David Souter, Diane Wood, Elena Kagan, Jeffrey Rosen, SCOTUS, Sonia Sotomayor, Supreme Court

Supreme Speculation

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The upcoming retirement of Justice David Souter has led to lots of speculation about the next Supreme. We held a poll here at ATL, including some of the potential nominees that have been mentioned most often by the legal press. Almost 10,000 ATL readers put Sonia Sotomayor, with 28% of the vote, and Elena Kagan, with 20% of the vote, at the top of their list (see full results after the jump).
Obama says he wants a Supreme with empathy. Given that, Clerquette at Underneath Their Robes asks whether the smart money is on solicitor general and ex-Harvard dean Elena Kagan:

The question of course, is which judicial fox will occupy the Souter seat. As you know, our/ATL’s leaderboard points to General Kagan and Judge Sotomayor as front-runners. But, while some Court-watchers (and POTUS fans) are unabashedly agog at the possibility of the “diversity double” that would be accomplished by Judge Sotomayor’s nomination, a few interesting rumblings to the contrary have emerged. Point I: a number of commenters, including Adam Liptak of the New York Times, have pointed out that the notion of promoting “diversity” amongst the Supremes requires both consideration of personal characteristics and credentials and a good, hard look at the presumptive nominees’ path to power. Given the homogeneity of the current bench, which consists entirely of former federal judges (who are, admittedly, irresistible!), might POTUS seize this opportunity to mix it up a little? He has, after all, identified Justice Earl Warren as his personal judicial dreamboat, citing Justice Warren’s political background and the pragmatism with which it infused his juristic decision-making.
But wait: there’s more! In an article so chock-full of Article III gossip that Clerquette read much of it while breathing into a paper bag (narrowly avoiding a dramatic swoon) esteemed law professor Jeffrey Rosen writes that Judge Sotomayor may not be quite ready for prime time. Although she gets high marks for sass and biographical appeal — not insignificant qualities — Rosen reports that some have raised doubts about her strength on the merits. For example, he writes, many of his sources have “expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.” Gasp! Juicier yet, Rosen quotes a former Second Circuit clerk who opined that Sotomayor was “‘not that smart and kind of a bully on the bench.'” The clerk also noted that Judge Sotomayor had what sound (to this blogress) like patent indicia of divadom: specifically, said the clerk, “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.”

Wow, Professor Rosen, don’t hold back. Those are strong words, and are getting some strong reactions. Glenn Greenwald at Salon excoriated Rosen for the attack piece.
In our initial post, we proposed an unofficial “David Lat to SCOTUS” campaign. You all came up with some interesting suggestions as well. More speculation on Souter’s replacement, and some dark horse candidates, after the jump.


Justice Souter will be missed. Check out this nice round-up, by SCOTUSblog, of the other Supremes’ statements in response to his resignation announcement.
Linda Greenhouse, former Supreme Court reporter for the NYT, said in an interview that folks shouldn’t leap to conclusions:

[M]y expectation is that the administration is going to cast a wide-net for candidates and there’s not been enough discussion about the desirability of someone like another Sandra Day O’Connor. . .
Talking heads are too quickly jumping to conclusions on this and I really think there’s something to putting a politician in this spot — someone like Janet Napolitano who was just confirmed [as Secretary of Homeland Security], and has already been through a vigorous vetting process.

Did Greenhouse just endorse Napolitano or just someone like her?
As you all know, at this point, we’re just playing the waiting and rampant analysis game, as Biden draws up a list of nominees for Obama to review. Who will be on that list? Kagan? Sotomayor? Napolitano????
Here’s some folks who probably won’t make the cut, but who would make the list Biden sends to Obama a bit more fun. From ATL commenters:

Better candidates:
Eliot Spitzer
Sarah Palin (in “Team of Rivals” spirit)
Alan Stanford (not charged with any crime)
Harriet Miers
Jessica Simpson

1. Bill Clinton
2. Judge Judy

how many clerks do you think bill clinton would nail???

Karl Rove

It is undeniable that a vagina is a primary qualification for the SCOTUS. That just makes sense. However, some women have a condition called didelphic uterus, which results in – wait for it – TWO vaginas.
http://www.thesun.co.uk/sol/homepage/woman/real_life/article344794.ece
Can you imagine the power of a two-vaginaed Justice? She would be undefeatable in the political correctness rock-paper-scissor calculations made in modern liberal thought, where her double barreled crotch shotgun would double not only her female qualifications, but perhaps even count as a physical disability. Can you imagine?! Better still, if we were able to find such a woman who was of a pre-approved minority (African-American, Hispanic, and/or Native American), her qualifications would stack up like some sort of fucking appointee Voltron.
I hereby petition Obama to divert all funds not previously diverted from National Defense into searching for such a candidate and, if possible, somehow wrestling her overpowered frame into a cage for shipment to the SCOTUS.

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Hmmmm, we don’t imagine any of those will make Biden’s list. Here are the results of the poll that included more likely SCOTUS contenders:

SCOTUS Leaderboard: Is the Smart Money on Kagan? [Underneath Their Robes]
Three Questions for Linda Greenhouse on Obama’s Supreme Court pick [True/Slant]
The Case Against Sotomayor [The New Republic]
Obama Has Chance to Select Justice With Varied Résumé [New York Times]
Jeffrey Rosen, TNR and the anonymous smears against Sonia Sotomayor [Salon]
Statements from the Supreme Court on Justice Souter [SCOTUS Blog]
Earlier: ATL Poll: Who Should Replace SCOTUS Justice David Souter?

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