The WSJ‘s Jess Bravin has an interesting article on a debate within Democratic circles over President Obama’s next Supreme Court pick.
Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.
One thing found interesting about the story was its characterization of various prospective nominees. Specifically, Bravin reports that the President’s lagging approval ratings could prompt a “less-controversial” nominee, such as D.C. Ciruict Judge Merrick Garland or Solicitor General Elena Kagan. I certainly agree that Judge Garland would be a relatively uncontroversial choice, as Garland has a well-deserved reputation as an exceptionally intelligent, moderate judge.
SG Kagan also commands wide respect, and is highly qualified even if she lacks judicial experience, but I wonder whether she would be a “less-controversial” choice than some prospective alternatives. As Ed Whelan notes, 31 Republicans voted against her confirmation to SG, suggesting she her nomination would start with a significant base of GOP opposition. Given the prevailing political winds, I also wonder whether some Republicans will be more willing to fight against a nominee picked from within the administration.
I was also struck by the article’s suggestion that Judge Diane Wood would spark greater opposition than Kagan, largely due to her opinions in abortion cases. As I’ve noted before, I’ve long thought Judge Wood was an obvious Democratic choice, and is so well-qualified that she would be safely confirmed. I would also think that, right now, it would be easier to confirm a highly regarded appellate judge from the midwest than an administration insider. But what do I know, I’m just a midwestern academic who’s old-fashioned enough to believe the Senate should be relatively deferential to a President’s judicial picks.
UPDATE: Justice Clinton? Color me skeptical.
UPDATE: More speculation here.
PersonFromPorlock says:
I suspect that this president has pretty well blown any automatic acceptance of his personnel choices. Too many nominees already withdrawn for good reasons.
February 9, 2010, 8:06 amWidmerpool says:
Good observations about Judge Wood–and don’t forget the Covington & Burling connection. Kagan would be problematic given what some allege as her politicization of the SG’s office (not exactly an earmark of a “judicial temperament”–particularly for someone with no judicial experience).
February 9, 2010, 8:20 amcboldt says:
While there certainly would some range of objection, I think the range is from “easily confirmed” to “confirmed over numerous objections.” I don’t see the degree of objection as important or costing political capital – that is, I think each nominee stands on its own.
February 9, 2010, 8:27 amThere wouldn’t be sufficient GOP objection to block any nominee. A few GOP would cross over, regardless. See Gang of 14 members, plus Hatch and likely some others.
Phil says:
Is a woman candidate pretty much a given here?
February 9, 2010, 8:55 amTalkingHead says:
I suspect the administration will have more than one vacancy on the SCOTUS to fill, but I wonder how it will handle that situation in light of the apparent urgency of getting the judges confirmed before the 2010 Senate midterm elections (and anticipated net Democratic seat loss). Two simultaneous nominations might result in more demands for horse-swapping, but if Obama follows the George W. model with seriatim nominations — Roberts and then Alito only after Roberts was confirmed — that will drag the process out longer and take it closer to November. The closer to November, the greater likelihood of a filibuster…
February 9, 2010, 8:58 amHouston Lawyer says:
Fat chance of a filibuster regardless of the nominee. Now any nominee can potentially blow up on her own.
February 9, 2010, 9:03 amruuffles says:
If the political climate renders only Garland “uncontroversial” to replace Stevens or Ginsburg, then who would Obama have to pick in the (unlikely) event a conservative leaves? He would have to avert both a republican filibuster and a Harriet Miers-esque reaction from his own party.
February 9, 2010, 9:03 amProsecutorial Indiscretion says:
Good observations about Judge Wood–and don’t forget the Covington & Burling connection. Kagan would be problematic given what some allege as her politicization of the SG’s office (not exactly an earmark of a “judicial temperament”–particularly for someone with no judicial experience).
I’ve heard quiet rumblings to this effect from time to time, but never specific allegations (us grunts don’t tend to move in those rarefied circles) – what exactly are people talking about? My impression of General Kagan has been that she’s liberal but not crazy, that she thinks like a lawyer and not like an ideologue, and that she’s got the brains and temperament to be an outstanding justice.
Judges Wood and Garland would also make outstanding choices, and I’mcomforted that these appear to be the three leading names at the moment. I’d rather be hearing names like Colloton, Brown, and Sutton, granted, but given the circumstances – a Democratic President with 59 Democrats in the Senate – I would have expected a much less appealing list.
February 9, 2010, 9:04 amEric Rasmusen says:
I’d like to see someone who wasn’t an appellate judge get appointed. SG Kagan has that in her favor.
February 9, 2010, 9:15 amPer Son says:
Dems should push whoever they want, and follow Bush’s attitude with SCOTUS nominations (with a smaller majority). They probably; however, will shrink from any fight.
That being said, I’d be very happy with Garland.
February 9, 2010, 10:16 amorca says:
Specifically, Bravin reports that the President’s lagging approval ratings could prompt a “less-controversial” nominee…
Gallup has Obama’s approval rating at 51% today, exactly where it was 6 months ago.
February 9, 2010, 10:17 amDave N. says:
Eric, I have heard this from others. While I agree that judicial experience isn’t a requirement for a SC justice (Chief Justice Rehnquist had none when he became an Associate Justice), I am not clear as to why judicial experience should be considered a negative.
February 9, 2010, 10:18 amB.D. says:
Hillary is too old.
February 9, 2010, 10:21 amAdam B. says:
It’s not that judicial experience is a negative as much as that having legislative, political or academic experience is a different positive which the Court needs. Look at the Court which decided Brown v Board, for instance.
I question the assumption that the President would *want* an easy confirmation in a midterm year, as opposed to a controversial pick (which might fail) in order to rally the base. Paging Professor Karlan!
February 9, 2010, 10:21 amwm13 says:
But the Senate isn’t deferential to the President’s picks. That’s like believing that the Due Process Clause doesn’t impose the restrictions of the Bill of Rights on the states, or that the “negative Commerce Clause” doesn’t restrict states’ ability to regulate interstate commerce. Many intelligent people once argued strenuously for those positions, but history has gone the other way, and doesn’t appear inclined to retrace its steps.
Our current President was a prime offender when he was a senator, so I can’t imagine why this would be a suitable moment to abandon tit-for-tat, which is the mathematically optimal strategy anyway.
February 9, 2010, 10:25 amlgm says:
My guess is that Republicans will filibuster any candidate to the left of Scalia. Now that they have proven that they have party discipline, why not use it?
Another possibility is that Republicans will ask for “balance”, balancing liberal and conservative picks. Given that the retirees are “liberal”, that also would move the court farther to the right.
February 9, 2010, 10:28 amruuffles says:
To provide a contrast, Reagan chose a controversial pick after loosing the 1986 midterms and the Senate.
February 9, 2010, 10:39 amAcquisitions Committee says:
But you have to believe those things to post here, don’t you?
February 9, 2010, 10:43 amuh_clem says:
I don’t know that the GOP will actually fillibuster the nominee(s), but you can bet that they’ll throw a class A hissy fit no matter who Obama nominates. Just the fact that Obama is fer’ him or her is enough to make a sizable faction agin’.
That’s just the way it works today.
So, I don’t see much mileage in Obama trying to pick an easily confirmed consensus choice. Such an animal doesn’t exist.
February 9, 2010, 10:43 amCJColucci says:
her nomination would start with a significant base of GOP opposition
Making allowances for gender, this statement applies to any potential Obama nominee.
February 9, 2010, 10:47 amJockeying Over the Next Nominee | Liberal Whoppers says:
[...] the rest here: Jockeying Over the Next Nominee [...]
February 9, 2010, 11:33 ambyomtov says:
I can’t imagine why this would be a suitable moment to abandon tit-for-tat, which is the mathematically optimal strategy anyway.
Without refernce to judicial nominations, could people quit throwing this allegation around. “Tit-for-tat” is a specific successful strategy in repeated Prisoners’ Dilemma games. Battles over judicial nominations don’t fit the model.
February 9, 2010, 11:38 amShelbyC says:
It’s a specific strategy in any iterative non-zero sum game. judicial nominations seem to fix exactly that model, no?
February 9, 2010, 11:42 amgeokstr says:
That’s his overall approval rating, probably influenced by whether people think he’s cool, and telegenic, and has nice pecs and is a good TP reader.
However, giant majorities think the actual positions he’s pushing on such minor issues as health care, the economy, and the deficit and how he’s doing it pretty much suck.
February 9, 2010, 11:53 amMark Field says:
Axelsrod identified 4 components which made the tit-for-tat strategy successful. One of them was forgiveness:
1. Unless provoked, the agent will always cooperate
February 9, 2010, 12:09 pm2. If provoked, the agent will retaliate
3. The agent is quick to forgive
4. The agent must have a good chance of competing against the opponent more than once.
thirdeblue says:
White Male = GOP can throw a hissy fit with no blowback.
Minority (black, Hispanic, woman, Asian, Indian, whatever): GOP steps carefully.
Double Minority: GOP is kneecapped.
There is about a 0% chance that Obama will nominate a white male for Supreme Court. Are there any qualified black, single-mothers out there? Maybe part Asian or something for good measure?
February 9, 2010, 12:11 pmSuperSkeptic says:
thirdeblue, a very liberal white male might make the perfect trojan horse. I put the odds at above 0% chance.
February 9, 2010, 12:16 pmSteve says:
Double Minority: GOP is kneecapped.
Yeah, we saw how the GOP totally had to pull their punches with the last nominee!
I hope Judge Wood is the next nominee. She is excellent, and since she’s white people will be able to admit she’s smart instead of suggesting she’s some dumbass affirmative action pick.
February 9, 2010, 12:26 pmorca says:
Keep telling yourself that.
I think the Republicans are saving their tantrum for when Obama names Scalia’s replacement.
February 9, 2010, 12:30 pmthirdeblue says:
Orca,
Republicans made some token noise about Sotomayor, but in the end she received 68 votes?
Exactly. If Obama gets to replace Scalia, it won’t matter how even-tempered, middle-of-the-road Obama’s pick might be…it’ll bring out ALL the long knives.
February 9, 2010, 12:42 pmEd says:
I can’t remember why, but I’d been under the impression Kagan was openly gay, which would seem like a lighting rod for controversy. Perhaps I’m mistaken?
February 9, 2010, 1:09 pmyankee says:
I dream of Associate Justice Reinhardt, but I think the “trojan horse” strategy might backfire.
February 9, 2010, 1:10 pmyankee says:
I find a lot of Google hits saying she’s “known” to be gay, or that “everybody knows” she’s gay, but I find no indication that she’s openly gay (though the closet door may be made of glass). It’s not clear what the basis for what “everybody knows” is either, other than that she’s single and childless.
February 9, 2010, 1:20 pmDave N. says:
The thought of that will give me nightmares for a week.
Reinhardt makes Bork look mainstream. Hell, Reinhardt makes ANY of the other names bandied about as a possible pick look like a right-wing ideologue
February 9, 2010, 1:34 pmCato The Elder says:
The key is punishment! There are better strategies (ex: Win-Stay, Lose-Shift), but you must ALWAYS punish defection, or risk being exploited (GTFT cooperative populations can be wholly “invaded” and taken over by defectors). That’s the reason humans and the multitude of known social species have evolved such robust cheater-detection systems. And there is no contention in my mind that the Democrats haven’t yet been punished for their bad behavior on judicial nominations. Prof. Adler is one of the good guys, but I’m glad the Republican Party has chosen not to go the way of the dodo.
February 9, 2010, 1:48 pmCato The Elder says:
Are you saying this first part in jest? I can’t tell.
February 9, 2010, 1:48 pmgeokstr says:
Why, thank you, I’ll be happy to do so.
And I’d love for you to keep telling yourself that his personal approval rating means that the public’s opinion of how he’s handling, you know, like the actual major issues and stuff means nothing. Also from the Gallup Poll, which shows that his job approval ratings on all the serious issues are way down in the tank:
February 9, 2010, 2:02 pm2/8/10 Gallup
Simon Dodd says:
Why?
In citing Brown as an example of why diversity is a “positive which the court needs,” your point is presumably that more diversity produces better decisions. Alright, then let’s look also at the court which decided Plessy: what were their backgrounds? Fuller and White were politicians (the latter a U.S. Senator, even), Shiras and Harlan were lawyers (the latter briefly a prosecutor), Brown—who wrote the damned thing—was a district court judge, and Peckham, Gray, and Field were state supreme Court justices. Of the entire court, only Brewer was a federal appellate judge before his appointment to the Supreme Court. Some good “diversity” did there!
February 9, 2010, 2:05 pmSimon Dodd says:
Successor. Scalia’s successor.
February 9, 2010, 2:08 pmgeokstr says:
Lawyers seem to think it is their birthright or something to have a lock on all judicial nominations. I’d love to see a non-lawyer get a nomination to SCOTUS.
February 9, 2010, 2:12 pmBeldar says:
If it were Clinton, wouldn’t that be the first time we’ve had a SCOTUS Justice who’d flunked a major bar exam? (Yale Law graduate Clinton flunked the D.C. bar, as she admitted in her autobiography, but she did pass the … wait for it … Arkansas bar.)
That someone’s failed a bar exam doesn’t necessarily mean he or she is stupid or a bad lawyer. And I don’t think Clinton is stupid. I’ve seen little to indicate that she was a particularly good lawyer, however, and absolutely nothing to indicate that she’s remotely qualified to be a good judge. Harriet Miers’ qualifications for the SCOTUS vastly exceeded Hillary Clinton’s, unless you think that experience which has nothing whatsoever to do with the practice of law (e.g., being First Lady) is a serious qualification.
February 9, 2010, 2:15 pmU.Va. Grad says:
If we’re going to have people who failed the bar, I’d much rather have Kathleen Sullivan than Hillary Clinton.
February 9, 2010, 2:19 pmSimon Dodd says:
I don’t see how that suggestion squares with the faintest awareness ignorance of what the Supreme Court spends its time doing. I’d love to see how your lay justice would cope with, say, Global Crossing v. Metrophone, or U.S. v. Santos, or the “pondcrete” case a few terms back (the caption escapes me). The Supreme Court is a lawyer’s job for the simple and sufficient reason that it is a court.
February 9, 2010, 2:21 pmSimon Dodd says:
Oops—poor proofreading on my part in that last comment. I tried to make a midair course correction to make the comment more polite; please consider the word “ignorance” in that first sentence struck.
February 9, 2010, 2:23 pmJRL says:
What exactly is a “moderate judge,” and why would anybody want one?
February 9, 2010, 2:35 pmDavid Welker says:
Indeed. What do you know.
[Apparently enough to keep you coming back to read and comment. ;-) ]
February 9, 2010, 2:43 pmNunzio says:
This is why the BCS system needs to be scrapped in favor of a national playoff system.
We could have Kagan v. Garland square off and the winner face the winner of Wood v. Granholm. The Senate would be duty bound to confirm the champion the next justice.
February 9, 2010, 3:28 pmMark Field says:
All 4 elements are key. Yes, there must be retaliation, but there must also be forgiveness.
February 9, 2010, 3:30 pmegd says:
I would actually expect Republicans to put up token resistance, but avoid a full-on filibuster of the President’s nominees. Ginsburg and Stevens, the likely retirees, are already quite liberal, and the Court is now a little right of center. Republicans should realize that Obama is going to appoint a liberal justice anyway, so they shouldn’t hold out for a conservative.
Maybe the Republican senators should put together a list of suggested liberal justices for the President from the ranks of the appellate courts. That would avoid a political clash where a winner would be hard to predict.
That’s assuming that the President is willing to accept suggestions from Republicans, something he’s been hard pressed to do thus far.
February 9, 2010, 3:46 pmSandy MacHoots says:
I don’t know. Two of the current FCC commissioners aren’t lawyers, and I expect they’d be at least as good at figuring out what their own regulations meant in Global Crossing as nine assorted lawyers. As for Santos, any criminal law that can’t be understood by a criminal of ordinary intelligence ought to be invalid. Do we really need to be a lawyer to understand the difference between “proceeds” and “receipts” and “profits”? And if we do, why should criminal punishment of non-lawyers depend on the distinctions?
I think a lay person on the court would be terrific. It’s too easy for lawyers to get caught up in the angels-on-the-head-of-a-pin questions and fail to see the larger picture. Not that it will ever happen, of course. But any time the law of the land gets so complicated that an ordinary intelligent person can’t understand it, it’s gotten way too complex.
February 9, 2010, 4:05 pmSandy MacHoots says:
On the main question, the Supreme Court is a political job and the primary qualification for the job is the judge’s politics. I thus disagree with the main post; if the Supreme Court is going to make political decisions, our Senators are obligated to do their best to make sure that they do what they can to make sure they get congenial judges.
The Republicans were on the ropes when Sotomayor was named, and in any event it’s extremely unlikely that Obama would have appointed anyone who would be more acceptable to the right. (I was pleasantly surprised he didn’t go with someone worse.) So the opposition was half-hearted. Now the Republicans are back on their feet, and it’s hard to see that they’d have any reason not to filibuster any leftist. What harm would it do?
February 9, 2010, 4:17 pmManny Garcia says:
The obvious choice is Clinton… BILL Clinton. Not only would the former pres relish the opportunity to extend his legacy (shared trivia answer with Taft), it would keep him off the campaign trail in 2012.
Also, Clinton is too likable and smooth-tongued to go down in flames during confirmation hearings.
As a jurist, I imagine that we could expect the unexpected from Justice Clinton. He would probably end up more like a second Kennedy, joining majorities to carry the opinion in his name.
All in all, far less dangerous than some other potential nominees… Bill would probably get my vote in the Senate.
February 9, 2010, 5:45 pmLaura Victoria says:
Pam Karlen is definitely a lesbian, and though she doesn’t announce same in every speech she has written and spoken openly about her partner of many years, an hispanic woman who works in corporate practice in the bay area and is also a childrens’ book author.
She is also a baseball fanatic and expert. Her Yale Law commencement address can be found online in audio format and is absolutely brilliant and hilarious.
I’m a conservative/libertarian, and I would support her wholeheartedly. She would be one of the few who could keep up the pace with Scalia, and I think they’d both enjoy it.
I also think she could well disarm a lot of Republicans. I just don’t want another statist, ex-DA type like Sotomayor who bends over backwards for the ridiculous doctrine of qualified immunity.
BTW: What’s up with the talk about Obama replacing Scalia? Is this assuming he gets a second term?
February 9, 2010, 5:56 pmArthurKirkland says:
What’s wrong with wishful thinking? Republicans have had disproportionate seating at the Court for many years, and any president could do much worse than nominating former president Obama.
February 9, 2010, 7:59 pmLaura(southernxyl) says:
Because Bill was disbarred, this is not likely IMO.
February 9, 2010, 9:40 pmJohn Herbison says:
There is no requirement that a member of the Supreme Court must be a member of the bar. The nomination of Bill Clinton would be intriguing, if only to see which Republicans’ heads would explode.
February 10, 2010, 3:03 amJoe says:
Wood seems like a good choice — she’s from Stevens’ old circuit, has intellectual cred even among the conservative wunderkinds over there and has enough lib cred to satisfy that side.* Her sex and appellate position, though the latter really is a deficit in some ways (heck, even Justice Thomas just said in a speech he wanted more diversity as in less appellate judges there) also helps.
An Obama insider (bad comparisons to Harriet Miers obligatory) like Kagan would be a harder call and why not leave her there when she barely would be at the job for a year?
Hey, I want someone like Pamela Karlan, but Woods will do in this environment, lol.
* Her conservative supporters will balance the criticism on that end and she will likely have some on the left (I have seen it already) who oppose her as not liberal enough. Overall, she seems like the sort of safe choice Obama would consider.
February 10, 2010, 10:15 amrayspace says:
There’s more to confirmability than judicial philosophy. As some of the comments note, any Obama nominee will be strongly opposed by an emboldened GOP. It helps with their base and their fund-raising. It will have nothing to do with the nominee’s qualifications.
That being said, I think Obama will replace Stevens with Harold Koh. It will be very difficult for the Republicans to oppose the first Asian-American nominee, especially with the 2012 elections coming up. True, the Republicans will scream “international law,” but the Democrats will keep intoning “Yale,” and Koh will win. Plus–and this is a matter of little consequence, but some–Koh is a Protestant, replacing the Protestant Stevens.
If Ginsburg leaves voluntarily (and I don’t think she’ll go until 2013, at the beginning of Obama’s second term), Kagan will be the replacement. Wood is 60 this year, and the Democratic base will have a fit if Obama doesn’t appoint someone younger. If Kagan got 9 Republican votes for her nomination as SG, that means there are 9 Republican Senators who would have to explain to their constituencies why they felt she was qualified to argue in front of the Supreme Court, but not to sit on it. Tough (but not impossible) argument to make.
February 10, 2010, 11:11 amBill Price says:
I think Specter and Kyl (both on the Judiciary Committee) are on the record saying that SG was one thing, but they’d have big problems with Kagan for SCt.
Also, Wood must draw some advantage having gone to U Texas undergrad and law school, especially if Stevens leaves. People might shy away from the idea of another Harvard Justice (no offense to Harvard, of course).
February 10, 2010, 12:48 pm