Who will replace Justice John Paul Stevens? While pundits, savants, and oracles across the SCOTUSphere pontificate and read Article III tea leaves, FantasySCOTUS.net conducted extensive and detailed polling to predict the next Justice. We have invited our nearly 5,000 members – who represent some of the closest and most ardent Court watchers – to weigh in on the vacancy, rank the candidates on the short list, and give their views on the potential nominees. We are still collecting data.
This is the third in a series of posts breaking down this data, as we attempt to add some certainty to the vast amounts of uncertainty emanating from the penumbras of the upcoming vacancy.
This week, we pit Elena Kagan, Diane Wood, and Merrick Garland in a head-to-head-to-head confirmation death match…
Shortly after Justice John Paul Stevens announced his upcoming retirement from the Supreme Court, Solicitor General Elena Kagan emerged as a leading candidate to fill his seat. The phrase “Team Kagan” started popping up all over the place (as we noted in our Twitter feed). Numerous users of Twitter and Facebook, as well as many bloggers and observers of the Court, proudly proclaimed themselves members of “Team Kagan.”
Over the weekend, Team Kagan may have gained another prominent member: former President Bill Clinton. In an interview with ABC’s “This Week,” Clinton said that he and his wife, Secretary of State Hillary Clinton, are simply too old for SCOTUS. “I’d like to see [President Obama] put someone in there, late 40s, early 50s, on the court and someone with a lot of energy for the job,” Clinton said.
Hmm…. Of the three leading candidates for the Court — Elena Kagan, Judge Diane Wood (7th Cir.), and Judge Merrick Garland (D.C. Cir.) — only one, Kagan, fits the “late forties / early fifties” demographic. Kagan is 49, turning 50 later this month (on April 28). Wood is 59 — although she’s in great health, and looks like a million bucks. Garland is 57.
Then ex-president Clinton took another step towards openly endorsing Kagan. He urged Obama to consider someone from outside the judiciary. Again, of the three leading candidates, Kagan is the only non-judge. (Judges Wood and Garland were appointed to their judicial posts — by President Clinton, as a matter of fact — in 1995 and 1997, respectively.)
Going into this weekend, Solicitor General Kagan was already viewed as the frontrunner for JPS’s seat. We’ve said so here at Above the Law (here and here), and she’s also the nominee predicted by our readers (and by Fantasy SCOTUS players, too). Tom Goldstein, over at SCOTUSblog, has flat-out declared that “[o]n October 4, 2010, Elena Kagan will ask her first question as a Supreme Court justice.”
The apparent support of a former president can only increase Kagan’s lead. But what about the issue of her (real or perceived) sexual orientation?
For weeks, the media laundry machine has been circulating news of Supreme Court Justice John Paul Stevens’s impending retirement. Now that the buzzer has gone off on that, it’s time to switch to the next cycle: speculation as to who President Barack Obama will nominate to replace him.
President Obama has been dragging his feet in his appointment of federal judges. We are relieved to hear that he is going to pick up the pace for announcing his Supreme Court pick. ABC News reports that the White House is prepared — thanks to Stevens’s public pondering — and that the announcement will come “within weeks.” Which isn’t really very helpful at all. Two weeks? Four weeks? Twelve weeks?
BLT reports on Obama’s speech from the Rose Garden today:
“While we cannot replace Justice Stevens’ experience or wisdom, I will seek someone in the coming weeks with similar qualities — an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people,” Obama said. “It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Please make it fast, Obama. We’re ready to move on to the confirmation hearing cycle!
With apologies to John Paul “I’m not dead yet” Stevens, speculation has been rampant about who will replace him, if he decides to retire.
Many of the names that came up after Souter retired are bubbling back to the surface, but U.S. Solicitor General Elena Kagan has to be considered the front runner. Obama hasn’t said anything and Stevens is, you know, still there — but that didn’t stop the Harvard Crimson from handicapping the chances of former Harvard Law School Dean Kagan:
In the face of Justice John Paul Stevens’ impending retirement, the nomination of former Harvard Law School Dean Elena Kagan for the open seat on the Supreme Court has become a likely prospect.
If she is selected as President Barack Obama’s nominee, Kagan—who currently serves as the nation’s first female Solicitor General—will face a number of challenges on the road toward confirmation, including her lack of experience as a judge, her religious background, and her stance on the military.
Man, the “impending retirement” of J.P. Stevens is turning into a a Monty Python skit. But, so long as we’re here, let’s take another look at that religious question. It might be the only thing that could scuttle Kagan’s ascendancy to the high Court…
You can’t go two clicks on the internet today without hearing something about the new term of the Supreme Court (or the NFL playoffs, or porn). I’ve got to agree with the WSJ Law Blog’s Ashby Jones that the most interesting SCOTUS related piece comes via Bloomberg and talks about Solicitor General Elena Kagan’s willingness to defend shareholder rights. The Law Blog summarizes Kagan’s pro-shareholder stances:
Exhibit A: In a case against Merck, Kagan’s office is asking the court to let shareholders wait longer to sue companies for securities fraud. The justices are considering whether to allow a lawsuit by investors who say the drugmaker deceived them about the risks posed by its Vioxx painkiller.
But Exhibit B is the case folks are buzzing about: Kagan and SEC lawyers are urging the court to ease the way for investors to sue mutual fund managers over their fees. The fund industry aims to avert more lawsuits by the 90 million investors who together hold $11 trillion in U.S. mutual funds.
Why worry about potentially messy government regulation of business when you can just sue the bastards?
More details from the Bloomberg article after the jump.
In her excellent interview with Chief Judge Alex Kozinski at the Ninth Circuit Judicial Conference, Solicitor General Elena Kagan poked gentle fun at the controversy surrounding what she should wear while arguing before the Supreme Court, as the first female Solicitor General. She quipped: “That this is the big question of the Washington Supreme Court bar probably tells you something about the Supreme Court bar.”
And yet, despite making light of the issue, Solicitor General Kagan simultaneously built the suspense over what she would wear to One First Street. She deflected Judge Kozinski’s inquiries regarding her attire: “I’ve ostentatiously kept it a secret as to what I’m doing. If I told you, I’d have to shoot you.” (She was willing to admit, under intense questioning from Judge Kozinski, that she would not be arguing in Jimmy Choos.)
On Wednesday, Solicitor General Kagan ended the suspense, when she appeared before the Court to argue the Citizens United case. For recaps of the argument in this important and highly charged case, see Adam Liptak and Dahlia Lithwick.
We’ll focus on what really matters: What did Solicitor General Kagan wear on Wednesday? She eschewed the traditional morning coat, or some feminized version thereof, in favor of a pantsuit.
And that’s where the disagreement begins. Leading Supreme Court correspondents had different takes on its color. Tony Mauro of the Legal Times described it as “a businesslike black pantsuit with an open-collared white blouse.” But Dahlia Lithwick of Slate described it as “a tasteful blue pantsuit.”
So, what color was the Solicitrix General’s pantsuit? We reached out for comment to someone who ought to know: the SG herself.
What should a female Solicitor General wear to the U.S. Supreme Court? It’s a hot-button issue. For some excellent analysis, see Dahlia Lithwick.
The topic of SCOTUS-appropriate attire for a Solicitrix General keeps coming up. It popped up yesterday in Solicitor General Elena Kagan’s interview with Chief Judge Alex Kozinski, at the Ninth Circuit Judicial Conference in Monterey.
From an attendee (who stayed at the conference longer than we did; we left the day after our panel):
In case you are not here, David: the solicitor general was just asked what she will wear at the Court, and she declined to say. But Judge Kozinski followed up to ask — expressly on your behalf [David Lat fka Article III Groupie] — whether she would be wearing Jimmy Choos. She said “no,” because the heels are too high to stand in while she argues.
Thought you’d want to know this breaking fashion news!
I am delighted to let you know that Martha Minow has agreed to serve as the next Dean of Harvard Law School. She will take up her duties on July 1.
Martha has been a member of the HLS faculty since 1981, and she has served the school with extraordinary dedication and energy. She is an eminent scholar of uncommon range and imagination, a greatly admired teacher who guided the school’s recent curricular review, and an outstanding citizen not only of the Law School but of the University, with impressive experience in academic leadership roles. She has a clear-eyed view of the challenges and opportunities facing the Law School, and a talent for bringing people together to work through important academic and institutional issues. Most of all, she has a passion for the law and for all that legal scholarship, education, and practice can do to advance the public good. I look forward to welcoming Martha to the University’s Council of Deans and to working closely with her in the years to come.
Faust also thanked interim Dean Howell Jackson for his service over the past few months.
More on Minow after the jump.
As 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 anyoneelse — 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.
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.
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The holiday season is upon us, and yet again, you have no idea what to get for the fickle lawyer in your life. We’re here to help. Even if your bonus check hasn’t arrived yet, any one of the gifts we’ve highlighted here could be a worthy substitute until your employer decides to make it rain.
We’ve got an eclectic selection for you to choose from, so settle in by that stack of documents yet to be reviewed and dig in…
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