President Barack Obama is on schedule to name his selection to replace retiring Justice John Paul Stevens on the U.S. Supreme Court within the next month. The AP is reporting that Obama is already holding informal discussions with potential nominees, and on Wednesday Obama met with the leadership of both parties to discuss potential nominees and the confirmation process.
With less than a month remaining, I thought this might be a good time to solicit opinions regarding whom the nomination will be and why. I’ve improvised with the poll section below including a few of the more frequently mentioned candidates, but feel free to submit your write-ins in the comments.
One is Mr. Obama’s solicitor general, Elena Kagan, a former dean of Harvard Law School who was considered for the nomination that ultimately went to Justice Sonia Sotomayor.Despite her scholarly career, Ms. Kagan hasn’t produced the kind of provocative writings that could provide ammunition for conservative opponents, legal experts say.
Liberals see a surer voice in another finalist for last year’s vacancy, Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals in Chicago. On a court known for its intellectual heft, Judge Wood has proven a serious counterweight to such influential conservative judges as Richard Posner and Frank Easterbrook, legal observers say.
A third oft-mentioned name is Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. As a Justice Department official in the Clinton administration, Judge Garland oversaw investigations into the Oklahoma City federal building bombing and the Unabomber, Theodore Kaczynski.
That and several law-and-order decisions as an appellate judge have raised his standing with conservatives…
I’ll get to my pick in a moment, but first let’s consider some mitigating factors likely to influence Obama’s SCOTUS nominee.
Conservatives Need Not Apply:
This assertion is not a product of my, admittedly, left-leaning worldview. Rather, it stems from lengthy historical rightward shift of the Supreme Court and the importance of ideological balance on the court. The trend toward conservatism on the Court over the years is striking, the details of which are illustrated by NewsJunkiePost‘s Ole Ole Olson within his well researched April 12 post, “Restoring Balance to the Supreme Court.”
Obama is no doubt aware of this trend, and while the present political climate makes the selection of a hard-left candidate unlikely, the Court’s ideological imbalance makes anyone right-of-center out of the question. Further, Obama is reportedly unconcerned about the inevitable conservative outrage over his nominee. Christina Bellatoniimparts the administrations perspective:
Despite having one less Democrat in the Senate than when Sonia Sotomayor was confirmed last year, the administration isn’t limiting itself to reviewing only centrist candidates for the court vacancy, the official said.
“It doesn’t matter who he chooses, there is going to be a big ‘ol fight over it. So he doesn’t have to get sidetracked by those sorts of concerns,” the official told me. The GOP has attempted to obstruct “anything of consequence” put forth by the Obama administration since he took office, the official said. “The president is making this decision with a pretty clear view that whoever he chooses is going to provoke a strong reaction on the right,” the official added.
While this doesn’t rule out the relatively conservative Judge Garland as the selection, it suggests he probably isn’t at the top of Obama’s list.
More telling is that the White House has publicly stated their desire that who Obama decides to nominate, he or she should embody similar characteristics to the departing Justice Stephens. Both Wood and Kagan reportedly fit that description. Hmmm… How to decide?
Kagan v. Wood:
When Justice Stevens announced his retirement, fellow Care2 Blogger Jessica Pieklo wrote:
In my opinion Kagan is the current frontrunner and an excellent choice. As Solicitor General she’s argued a number of cases before the Court, including defending controversial Bush-era detention and security policies. She was the first woman dean of the Harvard Law School where she developed a reputation for hiring prominent conservative legal scholars and bridging disagreements between the liberal and conservative members of the faculty. She, more than anyone else disclosed to be in circulation right now, would sit in the spirit of retiring Justice Stevens.
Pieklo is far from alone in her assessment, and at the time, I wholeheartedly agreed. Glenn Greenwald has since persuaded me otherwise.
Greenwald, a former Constitutional law and civil rights litigator and prolific progressive blogger at Salon.com, positedApril 9 that a Kagan nomination could actually push the Court further to the right. In his April 13 post, “The case against Elana Kagan,” Greenwald reiterates and reinforces his previous arguments, posing this question, among others, to his readers:
Before any progressive considers supporting her nomination to the Court, shouldn’t they be able to point to some evidence, somewhere, that she opposed the core claims used to prop up the Bush/Cheney assault on the Constitution and the rule of law?
I’m not going to attempt to reproduce Greenwald’s arguments against Kagan’s nomination here, but I highly recommend reading the two above mentioned posts, as well as his April 17 post in which Greenwald dismantles a set of critical articles in response to his April 13 post. These articles are compelling and meticulously researched, but the persuasiveness of his criticisms of Kagan pale in comparison to his April 19 post, “The long, clear, inspiring record of Diane Wood.”
Wood’s ability to craft legal opinions to induce conservative judges to join her opinions is renowned, as is the respect she commands from them through unparalleled diligence and force of intellect. As a political matter, she’d have a long list of right-wing judges and professors at Chicago (where she still teaches) lined up to vouch for her, thus blunting efforts to depict her as some kind of Far Leftist. Her expertise in anti-trust and business law is (a) especially relevant now given the cases likely to come before the Court in the wake of the financial crisis and (b) rare for a federal judge on the liberal/Democratic side. The similarity between her jurisprudence and Justice Stevens’ is striking and easy to document, thus ensuring that (at the very least) she will maintain the Court’s balance; unlike a Kagan selection, there is no risk Wood will move the Court to the Right and, in some important respects, could very well do the opposite.
Clearly, Greenwald has me convinced that Wood is the appropriate choice. This is not to say that Kagan would be a poor choice. Greenwald, himself, acknowledged the difficulties of assessing the judicial philosophy of a non-judge. If Kagan were replacing a staunch conservative like Justice Scalia, for example, rather than the liberal minded Stevens, the deficiencies of her record would be far less concerning.
But enough about my choice. The floor is now open for your nominations.
U.S. Supreme Court image via Flickr user - NCinDC - by way of CreativeCommons.org
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