Orrin Hatch, Politics, SCOTUS, Supreme Court

SCOTUS Speculation: Will Obama's Pick Tick Off Conservatives?Plus some thoughts on a second Justice Thomas.

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Yesterday I predicted that President Obama will nominate Judge Diane Wood (7th Cir.) to the Supreme Court. My colleague Elie is on record as predicting that Obama will nominate Solicitor General Elena Kagan.

Both of these predictions still seem viable, in light of how Senator Orrin Hatch (R-UT) reacted after meeting with Obama yesterday to talk about SCOTUS nominees. From the Salt Lake Tribune:

President Barack Obama invited Sen. Orrin Hatch into the Oval Office for a private discussion Wednesday about his impending Supreme Court pick — and then Hatch immediately drove downtown to the Cato Institute where he ripped the president’s approach to nominating judges….

At a Cato event billed as a speech on health care, Hatch said Obama has clearly looked for qualifications that go beyond a strict adherence to the Constitution.

“Last summer, President Obama talked often about how judges should be guided by their empathy. This year, the buzz phrase seems to be core constitutional values,” Hatch said. “This is the same old thing, just another cloaking device for judges who seek to control the Constitution.”

So what exactly went down at the Obama-Hatch tête-à-tête?

It seems that Hatch emerged from the meeting unhappy. So we’re guessing that Obama probably telegraphed to Hatch that the nominee isn’t going to be a consensus nominee — or even Judge Merrick Garland of the D.C. Circuit, who would be the candidate most palatable to conservatives. Rather, the nominee is probably going to be Judge Wood, Solicitor General Kagan, or Judge Sidney Thomas (9th Cir.), all of whom have been criticized by the right.

We’re guessing that the Obama-Hatch conversation went something like this. Obama told Hatch that he has interviewed four finalists for the seat, as has been widely reported by the media, and that the nominee is most likely going to be one of those four. Hatch then expressed to the president that he’s not thrilled by the four names (with the possible exception of Garland), and that he and his fellow Senate Republicans would very much appreciate a more bipartisan nominee.

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Obama responded by thanking Hatch for his views and pledging to take them into account. He probably then informed Hatch that the nominee will be announced next week, and that he’d be grateful if Hatch would receive the nominee with an open mind. Hatch said he and his Republican colleagues on the Senate Judiciary Committee would give the nominee a full and fair hearing. And that was that — before Hatch headed over to Cato to complain about Obama’s judicial picks.

(Obama also met with Senator Jon Kyl (R-AZ) yesterday to talk about SCOTUS stuff. We’re guessing that meeting went down in similar fashion.)

In other SCOTUS news, the New York Times has a nice profile of Judge Sidney Thomas (9th Cir.). Here’s what he’d bring to the bench, according to the Times:

His long record as a lawyer in private practice, 17 years, would set Judge Thomas apart from most of the justices he would join if selected; before coming to the court, they spent the bulk of their careers on the bench, in government service or in academia. He would bring other kinds of diversity to the court as well. A graduate of Montana State University and the University of Montana law school, he would be the only current justice whose law degree is not from Harvard, Yale or Columbia. And as a Presbyterian, he would also be the sole Protestant on the court.

Although Judge Thomas is a very well-regarded member of the Ninth Circuit, he’s probably still a long shot (as noted in the NYT piece). As we observed yesterday, he’s lacking some important attributes possessed by Kagan and Wood — namely, breasts.

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Judge Thomas might not add gender diversity to the Court, but he would contribute much-needed facial hair diversity. With the exception of the mustache-sporting Justice Thomas, all of the current justices are clean-shaven. Judge Sid Thomas, in contrast, has a big white beard (which ATL commenters seem to appreciate, and which would probably result in him getting stuck playing Santa Claus at the Supreme Court Christmas party).

Judge Thomas would, however, reduce surname diversity at the Court. Two out of the nine justices would have the last name of “Thomas.”

But it wouldn’t be hard to tell the two Justice Thomases apart at oral argument. One is white. And talks.

P.S. To paraphrase a certain Harvard 3L, “I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to speak less at oral argument.”

Obama, Hatch talk about Supreme Court choices in private chat [Salt Lake Tribune via WSJ Law Blog]
Long Shot for High Court Has Reputation for Compassion and Persuasion [New York Times]
Obama to make Supreme Court decision soon, aides say [Washington Post]

Earlier: SCOTUS Speculation: Could It Be Wood?
Judicial Sight-ations: Justice Stevens, and Several Potential Successors, in Chicago
Did Bill Clinton Just Join Team Kagan? And what team does Elena Kagan play for?

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