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Who should Obama nominate to replace Justice Stevens?

Who should Obama nominate to replace Justice Stevens?

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.

The really short list via WSJ.com:

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.compositedApril 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.

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U.S. Supreme Court image via Flickr user - NCinDC - by way of CreativeCommons.org

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27 comments

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5:36PM PDT on Apr 25, 2010

With the Supreme Courts recent decisions for repealing the animal abuse law and giving corporate free reign over campaigns, I don't think they need to go liberal but more conservative. The court is totally past the far left.

4:12PM PDT on Apr 25, 2010

I am hoping, with the fierceness President Obama is going after Goldman-"we're doing the work of god"-Sachs and financial reform, that he is finally tired of being nice to the Republicans. The Republican party has repeatedly shown that they are not going to act like reasonable adults or put aside differences for the common good, no matter how hard he tries.
I suggest a Buddhist. But since a Buddhist today has about as much chance to be on the Supreme Court as a Catholic as president in the 19th century, I'll end up backing whomever has the most liberal and educated track record. I just don't want another member on the side of the conglomerates instead of the people.
Yes, the poll makes no sense.
Thank you, Aaron, for an approachable article to a complex subject; the external links are especially appreciated.

2:51PM PDT on Apr 25, 2010

He should nominate a liberal diametrically opposed to the beliefs of idiots like Roberts, Scalia and Thomas. But will he? No. Because he is a coward who only knows how to kiss Repubiican conservative butt. He disappoints at all turns. If he doesn't put real liberals on that court we are all done for. You notice Bush had no problems putting real conservatives on the court.

6:54AM PDT on Apr 25, 2010

it won't matter who. After the progressives, socialists, and communists are defeated in November, the congress will have the abilty to withold the funding for the Supreme Court and the rest of the BS that is getting shoved down our throats

4:35AM PDT on Apr 25, 2010

The best qualified would, I think, be a good starting point.

9:55PM PDT on Apr 24, 2010

We need more progressives, not Republican lite. We need people to counter the Reagan/Bush stacked bench and all of their horrible rulings.

6:53PM PDT on Apr 24, 2010

The next Supreme Court Justice should be a Native American or Asian.

4:24PM PDT on Apr 24, 2010

whoever it will be has to suck .........

4:10PM PDT on Apr 24, 2010

Diane Wood. What's with the poll?????

3:09PM PDT on Apr 24, 2010

Understanding the difficulty getting anything through the obstructionist tiny right wing that is holding us hostage in Congress and the balless majority refusing to stand up to them, I am VERY concerned about this decision,. I didn't particularly like Sotomayer - she is too conservative but she did add an element that was missing. I do believe that we MUST have a very liberal voice on the court to counter the big three misogynists and corporate loving right wing judges - Roberts, Scalia and Thomas.
If we don't get that offset, kiss women's right to choose, free elections and personal rights good bye. It will be against the law for abortion, continuation of the court's ability to step into debated election outcomes (as in 2000) and the advancement of the rights of Corporations over the person

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