.
(8) Deval Patrick--Was already on a lot of lists before we knew his friend was going to be the nominee. The rare elected official with all the right legal credentials. Would be much higher if not for the rockiness of his term as governor.
(9) Eric Holder--The likely favorite for Attorney General in the Obama administration is not often mentioned as a high court candidate, but he has the credentials, including a stint as a judge in DC, and might be an appealing inhouse option for a second or third seat. Involvement in the controversial pardon of Mark Rich would be an obvious target for confirmation attacks.
(10) Barrington Parker, Jr.--A bit on the old side, but an incredibly credentialed, connected, competent, and confirmable African-American appellate judge.
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Tracked on Jul 14, 2008 7:00:58 PM
Andy, interesting list. Is it your sense that Obama needs to nominate a woman or a person of color or wants to, or both?
Posted by: anon | Jul 7, 2008 5:20:52 PM
I take a middle position on race and gender diversity among the coming nominees. I think that the gender inbalance on the Court is untenable and easily fixable given the Democratic pool and that the lack of a liberal person of color is also notable and fixable. On the other hand, I think Obama has the credibility on these issues to appoint the person he most wants to see on the Court to the first seat, regardless of race or gender. For later vacancies, the pressure will increase.
I think the first appointee is likely to come from the first three names and that the second probably will as well if it happens early in the term. For later nominees, I would look to those at the bottom of the list or similarly situated folks who didn't quite make the top 10.
Posted by: Andrew Siegel | Jul 7, 2008 5:35:14 PM
Yes, I tend to agree: I think this is exactly the list of the ten most likely Obama nominees. I think the two names that would be most easily confirmed are Wood and Garland, both of whom are respected by conservatives in the same way that Ginsburg was when she was on the DC Circuit. My guess is that Obama would go with Deval Patrick as his first pick, though.
Posted by: Orin Kerr | Jul 7, 2008 7:01:07 PM
Is it me, or is everyone ignoring the elephant in the room about Kagan? Even if one calls it a rumor, would a President Obama risk a confirmation campaign that deals with sexual orientation?
Posted by: HLS Student | Jul 7, 2008 7:19:18 PM
Kathleen Sullivan? Has she fallen out of favor?
Posted by: Kevin Jon Heller | Jul 7, 2008 8:24:42 PM
Fun comments. Quick responses:
(1) Orin--glad we're on the same wavelength
(2) HLS student--how would you run a confirmation opposition premised on rumors about someone's sexual orientation w/o/ looking like a party of Jesse Helmses?
(3) Kevin--i think Sullivan is great, but I don't think a candidate w/o/ judicial experience whose whole appeal is her brilliance can get beyond very publicly failing a bar exam
Posted by: Andrew Siegel | Jul 7, 2008 8:35:44 PM
1) Given the gushing praise for Jesse Helms this past weekend, not sure that's a problem.
2) I think many folks would say sexual orientation discrimination is okay, while publicly condemning raicsm.
3) I don't think it would get a filibuster, but you could bet the American Family Association and several senators would have no problem making a stink. For Obama's first nomination, he likely would avoid it.
4) You think it's just coincidence that there are zero openly gay circuit judges? Surely we can all name several people qualified.
5) If she were an openly gay person, it might be *easier*, I think. The question at the confirmation hearing: how does your sexual orientation effect how you view cases. Easy to answer, just as how Scalia answers how does your Catholicism... But I think the open secret issue makes it harder.
6) See Charlie Crist's convenient engagement this past weekend...
Posted by: HLS Student | Jul 7, 2008 9:16:05 PM
What about Jose Cabranes?
Posted by: Lola | Jul 7, 2008 10:09:33 PM
Ideologically, Cabranes would be an even trade for Kennedy. He was mentioned for Clinton, but I think consensus is that Obama would tend to appoint more liberal judges. Cabranes was in the conservative bunch for Clinton as an appeals judge, and has stayed that way on the court.
Posted by: anon | Jul 7, 2008 10:27:22 PM
In a Lincoln-like move, Obama appoints Hillary Clinton to the Court.
Posted by: Lumen Mulligan | Jul 8, 2008 10:40:57 AM
Kathleen Sullivan? She failed the CA Bar!
Posted by: lawdevil | Jul 8, 2008 10:54:45 AM
At Convictions, Doug Kmiec proposes Carter Phillips, a private practitioner and former attorney in the SG's office, who has argued almost 60 cases before SCOTUS. A very non-political choice--he is (or was) a Republican, but not known as being as conservative as Roberts.
Posted by: Howard Wasserman | Jul 8, 2008 11:17:29 AM
So questioning and speculating about somebody's sexual orientation is acceptable in the comments here? Stay classy, Prawsblawg.
Posted by: Is there a moderator in the house? | Jul 8, 2008 9:42:34 PM
Yes, by all means no mention of the all-too-real possibility that one's sexuality might be used against one for political reasons. Even to raise such a putative political scenario is not "classy" -- and that's what we care about most.
Posted by: anonymous | Jul 8, 2008 10:14:25 PM
Ann Claire Williams would be a solid choice. Former AUSA/DOJ, Reagan appointee to ND Ill and elevated to the 7th by Clinton. Solid judge, would fly through confirmation, and would not be classified as "elitist" or "out of touch" by the masses.
Posted by: anonbeme | Sep 23, 2008 2:33:42 PM