Obama Supreme Court Picks Posted by: MichaelW
on Monday, January 26, 2009
Although it's awfully early to start this sort of prognostication, Tom Goldstein ponders who might be in the Supreme Court pipeline for Pres. Obama:
In my opinion, if there is an appointment this summer — which principally means that some otherwise serious candidates will not yet have had the time to be appointed to a court of appeals and develop experience there — there are three reasonably clear front runners, and one dark horse candidate. All are women, for the simple reason that there is only one woman on the Court now and I cannot imagine that the President will conclude that he cannot find a highly qualified female nominee.
The three obvious candidates are Elena Kagan (SG), Sonia Sotomayor (CA2), and Diane Wood (CA7). The sleeper candidate is Michigan Governor Jennifer Granholm.
All four were born between 1950 and 1960. Diane Wood is the most respected as a judge. But she is the oldest (born 1950), and as a consequence a seat this summer would likely be her one shot. Kagan and Granholm have the advantage of being the youngest (born in 1960 and 1959, respectively). Granholm has experience dealing with legislatures and actually representing people, as well as law enforcement experience as the state’s attorney general. Sonia Sotomayor has the advantage that she would be the first Hispanic nominee to the Court; she also served as a trial judge. She and Judge Wood have the longest written track record, but not one that would present any obstacle to confirmation with this Senate.
The only potential nominee on that list with whom I'm familiar is Diane Wood, a 7th Circuit Judge. She's a liberal but sober judge in my estimation, and would probably rule more along the lines of Souter rather than Ginsburg. However, I'm not sure she is of the same intellectual calibre as either Souter or Ginsburg. That's not to say that she's unintelligent or incapable of handling the job — in fact, Wood is quite smart. Instead, I think as a Justice she would bring to the Court a pragmatic, workmanlike attitude that is more in line with Justice Alito, rather than the scholarly approach seen in the likes of Ginsburg or Scalia. The advantage would be that she is much more predictable in her rulings since such judges tend to lean more on precedential value than novel legal theories.
I don't know much about Sonia Sotomayor. She was originally nominated to the Southern District for New York by Pres. George H.W. Bush as part of a package deal with Senators Moynihan and D'Amato (essentially making her a Moynihan appointee). Later she was raised to the Second Circuit amidst much sturm und drang from conservative interests, some of whom allegedly identified Sotomayor as an "judicial activist."Ed Whelan noted one particular case where she possibly sought to bury the case of some fireman who claimed they were discriminated against:
In Ricci, 19 white firefighters and one Hispanic firefighter charged that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. As [Second Circuit judge (and Clinton appointee) José] Cabranes puts it, “this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”
The district judge, Janet Bond Arterton, issued a 48-page summary-judgment order ruling against the firefighters. Summarizing Arterton’s opinion, Cabranes clearly finds highly unusual that Arterton could grant summary judgment for the city officials notwithstanding her acknowledgement that the evidence was sufficient to enable a jury to find that the city officials “were motivated by a concern that too many whites and not enough minorities would be promoted.” Further, Cabranes finds it remarkable that such a “path-breaking opinion” was “nevertheless unpublished.”
On appeal, Cabranes’s account indicates, the judicial effort to bury the firefighters’ claims got worse. In a case in which the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” in which two amicus briefs were filed, and in which oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel, consisting of Sotomayor and fellow Clinton appointees Rosemary Pooler and Robert Sack, “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about. Four months later, just three days before Cabranes issued his opinion—and after the panel evidently knew that it had evaded en banc review—“the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court’s opinion in the Westlaw and LexisNexis databases.”
Cabranes and his five colleagues clearly believe that Sotomayor and her panel colleagues acted as they did in order to bury the firefighters’ claims and to prevent en banc and Supreme Court review of them. Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”
I'm not sure what that case tells you about Sotomayor, or that it's even fairly leveled against her (she was just one of three judges on the panel). However, I think it's pretty likely that Sotomayor would be a reliably liberal ear on the Court.
As for Elena Kagan, who is Obama's nominee for SG despite having no appellate experience, from what I understand she is regarded as quite brilliant. Her work as dean of Harvard Law School has also been universallylauded. However, what sort of Justice she would make is difficult to answer. I think she's clearly qualified, and she's not been particularly political in her scholarly writings as far as I can tell. It's probably no great leap to assume that she falls on the liberal side of issues, but that apparently has not translated into being easily labeled as such. From the New York Times:
Ms. Kagan, 48, is dean of Harvard Law School. She has a powerful and varied résumé and has produced a substantial paper trail. But she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration’s broad assertionsof unilateral executive power in areas like detention, surveillance, interrogation and rendition.
Most of Ms. Kagan’s legal writings are dense, hedged and moderate. But in a 1995 review of a book on Senate confirmation fights, she made a statement she may come to regret.
“When the Senate ceases to engage nominees in meaningful discussion of legal issues,” she wrote, “the confirmation process takes on an air of vacuity and farce.” But she also described “the safest and surest route to the prize.” The trick, she said, is “alternating platitudinous statement and judicious silence.”
With the Senate safely in Democratic hands for at least the next two years, I seriously doubt that Kagan would face any challenge whatsoever in confirmation hearings for the Supreme Court. And owing to her age and academic experience, not to mention her appointment to the Solicitor General post, my best guess is that Kagan is the odds-on favorite to be Obama's first nominee.
Of course, all this speculating on who the nominee will be is rather meaningless without considering who will be replaced:
The retirement would almost certainly be a member of the Court’s left — Justice Stevens or Justice Souter. (Justice Ginsburg has made her intention to stay clear.) None of the likely replacements would reshape the Court in the slightest, including by laying the foundation for a shift in jurisprudence through dissenting opinions. None is a visionary and committed progressive. Each is on the left, but none is regarded as a classic liberal in the Warren-Court mold. Their ideology is more likely to resemble Souter, Ginsburg and Breyer on the left or Kennedy or O’Connor on the right; not Marshall or Brennan.
I agree with Goldstein in that, given who is most likely to step down, the new Justice will not substantively change the jurisprudence of the Court, no matter who Obama nominates. However, because she would be more in the intellectual/academic strain in her judicial temperament, I do think that Kagan would have potentially much more influence on the thinking of the Justices than either Wood or Sotomayor, and she may have more persuasive power over Kennedy and Roberts.
Again, it's a little early in the game to make any well-informed predictions. It may turn out that none of the Justices want to leave any time soon. If Obama were to lose his re-election bid, then he could be the first President since Jimmy Carter to have no nominations to the Court. If an when he does get the chance, however, I think Kagan gets the nod.
There doesn’t need to be a replacement. It might ruffle some feathers with the public, but Congress can increase the SCOTUS headcount. With Democrats controlling the House, Senate, and Presidency its not an out of grasp move. Update the current liberal oldtimers and add two new liberal judges. 7 to 4 ratio on liberals to conservative and/or constructionist judges.
The Executive orders Obama has racked up in a week’s time says the guy like to rule by Fiat. So this idea is probably not abhorrent to him.
I hate to jump on anyone, but the minute The Clown™ names someone to the Court, we on the right have to label them as "out of the mainstream" and "judicially incompetent" and "beholden to the abortion lobby." Invade their space. Go through their papers. Find out if they paid their nanny. Discover if tey rented bad videos. Examine their high school records to see if they wrote anything deemed "offensive."
Make the left squirm, like they made Roberts and Alito squirm. I am in for a fight. I will use all of my tools from my seat here to make the Left feel the same thing that they did to us for eight years.
There doesn’t need to be a replacement. It might ruffle some feathers with the public, but Congress can increase the SCOTUS headcount.
Nope - the Dems tried this, in 1937. Read up on FDR’s "Court Packing Plan," which blew up in Roosevelt’s face when even Democrats killed it (because Republicans had almost no numbers in the House or Senate: in that Seventy-fifth Congress (1937-39), the Dems had a 334-88 majority in the House, and a 76-17 (with three left-wing unattached members) majority in the Senate.
And despite those incredible numbers, the Dems couldn’t get a majority for Roosevelt’s ridiculous plan. Plus, it killed Senate Majority Leader Joseph T. Robinson of Arkansas, who died of heart failure during the floor fight over the legislation.
The Dems do not have those kind of numbers now, and if they and The Clown™ tried it, they would get slapped down so fast their heads would spin.