A Prediction about the Next Move on the Court:
At the end of the OT08 Term, in late June 2009, Justice David Souter informs President Barack Obama that he is resigning from the Supreme Court. A month later, President Obama nominates Elena Kagan, currently the Dean of Harvard Law School, to replace him.
Bobo Linq:
What about Stevens?
11.5.2008 1:13am
Reg (mail):
Ginsberg goes at the same time, and Obama nominates Deval Patrick.

Stevens sticks around until 2011.
11.5.2008 1:16am
Perseus (mail):
Why do you think Justice Souter will resign so soon?
11.5.2008 1:19am
Cornellian (mail):
While it might be going too far to say that Kagan would get bipartisan support, I don't think she'd freak out the Republicans the way someone like Larry Tribe would.
11.5.2008 1:19am
Reg (mail):
Souter hates D.C. and wants to spend his days in his NH cabin chopping wood and reading Thoreau.
11.5.2008 1:21am
therut (mail):
Tribe might support the 2nd amendment or be a liar. How would the Kagan woman be on the 2nd amendment? I am afraid to ask.
11.5.2008 1:22am
Reg (mail):
Heller had the 4 libs dissenting, and Obama won't nominate anybody to the right of the 4 libs on the Court. Of course, precedent authored by Scalia, Thomas, Rhenquist, etc. isn't entitled to any weight either.
11.5.2008 1:26am
Prosecutorial Indiscretion:
That nomination would kick ass. I'd rather see another Roberts or Alito, of course, but that's what winning elections is all about. You lose, you take your lumps. As we're going to be stuck with a lefty, I don't think we could do better than Elena Kagan - she's brilliant, practical, and reasonable. I hope President-elect Obama demonstrates the good sense you attribute to him and does nominate Dean Kagan when the opportunity presents itself.
11.5.2008 1:28am
Souter's "identity" spot needs to be filled with someone of Kagan's background. I can't think of another LGBT figure with comparable clout.
11.5.2008 1:42am
Don Hamrick (mail):

Philip J. Berg, Petitioner v. Barack Obama, et al U.S. Supreme Court, No. 08-4340, filed October 30, 2008. Contesting Obama's eligibility to run for president


Oct 30 2008 Petition for a writ of certiorari before judgment filed. (Response due December 1, 2008)

News from

TITLE: Will Supreme Court have say in presidency?
SUBTITLE: Schedule includes campaign response to questions on Obama birthplace

". . . Souter set a schedule for a response from Obama to the challenge from attorney Philip J. Berg."

"In a statement today, Berg said he was told by a clerk for Souter that his application for an injunction to stay the election was denied. But he also said the defendants "are required to respond to the Writ of Certiorari" by Dec. 1."

"The biggest question is why Obama, if there exists a Hawaii birth certificate, simply hasn't ordered it made available to settle the rumors."

"The governor's office in Hawaii said it was valid, but rejected requests for access, and left ambiguous whether the Obama birth certificate on file with the Department of Health was originally generated by a Hawaii doctor after Obama was born in Hawaii, or generated in Kenya and subsequently registered by the Obama family in Hawaii."

WorldNetDaily Exclusive

TITLE: Doubts persist about Obama birth certificate
Considerable evidence still points to candidate's birth in Kenya
November 02, 2008

"To date, Obama and his campaign have refused to disclose the name of the doctor delivering the candidate or the precise hospital where he was born."

"The main reason doubts persist regarding Obama's birth certificate is this question: If an original Hawaii-doctor-generated and Hawaii-hospital-released Obama birth certificate exists, why wouldn't the senator and his campaign simply order the document released and end the controversy?"

"That Obama has not ordered Hawaii officials to release the document leaves doubts as to whether an authentic Hawaii birth certificate exists for Obama."

"Rather, the failure to release the document fuels the theory -- true or not -- that the Obama family, shortly after Obama's birth overseas, returned to Hawaii and registered at the Hawaii Department of Health the original Obama birth certificate that had been issued by the doctor and hospital that delivered Obama in Kenya."


If Obama was born in Kenya then Obama would have to resign. Otherwise Congress would be forced to impeach Obama.

And if Obama win the presidency on a fraud will Biden then become president or will have have to resign as well.

If Obama and Biden are forced out of office by resignation or impeachment will that mean the Nancy Pelosi, Speaker of the House will rise to the Office of the President and Robert Byrd, President pro tempore of the Senate will rise to the Office of the Vice President? Or will McCain/Palin take the respective offices by default? Or will there be a new election?
11.5.2008 1:48am
Prosecutorial Indiscretion:
11.5.2008 1:51am
Don Hamrick (mail):
No, what?
11.5.2008 1:55am
Elena Kagan? Not Cass Sunstein? That would surprise me. Also, didn't Ginsburg have cancer? I always thought she would be the first to resign if a Democrat were elected.
11.5.2008 1:57am
J. Aldridge:
Dob, I think Berg has no understanding of the laws he quotes. See here.
11.5.2008 2:06am
J. Aldridge:
^^ err Don!
11.5.2008 2:06am
Please--NO PROFESSORS for SCOTUS. Please don't do that to us. (No offense, Conspirators. But you are in academia. You must know what I'm talking about.)
11.5.2008 2:09am
Bruce_M (mail) (www):
I figure Ginsburg would retire, too, after Obama takes office.
11.5.2008 2:14am
Cornellian (mail):
My ranking for nominees, from best to worst, other things being equal, is

1) Circuit level judge
2) Appellate practitioner
3) Academic
4) Politician
11.5.2008 2:18am
Cornellian (mail):
I suspect Mr. Berg is going to have a problem with standing, and I don't mean getting up out of his chair.
11.5.2008 2:33am
theobromophile (www):
My predictions: Ginsburg retires, is replaced by a man. Justice Ginsburg realises that she went from being one of two women, to the only woman, to vacating her seat for a man.

This is not just me being a bitter feminist Palin supporter; I truly believe that Obama, who sees the value in a racially diverse country, inexplicably fails to see the same values in feminism. Had he shown some inclination to push women into high office - and make history many times over - I would believe that he would put Dean Kagen on the Supreme Court.
11.5.2008 2:34am
Ilya Somin:
Orin may have inside information that I lack. But I think that 88 year old Justice Stevens is likely to retire earlier than Souter.
11.5.2008 2:37am
DaveH (mail) (www):
re: the Berg lawsuit

Berg is a Troofer (9/11 inside job, etc...) and generally barking mad.


My guess is a paternity issue as has been bandied about on some other sites.
11.5.2008 2:43am
Reg (mail):
Everytime I hear something about Stevens, its that his health is great and he likes his job. I've also heard speculation he wants to be the oldest Justice, which I think he would break in 2011. To beat Douglas for time served, I think he'd need to go until 2014, but I haven't checked dates.

Is he slowing down yet?
11.5.2008 2:53am
LM (mail):
More World Net Daily! This site needs more entertainment after all the divisive campaign stuff. In fact, does The Weekly World News have an online edition? (I'll check the Google tubes.)
11.5.2008 2:54am
Tribe would be a superior choice. He is exactly what is needed.
11.5.2008 3:00am
LM (mail):

To beat Douglas for time served, I think he'd need to go until 2014, but I haven't checked dates.

I'd hope the way Douglas finished would be a cautionary tale for any Justice looking to break records. (Didn't he also hold the SCOTUS records for wives and impeachment attempts?)
11.5.2008 3:02am
Reg (mail):
Stevens could serve another ten years.

Maybe a senile SC judge refusing to retire would lead the country to amend the constitution to put an age limit on the term. Say, 80 years old or 30 years on the court, whichever comes first. There's no reason for more time than that.
11.5.2008 3:06am
Vermando (mail) (www):
"This is not just me being a bitter feminist Palin supporter..."

I'm gonna say it is.

President-elect Obama leaving the Court with zero women members? Seriously? Even if you assume - which I don't - that he does not place the same value on gender diversity as he does on racial, wouldn't he have someone around who would tell him that that would be a bad idea? Wouldn't he realize it and correct it out of his own self-interest in earning a second term?

This guy took down Senator Clinton and then Senator McCain and we're supposed to believe that he is that politically tone-deaf? Give me a break.
11.5.2008 3:27am
theobromophile (www):
This guy took down Senator Clinton and then Senator McCain and we're supposed to believe that he is that politically tone-deaf? Give me a break.

To put it another way: Took down Alice Palmer, then Hillary Clinton, then the Palin ticket.

Politically tone-deaf has nothing to do with it. Progressive feminists were jumping all over themselves to say that they don't vote with an alliterative body part. Senator Obama is savvy enough to know that he can appeal to the progressive wing through other measures: support for gay marriage, support for abortion (i.e. his statement to NARAL regarding the Freedom of Choice Act), etc.

My surprise stems from the fact that it would have been tremendously easy for Senator Obama to appeased the PUMA voters. He never retired Hillary's campaign debt (at least not when I checked about a month ago), although he raised enough money to have paid that with roughly one-fifth of one percent of his raised funds. He declined the opportunity (citation when I'm not a bottle of champagne into the evening) to tell PUMA voters that he would do what Bill Clinton did back in the '90s with the Cabinet: achieve gender parity. He could have put another woman on as his VP - citing, say, disagreements with HRC during the primaries as a reason why they wouldn't be good running mates - but put Joe Biden on.

Does any of that mean that I think that Obama lacks a political ear? No - I think he has a better political ear than almost anyone. We all remember the 1990s, when the feminists rallied behind Bill Clinton despite the intern issues (and screwing around with a subordinate should be at least a problem, not something to dismiss), because Clinton's policies were in line with the mainstream feminism ideals. We see the same with Obama; I do think that the fact that he beat out Hillary (albeit not in the popular vote) and Sarah (albeit as a VP) should give women pause, but, apparently, progressivism is more important than having women in the highest offices.

Some of my thoughts on this are influenced by where I think the feminist movement (or the non-conservative part of it) has gone, but I absolutely believe that the court could be 9-0 male-female under Obama. If the replacement had the right progressive credentials, we would be told that it's all the same and to not vote (or judge) with our alliterative body parts.
11.5.2008 3:56am
A Law Dawg:
President-elect Obama leaving the Court with zero women members? Seriously? Even if you assume - which I don't - that he does not place the same value on gender diversity as he does on racial, wouldn't he have someone around who would tell him that that would be a bad idea? Wouldn't he realize it and correct it out of his own self-interest in earning a second term?

Or he could nominate Leah Ward Sears from the Georgia Supreme Court, who is black and female, and call it a day.
11.5.2008 4:26am
My only requested for a nomination is that it not be a person who graduated from an elite law school.
11.5.2008 8:51am
After appointing a ideologically diverse cabinet, BO will think he has the cover to appoint Hillary as the next justice. It will be the first of several decisions and forces majeure that will lead to a Republican congress in two years.
11.5.2008 8:55am
Eric Muller (www):
Three Jews on the Court simultaneously?

A Court with 5 Catholics and 3 Jews?

Would this really be possible? (And I ask this as a member of the tribe.)
11.5.2008 9:06am
Obama could neatly sidestep a 2012 re-election problem by appointing Hillary Clinton to the Court.
11.5.2008 9:31am
Souter and/then RBG, then JPS before 2012. Just a guess...
11.5.2008 10:38am

It is against the law for Obama to use his campaign money to pay down the debt of another campaign.

Your reasoning seems very much like a conclusion looking for a rationalization.
11.5.2008 10:51am
Um, really? (mail):
Why would President Obama appoint someone (Kagan) who would be to the right of Steve Breyer (the most conservative of the four moderate-to-liberals on the Court), who by the way has never argued a case in court? Why not Leah Sears or Teresa Roseborough?
11.5.2008 11:01am
BRS (mail):
I don't expect to see Stevens retiring for political reasons. I may not like some of his decisions, but he is about judicial philosophy, not politics, and probably realizes that a brain like his couldn't be replaced. I place a Stevens retirement at just slightly more likely than a Scalia retirement during a Republican administration.
11.5.2008 11:14am
JPS will retire under a democratic presidency - not because of politics (he is, or was, afterall a republican). But he understands that no modern-day republican will replace him with anyone who has the judicial likemindedness he has. He is in great shape though and will outlast at least one or two of his left-leaning associates on the bench.
11.5.2008 11:24am
Conrad Bibby (mail):
Justices traditionally retired during the the term of a president of the same party as the president who appointed them. It was a way of making the court seem less partisan. Not that I really expected Stevens to follow suit, but Souter too? For a GOP appointee like Souter to wait for a liberal Democrat prez to retire seems crassly political.
11.5.2008 11:25am
The party which appointed Stevens doesn't really exist any more.
11.5.2008 11:44am
I recently attended oral argument at the SCOTUS and then had the chance to meet with Souter personally. Two observations:

* Stevens seems very lucid and sharp for a guy older than dirt.
* Souter hinted that he might not be around on the Court much longer.
11.5.2008 12:08pm
My prediction: Souter retires (Stevens wants to be the longest serving member of the court in history) and Obama appoints 7th Circuit judge Diane Wood.
11.5.2008 12:17pm
I though Sotomayor was in the pole position. . .
11.5.2008 12:22pm
RealToral (mail):

1. President Obama's first appointment will be a Hispanic. Both parties have wanted to appoint the first appointment for quite a while. Bush could not find anyone who was conservative enough and without serious flaws that would come out in the confirmation process.

2. President Obama will not nominate Deval Patrick or any other African-American to the court unless Justice Thomas leaves. he will avoid at all costs aaathe appearance that he is "packing" the federal government (and SCOTUS) with African-Americans.
11.5.2008 12:48pm
G-Dub (mail):
Ooh! Ooh! Harriet Miers! She is a woman and she didn't go to an elite law school! Ooh! Ooh! Pick her!
11.5.2008 3:21pm
Roy Englert:
July 14, 2012, is the date on which John Paul Stevens would tie the record of William O. Douglas for longest service on the Court. Whether Justice Stevens has any desire to stay that long, and whether he cares about the record, are things I do not know. I do know he has plenty of vigor, intellectual and otherwise, right now at age 88.

Ruth Bader Ginsburg is in fine health and is fully recovered from her cancer. I do not expect her to retire any time soon.

I lack first-hand knowledge of the level of David Souter's happiness or unhappiness, but I do place some stock in the views of those who say he would like to retire soon and return to New Hampshire. I think Orin has a strong basis for predicting that Justice Souter's seat will be the first one President Obama will get to fill.

I think Elena Kagan has to be on the short list for any number of plum appointments by President Obama. She could be the Solicitor General, for example. In addition to having served in the Clinton Administration, she is the Dean of the law school Obama attended, and she previously taught at the law school where Obama taught.

Don't trust, however, the views of anyone who went to Princeton and Harvard Law School who predicts a plum appointment for someone else who went to Princeton and Harvard Law School -- unless the person doing the predicting was once named Michelle Robinson.
11.5.2008 7:07pm