Who Would Obama Nominate to the Supreme Court?:
Over at Prawfs, Andrew Siegel had put together a list of potential Obama nominees to the Supreme Court if Obama wins in November and a Justice resigns. I think Andrew's list is particularly thoughtful; it's probably as close as we can get at this point to a prospective Obama "short list." Here's the list:
1) I would guess that Diane Wood and Merrick Garland would be the most easily confirmed if nominated. Both have a solid reputation for being extremely smart and liberal-but-not-overwhelmingly-ideological. Both are experienced judges and reasonably known quantities. They fall roughly into the Ginsburg/Breyer category, and I suspect either would be easily confirmed.
2) As many have noted, Sonia Sotomayor is absolutely perfect on paper — female Hispanic from Yale Law who is a former prosecutor and Bush 41 nominee to the District Court. But I agree with Andrew's suggestion that many overestimate her chances. Sotomayor is a solid judge, but my sense is that she hasn't brought a lot of pizzazz to the Second Circuit. I would guess Obama the former law professor would aim for someone with more star power. (Plus, while Bush nominated her to the SDNY, it was only as part of a deal; she was a Moynihan pick, not a GOP pick. So I don't think her Bush 41 nomination to the District Court would actually mean anything.)
3) My own guess is that a President Obama would nominate Deval Patrick, currently the Governor of Massachusetts, if one of the male Justices retired. Here's my thinking. First, Patrick and Obama share similar stories, and I understand they are friends. Second, Patrick's career reveals the kind of empathy and activism that Obama has said he values and that is harder to find among the career judges. Third, Patrick has more charisma than most of the others on the list.
It's true that some interest groups on the left might not think Patrick is their ideal candidate. In particular, he is neither a woman nor Hispanic. But I can't imagine many on the left would object to a Patrick nomination: he has the potential to become a real liberal lion in the Justice Marshall mold, and my sense is that this is what most activists on the liberal side want more than anything else. It's true that conservatives would oppose Patrick, but a popular President with a friendly Senate can probably take that kind of risk.
Anyway, that's my random speculation, probably not worth the e-paper it's printed on.
1) Diane WoodI'll add my own uninformed guesses and random thoughts to everyone else's:
2) Elena Kagan
3) Merrick Garland
4) Cass Sunstein
5) Teresa Wynn Roseborough
6) Leah Ward Sears
7) Sonia Sotomayor
8) Deval Patrick
9) Eric Holder
10) Barrington Parker, Jr.
1) I would guess that Diane Wood and Merrick Garland would be the most easily confirmed if nominated. Both have a solid reputation for being extremely smart and liberal-but-not-overwhelmingly-ideological. Both are experienced judges and reasonably known quantities. They fall roughly into the Ginsburg/Breyer category, and I suspect either would be easily confirmed.
2) As many have noted, Sonia Sotomayor is absolutely perfect on paper — female Hispanic from Yale Law who is a former prosecutor and Bush 41 nominee to the District Court. But I agree with Andrew's suggestion that many overestimate her chances. Sotomayor is a solid judge, but my sense is that she hasn't brought a lot of pizzazz to the Second Circuit. I would guess Obama the former law professor would aim for someone with more star power. (Plus, while Bush nominated her to the SDNY, it was only as part of a deal; she was a Moynihan pick, not a GOP pick. So I don't think her Bush 41 nomination to the District Court would actually mean anything.)
3) My own guess is that a President Obama would nominate Deval Patrick, currently the Governor of Massachusetts, if one of the male Justices retired. Here's my thinking. First, Patrick and Obama share similar stories, and I understand they are friends. Second, Patrick's career reveals the kind of empathy and activism that Obama has said he values and that is harder to find among the career judges. Third, Patrick has more charisma than most of the others on the list.
It's true that some interest groups on the left might not think Patrick is their ideal candidate. In particular, he is neither a woman nor Hispanic. But I can't imagine many on the left would object to a Patrick nomination: he has the potential to become a real liberal lion in the Justice Marshall mold, and my sense is that this is what most activists on the liberal side want more than anything else. It's true that conservatives would oppose Patrick, but a popular President with a friendly Senate can probably take that kind of risk.
Anyway, that's my random speculation, probably not worth the e-paper it's printed on.
My expectation is that any Obama nominees would be significantly more liberal than the Justices they are likely to replace. At the same time, the ideology of the Justices at the ends matters less than that of those in the center in terms of the actual direction of the Court. So it may be that an Obama nominee would be very liberal, but that the difference would manifest itself mostly in solo concurrences and dissents that don't actually reflect the holding of the Court. Just my speculation, of course.
It's not like Patrick's a serious legal thinker, he's a politician. And politicians have much more of a record than do even the more controversial academics. After all, academics only speak for themselves and have no authority outside their classrooms. I suspect that if Obama is foolish enough to nominate Patrick, he may not get a majority even in a Democrat-dominated Senate.
Wood is smart, but she's too much of another Breyer.
I also wonder if Judge Berzon from the Ninth Circuit would make his list.
I just wonder if he would actually nominate Patrick, and risk losing some "political capital", as they call it. Not that the Governor isn't qualified, because I think he probably is, but the appearance of cronyism or identity politics (though it seems nobody really has a problem with this when it comes to SCOTUS nominees) would be something I'd think a recently voted-in President Obama would want to avoid.
I do remember, though, reading about his ideal nominee, and the list did include qualities which Patrick has, so perhaps my reservation isn't worth the e-paper, either.
I disagree. For better or worse, things that annoy David Bernstein often do not annoy Democratic Senators. In what I think is the case you mention, Patrick was trying to help the placement of halfway houses to help reintegrate outsiders back into society. While you and I might see hsi position as insufficiently respectful of the First Amendment, I suspect most Democratic Senators would think it a factor in favor of the nomination rather than a factor against.
I would like to know how you think Obama could pick some one more liberal than Justice Ginsburg.
I suspect being tarred by association with the VC crowd is not high on the list of reasons Obama would not nominate Randy.
And as Orin notes, you have to consider agenda change. Conservatives are in charge of the Court so they can basically set the agenda. The fact that she votes often against the conservative agenda does not mean that she would aggressively push a liberal agenda, a la the Warren Court. Of course, we don't really know.
Sunstein would certainly be an interesting choice.
Frank, this may not be your main point, but I strongly disagree with this. There is no agenda at the current court excerpt for resolving splits that bubble up from the lower courts. Sure, cases are decided, one way or the other, sometimes in one direction and sometimes in the other. But there is no "agenda" in the Warren Court sense of Justices who want to take the law in a particular way and who comb through the docket and grant the cases they want to get there.
He'll also face opposition from veterans' groups after his false claim to have attended KIA funerals (which is a pretty good illustration of his character, overall).
This may not amount to a hill of beans. If a President Obama wants him, the Senate will give him to him. I am not a lawyer, but I suspect that Obama's first nomination, at least, will come from the bench rather than the ranks of politicians or even the professoriat.
You probably couldn't do worse than a couple of the incumbents by grabbing two random people off the street, like a pressgang from the War of 1812. (Who those two awful incumbents are may vary depending on your own politics, but I suspect most Court watchers could name two they'd like to send to the showers).
I think Prof. Goodwin Liu would be an awesome choice, although he may be a bit too young.
I suppose I might as well start the idle-and-completely-baseless speculation: Neal Katyal.
As a matter of professional craft, judges on the courts of appeals - particularly those hoping for an appointment to the Supreme Court - follow precedent closely, and thus are necessarily incrementalists. CoA judges who don't follow the pattern - Judges like Reinhardt and Berzon, for example - are seen as far outside the judicial mainstream, and thus would be difficult to confirm.
State Supreme court judges, academics, and politicians aren't subject to these limitations, and thus are more likely to have displayed real "empathy" in the prior professional lives. On this logic, Leah Ward Sears and Deval Patrick are Obama's most likely picks.
As someone who agrees with Judge Posner's assessment that the Court needs more political (and less legal) skill (see his 2005 HLR foreword), I think this is a good thing.
"I might see hsi position as insufficiently respectful of the First Amendment, ..."
That's a little like saying North Korea was insufficiently respectful of South Korea's sovereignty when it invaded. If 1A means anything, it protects a person's right to petition his government for a redress of grievances. Patrick's behavior as AG really should disqualify him from consideration. If a future Senate would not reject him, then we will need a new Declaration of Independence.
Your comment is a little like Hitler's invasion of Poland: it is more aggressive than the circumstances called for. ;-)
And the agenda plainly has changed as the Court has become more conservative, most notably on federalism issues but also on issues like securities law. Now, they don't have complete control, some cases are unavoidable. But on average, they are setting the agenda.
My guess is that if Stevens is the first to retire, then Farrakhan's almost certainly the pick. If it's Souter, then Zombie Hitler.
Cabranes turns 68 later this year.
Bernadette Dohrn, on the other hand....
I get that feeling as well. If he loses (and a future Democrat gets elected) or manages to get elected, re-elected, and have a democrat succeed him, a future in the court may be the perfect way for him to want to round out his years.
I was trying to head this argument off. Four uber-liberals may take a case knowing that they will lose simply to have the fight, get their uber-liberal dissent on record, and draw the public's attention to the issue. In other words, a dissenting bloc can issue a press release that jump starts the political process.
Don't forget that they will all be pinko godless communists, too.
But I think it's putty, not puddy.
Way too conservative for Obama.
This is for good reason despite the fact he's in an overwhelmingly liberal state---he's an awkward speaker/politician who hasn't exactly demonstrated he's an intellectual giant. I've heard enough of my Mass friends of varying ideologies complain about the guy that I think his nomination wouldn't be as palatable as you suggest especially in what has become a highly politicized process.
And to anon321, the dark horse question and your subsequent analogy/suggestion are puzzling. The three republican nominated judges you suggested all had varying stories and don't necessarily fit the dark horse/elevation to circuit and then scotus motif. I seriously doubt McConnell needed the circuit court spot if he was ever a serious candidate--now I understand the argument that because of his erratic adherence to the conservative standard in law review articles, speeches, etc (in the political sense, because that's all the judiciary is about now to the media) that a circuit court spot would assuage fears about him--but all of his older material was still there, he wouldn't have had much time on the court anyway and while the blogging academia (including some impressive bipartisan support) may have wet themselves at the suggestion of his name (because he was an 'intellectual'), I doubt his nomination would have been so welcomed when Schumer would be grilling him on some of his law review writings. I still have doubts as to how serious his candidacy would have been. Estrada was a true dark horse--a highly decorated guy who was stonewalled because of fears he was a young minority originalist and because of the fact he had no real track record before his nomination. Roberts on the other hand was a prolific SCOTUS litigator and was harder to shoot down because he also had bi-partisan support.
Katyal has been in the middle of a bunch of controversial cases still fresh in everybody's mind (Hamdan/Grutter), has a ton of literature to vet and has primarily specialized in an area which is understandably highly politicized today--he's also young and media-astute. It strikes me that Katyal might already have the record to be nominated but that he's more likely a candidate to replace one of the 'liberal' justices in a hypothetical first term in order to bypass a divisive confirmation fight. Its a pretty safe bet that republicans will have their own version of pfaw, neither side is above anti-intellectual gotcha political squabbling.
Who's Bernadette Dohrn?
Way too conservative for Obama.
I think you're buying into the caricature of Obama. If he were that guy, he'd have filibustered the FISA amendment.
It's hard to believe Obama would pick Patrick given the number of ethical problems Patrick has had in his short term as Governor.
In any event, the most likely retirement right away appears to be Ginsburg (for health reasons), in which case Obama would have no choice politically except to pick a woman. There is no way he could pick Patrick (or Archer) to replace Ginsburg. So you are down to Wood or Sotomayor if you are working from this list.
My guess is Sotomayor because she is younger, has longer combined service on two levels of the judiciary, and most importantly, because picking her kills two birds (minority and female) with one stone.
What I don't see discussed here is which nominee would effectively move the Court to the left.
Recent books on the Court (Rosen, Greenburg, Toobin) indicate that what matters is not the ideological purity of a Justice, but his or her ability to work with those who disagree. A "liberal icon" like Thurgood Marshall who writes lone dissents is less useful than a Justice who can get four or more other Justices to sign on to his or her opinions. Replacing Ginsburg with a more "liberal" Justice who is also charismatic enough to sway Kennedy a bit more often would be better than an ideologue who will push him rightward.
Is there any possibility that Roberts or Alito will "mature" on the Supreme Court?
It's that Patrick record and Hillary's dead-ender supporters that convince me McCain actually has a chance in Massachusetts.
Yeah.
I believe the forbidden word is "c@sino".
However, the thought of any of these mutts being plopped onto the USSC just chills me to the bone.
One word to Republicans in the US Senate... filibuster.
Let me see some balls and maybe I'll return to the party in the future. But if Republican Senators don't go down with a fight over President Obama's USSC nominations, I'll make plans to spend eternity in the wilderness.
By the way, only a law professor could think that it matters if Ginsburg is a "moderate" liberal, somehow different from "liberal" liberals. Her tone may be moderate but can you identify a significant social issue where she has ever voted the "conservative" way?
Now, if President Obama were to appoint Patrick to the Court of Appeals for a few years - like Roberts - he would have a much better chance. But it seems to me that judicial experience has been a sine quo non for Supreme Court nominees for quite a while now and Orin and others underestimate the problems that having no judicial experience would bring to the confirmation process.
No discussion about Sunstein? What are your thoughts on that possibility?
"My expectation is that any Obama nominees would be significantly more liberal than the Justices they are likely to replace."
Sunstein can't possibly fall into that category!
Depends what you consider "judicial experience." If you don't count clerking (and I'm guessing you don't, since Patrick clerked for Reinhardt), then Rehnquist. And as for Justices who served between the end of Warren's tenure and Rehnquist's tenure, add White, Powell, Douglas, and Black (and maybe I'm missing some). So there's a long--if not a recent, i.e., last 20 years or so--history of Justices who haven't had prior experience as a judge.
I think Orin's distinction is compelling. If you're driving a car and I say we're going left ahead, there's a difference in making a left turn and veering left at a fork.
Perhaps, the Republican senators will influence Obama but only if you trust jerks like Spector.
Pick a list of the ten most outrageous, flaming neocommunist
extremists, many without judicial experience (we want "change," remember?) and you'd be closer. In the political spectrum, cluster around Noam Chomsky.
Obama was an organizer/political machine hack. Look in those ranks for judicial appointees. Think blacks with Ivy League or left wing school (U of Wisc. at Madison, Berkeley) law degrees.
A guy who chose to be a community organizer rather than a BIGLAW associate, and a guy who chose to teach one class a year and work at a civil-rights firm rather than be a full-time law professor? I don't think so.
Does that mean Patrick would nap while his clerks wrote his opinions?
If this is serious, we are in worse trouble than I thought we were. Patrick is an incompetent ninny, not a future light of the law.
We need a hot Supreme far more than we need a 1st amendment-trashing bozo.
Well, it didn't work for me! Hence the circumlocution. I also changed another word that begins with "c" and is a place the above happens, to "vegas" interests.
Another question about Patrick is this: given his acquisitiveness and almost-comical taste for luxuries, would he give up electoral politics, where men with his ethical bent become millionaires many times over, for the bench, where men with his ethical bent either bend back or wind up in Club Fed? (OK, Alcee Hastings wound up in Congress, but he's a one-off exception, isn't he? There aren't enough bribe-taking judges to make a statistically valid analysis. Not that get caught, anyway -- maybe that'd be Deval's plan, not to get caught).
Not only will that be and issue, but his love pardons will nail him. There is not a murderer/rapist he doesnt love. Or his dealings with prisoners at SuperMax.
http://www.hoover.org/publications/policyreview/3574622.html
Once the whole thing with the 101 Dalmations came to light, I think Deville's chances of being nominated dropped to zero.
More broadly, it's interesting how many of the comments take the form of "I don't like candidate X's views on issue Y, so s/he could not be confirmed." The Senate confirms judges, not blog commenters.
That leaves: Diane Wood, Elena Kagan, Teresa Wynn Roseborough, Leah Ward Sears, and Sonia Sotomayor. This may be boring, but I think the convential wisdom is right. Sotomayor is as close to a sure-bet as these things can go. Still, here are what I see as the pros/cons of each.
Roseborough does not *yet* have the experience. While very smart and very connected, she'll likely be nominated to the 11th Circuit in Atlanta or the DC Circuit before being nominated to SCOTUS.
Chief Justice Sears is a compelling choice. She's brilliant and, because she has twice been elected in Georgia with over two-thirds of the vote, it's hard to claim she's too liberal. She's photogenic and, because of her campaigns, she's been thoroughly vetted and is ready for primetime. I personally doubt, however, that Pres. Obama would pick an black person as his first pick. Mainstream black politicians walk a racial tight rope when it comes to alienating white voters, and such a nomination would be bold for that reason.
I think Kagan is pretty confirmable, because she's been so even-handed ideologically as dean. Her youth is also a plus. I'm not sure what kept the Senate from acting on her nomination to the D.C. Circuit. in 1999. I think she's in the top 3.
Wood and Sotomayor are the front-runners. Both are excellent jurists. Wood's big pluses: she's brilliant; she's teaches at the same school Obama did; she's widely respected on the left and the right. Her biggest knock: she's already 58, and maybe 60 by the time the next vacancy rolls around.
Sotomayor's big pluses: she has great academic cred (summa cum laude! from Princeton before heading to YLS); she has tremendous experience both as a district court judge and appellate judge; and she would be a historic pick, as the first Hispanic person ever on the bench. Also, she's very very confirmable by virtue of: being a former prosector; originally being nominated by Bush 41; and having a made-for-TV life story. Her knocks? I can think of none. That's why I suspect she's the likely choice.
Another conservative with his finger on the populist pulse.
The New York Times has floated his name, but David Bernstein here at VC seems to think he's too partisan.
What's the matter...is kos down momentarily?
First, the 'nuclear option' was actually never used (remember that gang of 14 that McCain was actually a part of?) and secondly if you truly think that Alito and Roberts are 'movement conservatives' who are the equivalent of Brennan and Warren then you better hope you have a money back warranty for that poor education you got at law school.
I'd ask you to cite any evidence that Alito and Roberts are similiar to the two liberal lions you named (I'm talking opinions here)but I seriously doubt you have the intellectual clout to provide anything.
Pragmatically, if Obama does win it still seems likely that he'll probably not have enough votes to avoid judicial filibusters (which I'm guessing are now fair game for everyone). If he foolishly does take the advice of naive partisans like you--then he might get a judge or two confirmed but there would be a couple hitches:
First, any narrative that he's a uniter and the president of all people would be flushed down the drain (though i understand his opponents will already challenge that picture) because of the fact he has used an unprecedented procedural tool for ideological reasons (This doesn't even begin to take into account the fact that a elongated fight over this would probably be messy for both sides and that the damage done w/regards to working with political opponents might be irreparable). Second, you discount the fact that the majority democrats have built in the senate is on the backs of moderate/conservative democrats being elected in traditionally red states. The idea that senators like Tester and Webb could go back to their constituents after aiding such a feat is laughable--more than likely you'll just see another brokered compromise.
Either way, Bush's playbook ended up revolving around who he could nominate who would actually get through--the bi partisan support roberts had was pretty significant..and we all know who alito succeeded in terms of scotus nominees. I'm sure that Obama will keep in mind confirmability during any potential hypothetical nominations. And while I'm sure you probably actually didn't even read the thread--many commentators actually suggest that Obama will nominate a liberal and don't expect him not to--the type of liberal and the slate of realistic candidates possible is what's being discussed.
@Orin
What's the likelyhood that Obama nominates a colleague (senator) in a multiple vacancy scenario--confirmability would be all but assured, he'd have a reliable liberal (depending on who he nominated), and there are some interesting choices in my view. HRC is an obvious one and if Obama wanted to play the demographics game he has two potential hispanic candidates as well in Menendez and Salazar (who has the added benefit of a great story and experience as a state AG). I don't know much about Salazar's judicial views, but his somewhat moderate reputation may make him the perfect/confirmable replacement for Justice Kennedy or one of the conservatives.
Agreed, though, that there's no way Obama's intentionally nominating a Brennan or Marshall to the Court, for the reasons VG listed: the difficulty confirming someone in that mold would pose, in terms of both Senate composition and narrative--how do you sell yourself as a bipartisan messiah if your Court nominees are hard-left liberals? If it ever happens, it'll be in his (hypothetical) second term, when he doesn't have to worry about re-election.
Rest assured I’ll have an eagle eye out for the intellectual sin of misspelling/incorrect punctuation in a blog post next time out.
My point was only that if you're going to try to insult someone's intelligence, it's pretty amusing for you to then display your own intellectual failings in the same post. You'll note that I didn't criticize your punctuation (as you suggest) because I understand that comments are written off-the-cuff. Blatant misspellings are, however, less excusable given the context.
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