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Thursday, April 30, 2009

Justice Souter to Retire

So says AP, NPR, and Bashman.

So who is his replacement going to be? I call Sonia Sotomayor of the Second Circuit--Latina woman, 55 years old--or Diane Wood of the Seventh Circuit. Comments open, as always.

Posted by Howard Wasserman on April 30, 2009 at 11:10 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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In re: IP experience. Sotomayor was a partner at Pavia & Harcourt, where she litigated intellectual property and trademark cases... And I have never heard of her being a difficult personality.

Posted by: LawProf | May 1, 2009 6:19:05 PM

I'm surprised no one has really mentioned how important Justice Kennedy is to all of this. For the President, one of the primary qualifications of the next nominee has to be an ability to persuade Kennedy. Building on what Sally and anon say above, I think this goal may well rule out Judge Sotomayor and give the edge to Kagan.

Posted by: JP | May 1, 2009 12:57:24 PM

I'm going to make a plea for consideration of specialty,* in addition to gender and ethnicity. One of the real problems with the Court over the last two decades has been the complete absence of anyone with an IP background. On the whole, the results of the decisions have been in the right, or at least defensible, direction; the reasoning and use of authority, however, has not.

The real irony is that one of the best-qualified academics out there -- who is also a woman -- would create a repeat of the "Fletcher problem" of a couple of years back on the Ninth Circuit: Professor Jane C. Ginsburg, the daughter of Justice Ginsburg. Otherwise, from the academic ranks I'd throw Pamela Samuelson, Mark Lemley, and (gritting my teeth over my personal disagreements with him) Lawrence Lessig into the mix; from the current judiciary, nobody on the Federal Circuit (due to a combination of age, background, and poor writing), but a few names on circuit and district courts come to mind.

As a not-too-bad second-best, I'd love to see a scholarly procedure specialist, particularly replacing Souter... as although I don't always agree with his opinions (when he has actually written for himself) on procedure, he at least thinks about it. Here, there are quite a few more choices that might also meet expectations for gender/racial/ethnic origin.

* The constipated old white men who enshrined the word "specialist" in the Rules of Professional Conduct as a naughty, prohibited one can bite me. If the public can understand that punters and placekickers -- "specialists" in NFL parlance -- don't have any advanced academic training or certification, then it won't have too much trouble with a lawyer referring to him/herself as a "specialist."

Posted by: C.E. Petit | May 1, 2009 12:12:22 PM

It seems to me that Obama should either appoint a liberal lion or a moderate-liberal who can effectively build coalitions. Per her reputation, Sotomayor has neither of those qualities.

For his next appointment he might not have the political strength he does now (for example, if the republicans pick up some seats in the senate, or his popularity takes a nosedive), and that might be the right time to appoint Sotomayor. The time is ripe for him to appoint someone who could, in some sense, be a game-changer. And there are plenty of women who are qualified.

Posted by: anon | May 1, 2009 11:59:58 AM

Sotomeyer is too conservative and has a reputation for being a difficult personality. I think this undermines the possibility it will be her.

Posted by: Sally | May 1, 2009 8:03:47 AM

Query how many of the 5-4 decisions during Souter's tenure would have gone the other way if President Bush had nominated the only other person he interviewed to replace Justice Brennan.

Posted by: Tim Zinnecker | May 1, 2009 7:21:41 AM

I would have guessed Kagan (as did a lot of people) if she had not been appointed SG. It seems odd for her to serve as SG for less than six months before being nominated to SCOTUS (when she became SG I said she would be Obama's third appointee). Although I suppose no less odd than Souter being on the First Circuit for about a week in 1990.

Posted by: Howard Wasserman | May 1, 2009 12:23:45 AM

Ah- Kagan would seem the obvious choice, but I'll have to say Sotomayor. For what it's worth Sotomayor is 54, soon to be 55, while Kagan is merely 49. Additionally, Obama got a lot of help from hispanic voters in the election, and thus, appointing the nation's first hispanic justice would be a very good move politically. Plus it just makes sense that, in a nation with an increasingly hispanic population, that we should have a hispanic justice. She's also (obviously) a woman, and we could use as many women appointees as possible. This all weigh heavily in favor of this pick. If NOT Sotomayor, I would personally like to see Harold Koh appointed, as it would be nice to see another ethnic minority on the court. However, with the uproar over his nomination to a much lesser office, who knows how this would fly (although, as I saw one commentator point out on a different site, with almost 60 votes in the Senate, maybe Obama would be willing to try for a more "radical" pick).

Posted by: Robert | May 1, 2009 12:11:59 AM

My guess is Kagan.

Posted by: Eric E. Johnson | Apr 30, 2009 11:50:41 PM

I'd guess he'll name Wood or Elena Kagan.

Posted by: ScottC | Apr 30, 2009 11:34:56 PM

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