SCOTUS Nominees

The latest batch of presidential papers from the Clinton Administration, recently released to the public, contain some fun nuggets for law nerds. We’ve mentioned a few of them already — e.g., the time that a pre-robescent Elena Kagan, then a White House staffer, dropped the f-bomb in a memo to White House counsel Jack Quinn. Another just came to light today: as reported by Tony Mauro, a pre-robescent John Roberts, then in private practice at Hogan & Hartson, came close to representing President Clinton in the U.S. Supreme Court in Clinton v. Jones.

The papers contain other interesting tidbits too — and some are sad rather than salacious. For example, there’s the story of how a brilliant and distinguished circuit judge came thisclose to landing a seat on the Supreme Court, until health problems derailed his nomination….

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Justice Stephen Breyer

On Friday, the National Archives unsealed a fifth batch of Clinton Administration presidential papers. The documents were originally released by the William J. Clinton Presidential Library in Little Rock. Let’s get these pesky papers out of the way before Hillary Clinton, author of a new memoir (affiliate link), launches her presidential bid.

The latest papers contain some juicy tidbits for legal nerds. For example, as noted in Morning Docket, then-Judge Stephen Breyer got dissed as a “rather cold fish” while being considered for a Supreme Court seat (the seat that ultimately went to Justice Ruth Bader Ginsburg).

The papers contain candid assessments of Justices Breyer and Ginsburg, as well as other fun nuggets. Here are some highlights:

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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…

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When I first read this headline on the ABA Journal this morning, I became very excited:

Poll Finds 55% Would Support Openly Gay Justice

Gay Justice? How awesome! Justice is way too straight. Basic black letter laws and stuffy proceedings. It’d be far more exciting and visually interesting if Lady Justice was a little bit more… flamboyant. I’ve been to gay Halloween and it’s a lot more fun.

Sadly, my hopes for plastering pink triangles on courthouses were dashed when I actually clicked on the link. A Vanity Fair/CBS News poll found that 55% of Americans would support an openly gay Supreme Court justice, while 40% of those polled would oppose an openly gay SCOTUS nominee. That’s boring. All that shows is that 40% of poll respondents are raging homophobes. I’m pretty sure we didn’t need Vanity Fair to tell us that.

The only question is whether Obama will enrage the anti-gay people with his next SCOTUS nominee…

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