Speculation About Souterís Successor Produces A Bunch Of Names

No matter how pointless it is to speculate about President Obama's choice to fill Justice Souter's Supreme Court seat, Court observers will continue to place their bets until the president reveals his decision. They make assumptions about the characteristics Obama will find attractive in a Supreme Court candidate and they speculate about the strength of the connections Obama formed during his Chicago years. None of it helps us know what's really in Obama's head.

Maybe (let's hope) he'll pick one of the highly qualified women who are certain to appear on his short list, but maybe factors like gender balance and Chicago loyalty will ultimately be overcome by personal impressions that Obama will keep to himself. Maybe Obama will hand the robe to Harold Koh, the Yale Law School Dean who was an assistant secretary of state in the Clinton administration and who now serves the Obama administration as a legal adviser to the State Department. But Obama would have to fight charges that Koh is too liberal, and he may prefer a consensus nominee who will easily hold the votes of Senate Democrats while drawing the support of some Republicans.

So many factors, so many names, so much uncertainty. It's all just a pointless guessing game. Let's play. [more ...]

Reid Wilson's survey of the field in The Hill quotes a law professor at Columbia who wonders if Obama will start with an easy consensus choice, knowing that he'll probably have at least two more seats to fill down the road. Not to exploit Obama's popularity while he has it would be a foolish waste of a powerful resource. If Obama fields a consensus nominee, he'll do so because his political instinct (as it often seems to be) is to achieve broad consensus -- and because he has genuine respect for the nominee.

If, on the other hand, a decisive factor in President Obama's decision will be (as he said yesterday) the potential nominee's empathy for the powerless, Obama will have to battle conservatives (including some in his own party) who will put up the usual fuss. A nominee who openly agrees with Obama's view that the Constitution should be construed to protect the powerless from the powerful, or who even suggests that laws enacted to protect the powerless should be construed to protect the powerless, will promptly be fed into the conservative branding machine and come out labeled anti-business, socialist, and soft-on-crime.

I have no clue whether Obama will choose a relatively liberal judge who might need to be sold to conservative Dems, or a scholarly, middle-of-the-road judge who won't make liberals or conservatives overly happy or pained. I don't know if he will feel the need to add Hispanic representation to the Court, although I hope that gender will be at least a tie-breaking factor.

Another "I don't know": whether Obama's affiliation with the University of Chicago will produce a nominee from the Windy City. Wilson's suggestion that "Obama could pick Richard Posner, a nominee even conservative sources said would face little opposition before the Senate," is stunning. "Even conservative sources"? Conservatives love Judge Posner's cost-benefit approach to the law. Cost-benefit analysis set free to run wild in our highest Court is a frightening thought. And with all due respect to Judge Posner's keen intellect, empathy is not his strong suit.

Wilson floats Cass Sunstein, about whom BTD has had much to say, as another Chicago connection. There seems little upside for Obama in Sunstein or Posner.

Solicitor General Elena Kagan seems a more likely choice. She met Obama while she was teaching at the University of Chicago Law School, but that connection (like the Larry Summers connection) is less important than her resume: law clerk to Thurgood Marshall and Abner Mikva, White House lawyer and domestic policy adviser in the Clinton administration, Professor of Law and then successful Dean of Harvard Law School, and now Solicitor General. President Clinton nominated Kagan to the court of appeals, but Republicans refused to give her a hearing. Kagan's confirmation to the Supreme Court would be sweet payback.

The final Chicago connection is Seventh Circuit Judge Diane Wood, who earns a mention in two of the linked articles. Obama could do much worse than Judge Wood. She might be considered "reasonable" more than "liberal," but she's a credible candidate who would probably be confirmed without controversy.

Women dominate this Los Angeles Times list. And why shouldn't they? Since Justice O'Connor's departure from the Court, Ruth Bader Ginsberg has been the only female Justice on a Court of nine. She must be going nuts.

Second Circuit Judge Sonia Sotomayor brings a different set of factors to the table than Kagan or Wood. Having been appointed to the federal district court by the first President Bush, then promoted to the appellate court by President Clinton, she might appeal to Obama's inner consensus child. She would also give him the chance to put the first Latina on the Supreme Court. That combination and a supposed "tip" seems to have prompted the Telegraph to declare Sotomayor the nominee.

Jennifer Granholm and Chris Gregoire, the governors of Michigan and Washington respectively, are long-shots. Unless Obama has already decided on one of them. Who knows?

My guess is that Obama will fill the first two vacancies with women and that Elena Kagan will be one of them. If he wants Sonia Sotomayor on the Court, he'll probably seek her confirmation now, when Democrats may deem it politically wise to stand together and give their popular president what he wants. Somebody like Koh might get the nod for a third vacancy, but assuming that one of the nominees takes Justice Ginsberg's seat, that would still leave but two women on the Court. In a long term bet that I hope will be long forgotten before I'm called on it, I think Obama will nominate women to the three seats he's likely fill in his first term.

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    Pam Karlan (5.00 / 1) (#3)
    by Platypus on Sat May 02, 2009 at 03:19:05 PM EST
    Don't you all think that this woman would be a terrific choice?

    Damn that would be awesome.

    She has a very appealing (5.00 / 1) (#4)
    by brodie on Sat May 02, 2009 at 03:36:06 PM EST
    profile, the younger age is a huge plus, and appears highly intelligent.  I'd like to read her piece on the stolen 2000 election -- if she's in favor of opinionated and outspoken, as I tend to be, then that was one clear-cut case where she could have sounded off forcefully.

    Is the knock on her, if any, that she would be deemed too liberal?


    I guess... (none / 0) (#6)
    by Platypus on Sat May 02, 2009 at 03:41:51 PM EST
    ... and choosing her would not diversify the Court's composition in terms of "ethnic background".

    Pam Karlan (none / 0) (#30)
    by Jacob Freeze on Sun May 03, 2009 at 10:31:37 AM EST
    Pam Karlan's brilliant essay THE PARADOXICAL STRUCTURE OF CONSTITUTIONAL LITIGATION is available online and just about every line of it is worth reading...
    The United States Supreme Court has pieced together a crazy quilt of constitutional doctrines that undercut its central goal of intelligently and efficiently refining broad constitutional commands. Constitutional law is primarily a way of regulating governments. With respect to those constitutional provisions that confer rights on specific individuals, one need not insist that these rights must inevitably trump countervailing governmental interests to recognize that they should generally be protected by more than mere "liability rules" under which the government is entitled to "destroy the initial entitlement if [it] is willing to pay an objectively determined value for it."

    Put differently, the overarching purpose of constitutional law is to deter or prevent deprivations of individuals' rights, and not simply to induce the government to internalize their costs or to compensate
    individuals who suffer them after the fact.

    gotta be a woman (5.00 / 2) (#8)
    by txpublicdefender on Sat May 02, 2009 at 04:46:16 PM EST
    I would be shocked if he did not select a woman.  The gender disparity on the Court really is inexcusable.  And it has hurt the Court's jurisprudence, IMO.

    There is no need for him to make a "consensus" pick.  There are enough Dems along with Republicans who believe that a qualified appointee deserves confirmation regardless of concerns over ideology for him to get pretty much anyone he would nominate appointed.  

    What I want:  a woman with a brilliant legal mind; someone who has the ability to bring other Justices on the Court to her side.

    No need for a "consensus" pick (5.00 / 2) (#11)
    by shoephone on Sat May 02, 2009 at 06:35:13 PM EST
    I agree. He should pick the best person possible, Republicans be da*ned! Even David Brooks is convinced the Republicans are going to oppose whomever Obama nominates so better for him to show some courage and conviction.

    Not holding my breath, however.


    She would have to be able to go (5.00 / 1) (#13)
    by hairspray on Sat May 02, 2009 at 06:46:27 PM EST
    toe to toe with Scalia who is fond of "needling" the women on the court.  According to Jeff Toobin in "The Nine" Scalia was almost cruel to Sandra Day Oconnor and not too inclined to Justice Ginsberg.  In fact, Toobin wrote about how distressed Souter was about many of the recent decisions and lack of civility from certain members of the court and almost quit a few years ago.  He should get the medal of honor (not G. Tenet) for saving the country from another Bush pick.

    Boy, that is really distressing to hear. (5.00 / 1) (#14)
    by Dr Molly on Sat May 02, 2009 at 06:54:58 PM EST
    You'd like to think that kind of stuff would not be happening there, of all places.

    "gotta be a woman"? (none / 0) (#20)
    by diogenes on Sat May 02, 2009 at 08:47:59 PM EST
    The last black pick was Clarence Thomas.  The last woman pick was Harriet Miers.  Obama should just pick the best available judge.

    Yeah, Who cares about representation. (5.00 / 2) (#21)
    by tigercourse on Sat May 02, 2009 at 09:34:49 PM EST
    It's funny. (1.00 / 0) (#27)
    by Dr Molly on Sun May 03, 2009 at 08:54:58 AM EST
    Because I don't think that's what I said here. I think what I said here was a comment to hairspray about her comment on Toobin's book.

    But, then again, yes.


    Somehow I suspect the women (none / 0) (#29)
    by brodie on Sun May 03, 2009 at 10:29:44 AM EST
    being mentioned to replace Souter would all have the ability and toughness to handle the retro sexists like Scalia.  Dunno about Sandy Day -- she came along in a far different era, when professional women were rare and they probably learned just to shut up and accept the abuse in order to survive in that overwhelmingly male world of the 50s.

    As for the rest, the lack of civility and so forth, it happens since we're dealing with human beings here who have their biases and strong opinions and who have to work in close quarters with the same people year after year.

    Way back ca '45-6, there was dissension on the Court between the Hugo Black faction and the Frankfurter group.  Black and Bill Douglas also disliked Rbt Jackson, or at least didn't want Truman to elevate him to CJ, as was being rumored.  Both, iirc, threatened to resign if that happened, while Jackson accused Black of unethical conduct from the Bench.  Quite a messy situation, which HST tried to remedy with a compromise (and crony) choice for CJ, one Fred Vinson, a poker playing bud of Truman's.

    As for Souter, while he seems like he might be the overly sensitive type, I identify with and applaud his more emotional response to the Court's outrageous theft of the 2000 election.      


    OMG Donald! (5.00 / 3) (#10)
    by oldpro on Sat May 02, 2009 at 05:59:54 PM EST
    You are a caution!

    Anita Hill.  Perfect payback.

    But only in the movies.


    OMG oldpro (5.00 / 3) (#26)
    by DFLer on Sun May 03, 2009 at 08:34:07 AM EST
    I love your use of the phrase
    You are a caution!

    You are the bees knees!


    Heh! Not to mention (none / 0) (#32)
    by oldpro on Sun May 03, 2009 at 04:37:24 PM EST
    "the top and the Coliseum!"

    Dammit...now I'm going to be humming that song all day long...


    I just want someone good. (5.00 / 2) (#19)
    by Anne on Sat May 02, 2009 at 08:09:57 PM EST
    I don't care what that person's gender is, what their ethnic background is, I don't even care how old he or she is.  As long as it is someone who wasn't previously writing memos for a Republican president, someone who doesn't have a track record as a judge or legal academician of interpreting or opining in ways that I can only characterize as clearly right of center.

    I'm not saying I want a dyed-in-the-wool liberal - or else! - but I definitely am not looking for someone that will make the conservatives high-five each other.

    If it's Cass Sunstein?  I don't know - I just can't go there.

    Totally agree on Sunstein. n/t (none / 0) (#34)
    by Meteor Blades on Mon May 04, 2009 at 01:58:59 AM EST
    Does it have be a judge? (none / 0) (#1)
    by Saul on Sat May 02, 2009 at 03:05:51 PM EST

    I wouldn't mind a Pol -- (none / 0) (#5)
    by brodie on Sat May 02, 2009 at 03:39:08 PM EST
    like Granholm for instance.  Last major pol to go on the Court -- if memory serves -- would have been Warren, no?  That one worked out very well for us libs.

    Then there are the two other Ps -- Practitioner and Perfesser..  But usually the former needs either some judge background or teaching at a major school.


    Sandra Day O'Connor (none / 0) (#22)
    by Peter G on Sat May 02, 2009 at 09:45:33 PM EST
    Although she was on the Arizona Court of Appeals (not even on the Supreme Court of AZ) when appointed to the Supreme Court of the U.S., SDO'C's principal experience was in the Arizona state legislature.

    Earl Warren was a DA, CA Attorney General and (none / 0) (#23)
    by JSN on Sat May 02, 2009 at 09:50:24 PM EST
    Governor before he was appointed Chief Justice.

    The first pick definitely (none / 0) (#2)
    by brodie on Sat May 02, 2009 at 03:17:50 PM EST
    seems to be lining up to be a woman, else I think the O team would step in fairly soon and correct the chatter that has emerged so far.

    Sotomayor would appear to have the most going for her in the two-fer sense.  She's moderate, so confirmable, and the first pick is one where Obama won't want to have drama.  And she's 55, which is still w/n the range O should be looking at to achieve longevity.

    If Ginsberg is the second J to step down, then O could have cover in that instance to name another woman -- either East Coast Elitist Elaine Kagan or, preferably Kim Wardlaw, the rare west of the Rockies pick.

    But I don't see O going for the female trifecta if he gets a 3d opening.  By that point, there could be a cynical Repub-MSM backlash enough to cause confirmation troubles.  

    I think Obama can pick whoever he (none / 0) (#9)
    by tigercourse on Sat May 02, 2009 at 05:18:08 PM EST
    wants. There won't be any meaningfull oposition from the GOP, and the people will support whoever he wants. It will be a woman. considering the tiny number of women in his cabinet, women's groups would storm the capital if he didn't.  Kagan sounds like the most likely in my completely uninformed opinion.

    Oh (none / 0) (#33)
    by Ga6thDem on Sun May 03, 2009 at 06:15:43 PM EST
    yes there's going to be huge opposition from the GOP. They're already gearing up to try to kill a nominee.

    What about Sears? (Chief Justice, GSC) (none / 0) (#12)
    by 1980Ford on Sat May 02, 2009 at 06:40:15 PM EST
    Not Kagan:

    Barack Obama administration seeks to change police questioning law

    The Obama administration is urging the US Supreme Court to overturn a landmark decision that stops police from questioning suspects unless they have a lawyer present.

    The Justice Department, in a brief signed by Elena Kagan, the solicitor general, said the 1986 decision "serves no real purpose" and offers only "meagre benefits".

    silly (none / 0) (#15)
    by txpublicdefender on Sat May 02, 2009 at 07:05:00 PM EST
    It's silliness to think that every position taken by a Solicitor General is the same position that person would take as a Supreme Court Justice.  She is advocating here on behalf of the Government, not putting forth her own personal views.

    Think of Thurgood Marshall (none / 0) (#24)
    by Peter G on Sat May 02, 2009 at 09:51:48 PM EST
    TXPD is 100% right.  Marshall was Solicitor General of the US before going on the Second Circuit and then the Supreme Court.  As SG, he advanced the government's position (i.e., a prosecutorial position) on criminal law.  That had nothing to do with the kind of Justice he became.  In fact, you really don't know at all.  A S.Ct. seat carries with it a kind of freedom that no other position has.  Felix Frankfurter was a liberal Harvard Law prof, who became (generally) a conservative on the Court.  Souter and Brennan both were moderate conservative judges on other courts who became liberals on the U.S. Supreme Court.  Blackmun was a basically a conservative judge who became a moderate and then a liberal.  I could go on and on.

    Are you saying Kagan's position is not Obama's? (none / 0) (#31)
    by 1980Ford on Sun May 03, 2009 at 02:20:14 PM EST
    Better to have someone able to convince him the right to remain silent is pretty OK.

    If we are seeking more diversity (none / 0) (#16)
    by Radiowalla on Sat May 02, 2009 at 07:24:21 PM EST
    on the court, is it valid to consider the religious make-up of the court?  On one level, I don't like the idea of having any discussion of a nominee's religion.   Ideally, it shouldn't matter. On the other hand, we have 5 Catholics already on the court.  Sotomeyer would be the 6th, if I am not mistaken.

    Posner is evil (none / 0) (#17)
    by progrocks on Sat May 02, 2009 at 07:47:58 PM EST
    and Epstein is satan.  

    Obama is smart, this is one area I trust him in completely, probably the most qualified to pick a nominee in the history of the presidency.

    Evil? (none / 0) (#18)
    by txpublicdefender on Sat May 02, 2009 at 07:53:17 PM EST
    Come on.  Posner is hardly evil.  That said, there is no chance in hell that Obama would appoint him to the Court.  Whoever floated that idea is nuts.  

    Granholm's 1st Amendment problem (none / 0) (#25)
    by Ben Masel on Sun May 03, 2009 at 03:04:43 AM EST
    Videogame censorship
    Judge Steeh cited a lack of conclusive proof linking virtual and real-life violence.

    "It would be impossible to separate the functional aspects of a video game from the expressive, inasmuch as they are so closely intertwined and dependent on each other in creating the virtual experience," wrote Steeh. He added that the First Amendment of the US Constitution covers both the expressive and interactive parts of video games.

    A spokesperson for Gov. Granholm told the Detroit Free Press this afternoon that the Governor's office "will be reviewing the judge's order and discussing legal options, including an appeal at the attorney general's office...But we will continue our efforts to protect kids from violent video games by working with retailers."

    Just to shake up the gender talk (none / 0) (#28)
    by Cream City on Sun May 03, 2009 at 10:08:19 AM EST
    here -- much as I also think another great woman is needed on the Supremes, I can wait for the next appt IF this appt is this white guy, one who would mix it up as one not a judge . . . and not of the majority of the Court now that is Catholic, too:

    Russ Feingold.  Good on gender issues, and even more important, this week he gave Obama the grade that is deserved -- a D -- on the Constitutional issues of state secrets.  We need that on the court now.

    But then we would need the help of every librul in the land to make sure the GOP did not win his seat.  We would miss him in Wisconsin, but we would make the sacrifice to see Russ on the Supremes.