Conservatives won’t be happy with President Obama’s pick to succeed Justice David Souter on the U.S. Supreme Court. But some nominees are more noxious than others. Of the names surfacing on SCOTUS short-lists, who can conservatives live with — and who would drive them up the wall?
We reached out to Curt Levey, Executive Director of the Committee for Justice, and solicited his thoughts on the Obama shortlisters. More specifically, we asked him to rank the possible nominees from most problematic to least.
Levey kindly obliged. Assuming the nominee will be a woman, an assumption that is almost universally shared, he grouped the most commonly mentioned names into three groups.
In the first tier — consisting of the most problematic nominees, with “judicial activism guaranteed” — Levey listed three: Judge Sonia Sotomayor, of the Second Circuit; Judge Diane Wood, of the Seventh Circuit; and Kathleen Sullivan, former dean of Stanford Law School (and one of the most famous failers of the California bar exam, along with this guy).
For the second tier — containing nominees who are still “very liberal,” but might have some respect for the rule of law, “if only because they haven’t proved otherwise yet” — Levey mentioned three: Solicitor General Elena Kagan; Michigan Governor Jennifer Granholm; and Secretary of Homeland Security Janet Napolitano.
Finally, in the third tier, Levey mentioned two names: Justice Leah Ward Sears, of the Georgia Supreme Court, and Judge Kim McLane Wardlaw, of the Ninth Circuit. He described Justice Sears and Judge Wardlaw as jurists who have at least “shown some respect for the rule of law.”
The bad news for conservatives: the nominee will probably come from Levey’s top two tiers.
Read more, after the jump.
From Jan Crawford Greenburg of ABC News, one of the most well-connected of Court watchers, writing over at her blog, Legalities:
[Judge Wood] is among the top three prospects Obama is considering, along with Judge Sonia Sotomayor and Solicitor General Elena Kagan, sources tell me. Like those two, she’s filled out the exhaustive questionnaire and undergone the intensive vetting and FBI background check. There’s one thing left: the crucial interview with the President.
Our sources are also focused on these three names. As we wrote last week, in our handicapping of the race to One First Street, “this strikes us as a three-person race: Elena Kagan vs. Diane Wood vs. Sonia Sotomayor.”
If the prospect of Justice Wood sends shivers up your spine — back in 2005, she was described on Underneath Their Robes as “a liberal version of Nino,” and therefore “so freakin’ scary” — then we have some disturbing news for you. Judge Wood is visiting Washington today, for what appears to be an unscheduled visit.
Be afraid, be very afraid.
P.S. Speaking of judges and courts, will economic tough times lead to a surge in clerkship applications? For those of you interested in clerking, check out the redesigned Law Clerk Addict site, for the 2010-11 judicial year.
Committee for Justice Blog
Judge Wood Goes to Washington [Legalities / ABC News]
Earlier: Supreme Speculation: And Then There Were Six