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Supreme Speculation: And Then There Were Six

Friday, May 15, 2009 3:08 PM - By David Lat

SCOTUS speculation.jpgAs noted in yesterday’s Morning Docket, President Obama has reportedly narrowed his search for a Supreme Court justice to a shortlist of six. From CNN:

Among the finalists are federal appeals court judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and Michigan Gov. Jennifer Granholm, said the sources, who asked not to be identified because they were not authorized to speak by the White House.

Women make up all but one of the top candidates currently being given serious scrutiny, the sources said.

Also on the list, a source said, was California Supreme Court Justice Carlos Moreno. The 60-year-old Los Angeles, California, native was not among the early favorites mentioned by legal analysts and the media. White House press secretary Robert Gibbs previously hinted some of the names under consideration were under the political radar.

Who will get the nod? To be totally honest, it’s pretty impossible to say at this point. Once you get down to a short list of a half-dozen, the choice belongs to the president (as the White House seems to be emphasizing to interest groups). Anything can happen.

President Obama will meet personally with some of the finalists, and his final choice will no doubt be influenced by those meetings. A leading contender can kill his or her chances by coming across poorly in the interview (as former Judge J. Michael Luttig did when he met with President Bush, according to Jan Crawford Greenburg in Supreme Conflict).

But none of this will stop us — or anyone else — from speculating. Speculation is fun! And since we probably won’t have a nominee until after Memorial Day, for the reasons identified by Marc Ambinder of The Atlantic, we might as well pass the time with parlor games.

Additional discussion, plus a pair of polls, after the jump.

Despite the presence on the list of Jennifer Granholm, Carlos Moreno, and Janet Napolitano, this strikes us as a three-person race: Elena Kagan vs. Diane Wood vs. Sonia Sotomayor.

Justice Moreno could be regarded as the token male of the group. Notwithstanding the views of Professor Alan Dershowitz, it’s fairly clear that two X chromosomes are required of the next justice. As Linda Greenhouse put it, “In this day and age you can’t have a Supreme Court of eight guys and one 76 year-old woman.” Maybe Moreno will be nominated if the five others promise to overrule Roe v. Wade when interviewed by Obama.

As for Governor Granholm and Secretary Napolitano, it would seem like they have enough on their plates right now (e.g., the collapse of the U.S. auto industry; the swine flu that will kill us all). Everyone likes to talk about appointing politicians to the Court, but it’s sort of like quitting smoking: everyone says they want to do it, but nobody ever does (cough cough, Obama). The days of Earl Warren and Hugo Black are well behind us.

As between Elena Kagan, Sonia Sotomayor, and Diane Wood, who has the edge? Some say Sotomayor; some say Kagan. Right now — with the caveat, of course, that the situation is extremely fluid — we’re thinking Wood. There are several reasons:

1. Familiarity: As a former full-time faculty member at the University of Chicago Law School — where Obama used to teach, and where she still teaches — Judge Wood is personally closest to Obama. She also enjoys support among Obama advisers, especially those with Chicago ties.

2. Reputation: Some prominent pundits, such as Jeffrey Rosen, have questioned the qualifications of Judge Sotomayor. Even if these attacks are unfounded, as her defenders claim, they have muddied the waters. Meanwhile, nobody questions the judicial abilities of Judge Wood — who is per se brilliant, as a member of the Elect (OT 1976 / Blackmun).

As a former legal academic, Judge Wood is widely viewed as having the ability to go toe-to-toe with Nino and other Court conservatives. Her service on the Seventh Circuit reinforces this impression. From the New York Times:

Judge Wood has established herself on the United States Court of Appeals for the Seventh Circuit, in the view of scholars and lawyers, as an unflinching and spirited intellectual counterweight to Judges Posner and Easterbrook. She has taken on that pair and some of the court’s other conservative judges across a wide range of cases including abortion, immigration and access to courts.

Furthermore, one empirical analysis of judicial performance places her ahead of Sotomayor. Even if one criticizes the study’s methodology — a Sotomayor supporter we talked to dismissed it as “ridiculous,” questioning how it measures productivity and independence — it certainly doesn’t hurt Wood to have numbers on her side.

3. Age: Of the three, Judge Wood is the oldest, at 58 (born July 4, 1950). Judge Sotomayor is 54 (born June 25, 1954), and General Kagan just turned 49 (born April 28, 1960).

Normally picking a justice is like picking a mistress: the younger the better. Presidents generally want their appointees to influence jurisprudence for decades to come (assuming they don’t turn out like Earl Warren or David Souter).

But this is a somewhat different situation: the few years that Judge Wood has on her two main rivals could actually help her. Judge Wood, even if older than Judge Sotomayor and General Kagan, is still young enough to sit on the Court. As she gets closer to the big 6-0, however, the window for her appointing her will start to close. So President Obama may want to place her on the Court now, before it’s too late.

Speaking of another big 6-0, Obama right now is looking at a very cooperative Senate (after the Arlen Specter defection, and assuming the seating of Al Franken). Given this political advantage, which may or may not endure, now may be the best time to seat Wood, who is perceived by many (rightly or wrongly) as more “progressive” than her main competitors.

Finally, although Justices John Paul Stevens and Ruth Bader Ginsburg are still going strong, their age and health issues cannot be ignored. There’s a good chance that Obama will have at least one or two seats to fill later in his presidency. These seats could easily go to Sotomayor or Kagan, who are still several years away from turning 60 — especially Kagan, who isn’t even 50 yet, and whose candidacy will only grow stronger if she serves well as solicitor general (just like the justice for whom she clerked, Thurgood Marshall, who served as SG before becoming an associate justice).

Anyway, these are just our views. What do you think? Express your views in the comments, or by voting in our two polls. The first is prescriptive: of the SCOTUS finalists, who do you think SHOULD be our next justice? The second is predictive: who do you think WILL be our next justice?


High court selection process down to finalists [CNN]
Marc Ambinder’s SCOTUS Wrap, 5/13 [The Atlantic Politics Channel]
SCOTUS Leaderboard: Is it Sotomayor … by a Nose? [Underneath Their Robes]
The Logic of Picking Elena Kagan [PostPartisan / Washington Post]
Judge Sonia Sotomayor: What the Data Show [Volokh Conspiracy via National Law Journal]
Obama rebuffs advice on top court [CNN]
Video: Gender and the Supreme Court [CNN]

Earlier: ATL Poll: Who Should Replace SCOTUS Justice David Souter?

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Posted in: Diane Wood, Elena Kagan, Reader Polls, SCOTUS, SCOTUS Potential, Sonia Sotomayor, Supreme Court

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