Why I'm Guessing Obama Will Nominate Elena Kagan:
I've been writing for a while that I would guess Barack Obama will nominate Elena Kagan to the Supreme Court to replace Justice Souter, especially over leading short-listers like Sonia Sotomayor. I thought I would blog a bit more about why I'm guessing that.

  As I see it, it seems likely to me that Obama will want to nominate someone who could be a charismatic leader for the liberals on the Court. That's true for three reasons. First, Obama is a very popular new President who will have 60 votes in the Senate, so there isn't the usual political reason to pick someone more modest or centrist. Second, Obama is a former law professor and former President of the Harvard Law Review: In those circles, the more lawyerly liberals (the bean-counting, move-left-small-step-by-small-step kind) are at best compromises. Third, based on his first 100 days in office, Obama seems to like bold action if he can take it.

  Given these three factors, I suspect Obama would want to nominate someone who will change the ground game at the Court. The idea would be to broaden the range of viewpoints on the Court and shake things up a bit. I think this environment tends to favor someone who is known as extremely smart, charming, and without the baggage of a lot of judicial experience coloring between the lines as a lower court judge. I think Kagan best fits the bill for this. I should add that I don't actually know what positions Kagan would take; her relevant public record is sparse. I just expect that she has the smarts, energy, charisma and perhaps inclination to shake things up a bit.

  Those who expect Obama to pick Sonia Sotomayor focus a lot on the fact that she is Hispanic. That is true. At the same time, I would think the current political climate doesn't make that as relevant as it could be. Obama enjoys an incredible 85% approval rating among Latinos, and Obama is only 100 days into his first term. Obama doesn't need to pick a Latino replacement for Souter to keep people on board: it's not like mass numbers will defect to vote for Sarah Palin in 2012 if Obama nominates someone else. Plus, by the time Obama is running in 2012, his 2009 pick will have had 2-3 years to prove herself as a solid liberal vote. So under the circumstances, I see the race question as less important to Obama than it could be.

  Finally, some commentators suggest that it would make no sense for Kagan to be nominated so soon after being confirmed as SG. I disagree: I think the timing is perfect. Kagan just went through the confirmation process a few months ago, and everybody knew it was a trial run for a possible nomination for the Supreme Court down the road. No major hurdles or issues emerged, and Kagan was easily confirmed. With the dress rehearsal having gone smoothly, it makes it easy for Obama to nominate Kagan again, this time to replace Souter.

  That's my thinking, anyway. Obviously, this is all sheer speculation based on no insider information at all. But that's my best guess.

  UPDATE: I have altered the post a bit to make it clearer. To elaborate a bit, I don't actually know the specific positions Kagan would take; her record is sparse. What I was trying to identify was more of an energy and direction than a particular set of positions. I also, I took out the phrase about whether there has been a Hispanic Justice before, as it immediately drew about 10 commenters who wanted to discuss Justice Cardozo; obviously that's not the point of the post.
Terrivus:
Two questions/observations:

1. Why do you think Elena Kagan would make a "liberal lion"-type Justice? Yes, she's young, smart, and motivated; and yes, she clerked for Marshall. But her background is one of a moderate-liberal. She was in the Clinton White House. She's an admin law scholar, who are generally on the more incremental side of liberalism and more concerned with minutiae than sweeping reform (think Breyer, Sunstein, etc.) She accommodated/welcomed conservatives and conservative views at HLS. Even on the hot-button of gays in the military, while Kagan gets roasted by the far-right for attacking the Solomon Amendment, Kagan actually took a lot of heat from the HLS gay community for acceding to it once it was upheld (instead of forgoing funding).

I guess I'm just wondering what affirmative proof you have that she would "take positions more aggressive than the current set of liberal justices"?

2. Kagan got some pushback during her SG confirmation process for having no experience as an oral advocate. You don't think this will come up again -- not just that she has no judicial experience, but that this is now happening for the second time in a few months? (Not that I think this would disrupt the confirmation process, but I question whether it won't be any issue at all.)
5.1.2009 3:45pm
SeattleSolicitor:
I would add: Elena Kagan's term as Dean at Harvard Law was characterized by competence, civility, a tackling of tough changes such as first-year curriculum, and a willingness to work across the ideological spectrum (including an increased hiring of more conservative-leaning professors). I think that Obama sees in Kagan the leadership traits that he hopes others will see in him. Importantly, Obama believes that a moderate tone is the right one to strike when moving in a strongly liberal direction. Kagan may be able to finesse egos at the Court in the same way she was able to finesse those of the HLS professoriat--and to do so in a similar way to how Obama would try to do himself. If the question is one of pure effectiveness, Obama is likely to pick Kagan because she will remind him most of himself, and he likes to think of himself as effective.
5.1.2009 3:48pm
Ice Cube:
So Katyal will replace Kagan as SG?
5.1.2009 3:49pm
OrinKerr:
Terrivus asks:
I guess I'm just wondering what affirmative proof you have that she would "take positions more aggressive than the current set of liberal justices"?


From the post:
I should add that I don't actually know what positions Kagan would take; I just expect that she has the smarts, energy, and charisma to shake things up a bit.
5.1.2009 3:50pm
Cornellian (mail):
I would add: Elena Kagan's term as Dean at Harvard Law was characterized by competence, civility, a tackling of tough changes such as first-year curriculum, and a willingness to work across the ideological spectrum (including an increased hiring of more conservative-leaning professors).

This.

Diplomacy is a highly undervalued skill in an appellate judge. That seems to be a strong suit with her, which to me is a significant plus in support of her nomination.
5.1.2009 3:57pm
Terrivus:
From the post:


I should add that I don't actually know what positions Kagan would take; I just expect that she has the smarts, energy, and charisma to shake things up a bit.


Oh. But, um, wasn't that the whole point of the post? That Obama would seek "bold action", take an "aggressive stance," "swing for the fences," and nominate a "'liberal lion,'" someone who will "change the ground game"?

I realize one can't predict what positions she would actually take. But without any past examples, you could substitute anyone who is young, energetic, and well-known in the academy, and the post would be the exact same. I mean, Harold Koh fits your description far more than Elena Kagan.

[OK Comments: Terrivus, I have changed the post to clariy in response to your concerns. Please read the new version of the post.]
5.1.2009 3:58pm
Gerard Magliocca (mail):
Orin,

I agree in part with the comment above -- what evidence is there that she might be a liberal lion? (I agree she'd be good at the job, but that isn't the question.) Besides, she has a pretty conventional background as far as I know. Judge Sotomayor, by contrast, seems to fit a lot better with Obama's desire to have someone who empathizes with regular folks, given that she overcame a lot of obstacles to get to where she is. (Full disclosure -- I know the Judge very well and hope she gets picked.)

Given that Stevens is very likely to retire in a year or two, I would think Obama would pick Kagan then after she's actually done something as SG. I very much doubt that she'll have any confirmation problems then either.

Gerard
5.1.2009 4:03pm
OrinKerr:
Gerard,

My apologies -- I took out the "liberal lion" phrase, as I think it is embedded with so many associations that I can't support it with evidence.
5.1.2009 4:04pm
Richard Riley (mail):
I think one of the points noted by SeattleSolicitor above - "willingness to work across the ideological spectrum (including an increased hiring of more conservative-leaning professors [while dean at Harvard])" - is very true and a crucial factor in favor of Kagan. It might mean that she has (or Obama might at least think she has) the ability to become what Justice Brennan was reputed to be - a coalition builder in support of the direction in which she wants to move the Court. It also bodes well for her ability to schmooze her way past whatever opposition to her nomination she might encounter in the Senate.

I also agree that Kagan, as a former Clintonite, is a moderate liberal and no lefty activist. Not sure why Orin Kerr thinks she may be the latter.
5.1.2009 4:08pm
AF:
Professor Kerr,

I'm curious, in your view is there evidence that Kagan is less "smart, thoughtful, and principled" than Merrick Garland and Diane Wood? Is there evidence that she is less moderate? Would you be less "delighted" if she were nominated?
5.1.2009 4:10pm
Hovsep Joseph (mail):
And SCOTUSBLOG noted that she's ten years younger than Diane Wood, which in a close decision would give her an edge.
5.1.2009 4:15pm
Terrivus:
Yes, that's fine :) Sorry, I wasn't trying to poke holes in the post. Rather, I was actually looking for examples where Kagan has demonstrated her liberal bona fides. Part of me wonders if the liberal base thinks she is liberal enough, or whether she's too accommodating and NOT bold enough, at least based on her record.
5.1.2009 4:25pm
jgshapiro (mail):

I think the timing is perfect. Kagan just went through the confirmation process a few months ago, and everybody knew it was a trial run for a possible nomination for the Supreme Court down the road. No major hurdles or issues emerged, and Kagan was easily confirmed. With the dress rehearsal having gone smoothly, it makes it easy for Obama to nominate Kagan again, this time to replace Souter.

I would think that the fact that Kagan has gotten through recently would argue against picking her — she is now likely a safe pick for a future seat, and she will be even safer then because she will have more experience strategizing and arguing before the court. Obama doesn't need a safe pick now.

The sensible thing for him to do is to pick someone considered a reach, but not crazy, on the theory that he can save someone like Kagan for later when he might not have 60 votes and/or when another nomination falters. In the meantime, he gets to use her as the 'tenth' justice.
5.1.2009 4:27pm
ruuffles (mail) (www):

The sensible thing for him to do is to pick someone considered a reach, but not crazy, on the theory that he can save someone like Kagan for later when he might not have 60 votes and/or when another nomination falters.

Compare to Reagan. When Rs controlled the Senate, Reagan picked Scalia, got unaminous approval. When it flipped to Ds, Reagan picked Bork and the rest is history. Its been theorized that Reagan should have picked them the other way around. The combative Bork would have been easier to push through with a R Senate and the unaminous Scalia vote would have still gotten through on a wide margin even with a D senate.
5.1.2009 4:42pm
wooga:
Sotomayor is much more open on the "empathy" front. Obama wants someone who heavily factors the claimant's race, gender, status, etc., and Sotomayor says she'll do that.

Obama is going to get another spot on the court. He does not need to go for some grand leader with this nomination. Plus, Sotomayor actually has the judicial experience to ensure that all opposition to her will be limited to ideological differences. Ideology alone will not be enough to derail any Obama nominee, so she'll sail through like Ginsburg.
5.1.2009 4:52pm
Michael Alexander:
I think Obama will pick somebody to address his reelection in 2012. A supreme court nominee is not part of a presidents "agenda" (at least not in the same way legislation or budgets or foreign policy is part of an ongoing agenda), but it will allow him to show support for a particular group or cause. But, it allows a president to appeal to any number of groups that are otherwise dissatisfied with the agenda by giving them a presidential act he can point to later.

For Obama, I think that if he wants to shore up a particular constituency, he will pick a hispanic, a female, or somebody from one of the groups he is aiming at. If he wants to build his centrist and coalition building credentials, he will pick somebody of that vein. Or, he might decide he needs to establish himself as an intellectual, and pick a particularly smart and well qualified person - kind of like the John Roberts selection did for Bush (like him or not, Roberts had a sterling resume).

I think it would be shrewd for Obama to pick a centrist nominee. Then, he could continue to promote a liberal agenda, but later point to a cenrist nominee to show he has been a centrist all along.
5.1.2009 4:56pm
EverydayLiberal (mail):
Quite importantly, she's a woman, who tend to care less about the economic issues and more about nurture and social issues, which inclines them more strongly to liberal positions than men. So, God forbid, there is little chance she will infer a conservative nuance on the issues that she will rule upon, and his appointment would not be prone to the same sort of "flipping" that the unluckier Republican presidents have enjoyed. And, it's also a feel-good chance to score diversity points and give a shout out to his Harvard alma mater, which Obama can't help but like. We may finally receive the new theory on the penumbra of constitutional fundamental rights we'll all been waiting for - perhaps she can finally craft the right to universal health care and the right of religious non-offense.
5.1.2009 5:03pm
Anderson (mail):
Quite importantly, she's a woman, who tend to care less about the economic issues and more about nurture and social issues.

Wow. That tells me a lot about EverydayLiberal, but not much about Elena Kagan.

Left out "frilly dresses" and "pretty hair bows" from her list of concerns, btw.
5.1.2009 5:07pm
ruuffles (mail) (www):

his appointment would not be prone to the same sort of "flipping" that the unluckier Republican presidents have enjoyed.

True, R nominees tend to be more unlucky but that's because there's been more of them. Before Clinton, LBJ was the last to nominate. Before him, Kennedy nominated Byron White, a moderate to conservative, who outlasted either of LBJ's appointments.
5.1.2009 5:10pm
Alaska:
One matter I have not seen raised about Kagan's nomination is potential conflicts of interest. How many cases would require her to recuse herself because of her participation as an attorney in the SG's office? How long would that effect last, meaning, would she have to recuse herself for a couple of years, or would it only be a handful of cases?

Granted, it would be a comparatively short time with relatively few cases since she would, barring something unforeseen, remain on the court for a long time. Given that, is it something that would even be considered?

I'm more thinking out lout here than anything else, but when I heard her name mentioned this morning on NPR, it was what I first wondered. I would appreciate any sort of info someone might have regarding USSC's rules re: conflicts, recusals, etc., whether those rules are different, and also what work she's done at the SG's office that would have an impact on her work at the court.

From what I've seen, I think she would make a good Justice.
5.1.2009 5:25pm
Benjamin Davis (mail):
I hope it is not Kagan as her comments that Jack Goldsmith assures that international law is on a good footing at Harvard are really pathetic.
Best,
Ben
5.1.2009 5:26pm
shertaugh:
Orin:

Is there anyone out there in the running who favors a more generous view of the Fourth Amendment? The good-faith exception is becoming the rule . . . particularly in cases involving federal agents who've run the warrant past an AUSA (as they I think they must under the US Atty Manual).
5.1.2009 5:37pm
cvrts pdx (mail):
Johnnie B. Rawlinson would be a winning pick. Scholarship student, non-Ivy League, Clinton apptee to 9th Cir bench, working mom, African American with southern roots, has fed ct
trial exp and exp with legal svcs, workers comp, employment law, and hospital law, all bread and butter issues for the real people of this country, who need a voice on the court.
5.1.2009 6:12pm
John P. Lawyer (mail):
I don't find Obama's first 100 days marked by bold aggressive actions. Rather, I think he has acted rather pragmatically. That said, even if you think Obama has acted boldly, it doesn't seem particularly bold to nominate a mainstream liberal who was well thought of at Harvard Law by liberal and conservative scholars alike. She's the current SG, former dean of Harvard Law School and an academic - credentials that are "typical" for judicial nominees - especially to the D.C. Cir or SCOTUS. But to know whether she's the next Justice Brennan -- that's impossible
5.1.2009 6:13pm
CheckEnclosed (mail):
Is non-discrimination, like paying taxes, "for the little people"?

Just wondering, because when things like Supreme Court vacancies pop up, folks talk about appointing someone who is Black, or Hispanic, or female, sometimes based on anecdotal or stereotypical beliefs about such individuals, without mentioning the fact that it is rather illegal for the rest of us to base hiring decisions on such criteria.

Whether he is legally required to do so or not, why shouldn't we expect President Obama (or any othe President)to lead by example in such matters?

In the same vein, why should we not hold those who suggest selection of Justices on such grounds up to obloquy?
5.1.2009 6:14pm
Dennis Nicholls (mail):

Kagan got some pushback during her SG confirmation process for having no experience as an oral advocate. You don't think this will come up again


The job of the SG entails oral advocacy. But this issue would be irrelevant to a Supreme Court justice.
5.1.2009 6:15pm
Grey:
Can you elaborate on vague phraseology like "shake things up" and "energy and direction"? I don't have the first idea what it means. I have plenty of guesses, but I'd like concrete examples.
5.1.2009 6:19pm
Steve P. (mail):
Grey - I believe these are Prof Kerr's impressions, not a legal brief. Just go with your gut instinct.
5.1.2009 6:38pm
OrinKerr:
shertaugh:

My guess is that every Democratic nominee will favor a strong exclusionary rule.
5.1.2009 6:50pm
Hovsep Joseph (mail):
folks talk about appointing someone who is Black, or Hispanic, or female, sometimes based on anecdotal or stereotypical beliefs about such individuals, without mentioning the fact that it is rather illegal for the rest of us to base hiring decisions on such criteria. Whether he is legally required to do so or not, why shouldn't we expect President Obama (or any othe President)to lead by example in such matters?

A Supreme Court justice is not "hired" in the way an accountant is hired. This is a political appointee which means political considerations are at play. Most importantly, it undermines the legitimacy of the institution if the court has an absurd gender imbalance. If we were starting from scratch, making picking a whole new court, I'd be more sympathetic to the idea that gender/race should not be considered. But we are starting from a highly disproportionate state where there are almost as many smart women lawyers as men out there but only one of nine members of the Supreme Court is a woman.
5.1.2009 6:53pm
Just an Observer:
What about Obama's expressed interest in nominating someone with ordinary empathy? Is there anything about Kagan's background that makes her fit that image?

My suspicion is that empathy is just code for someone who is not a judge. She does fit that criteria, obviously.
5.1.2009 7:01pm
Prosecutorial Indiscretion:
My guess is that every Democratic nominee will favor a strong exclusionary rule.

But God forbid anybody call them soft on crime.
5.1.2009 7:04pm
MarkField (mail):

But God forbid anybody call them soft on crime.


Unless the crime is torture.
5.1.2009 7:07pm
BRM:
The exclusionary rule isn't soft on crime. It's hard on cops.
5.1.2009 7:23pm
Leo Marvin (mail):

But, it allows a president to appeal to any number of groups that are otherwise dissatisfied with the agenda by giving them a presidential act he can point to later.

Maybe he should appoint an unlicensed plumber.
5.1.2009 7:26pm
Silverman (mail):
The biggest issue with Kagan is raised by Prof. Kerr in his post: you don't know what positions she would take and her "public record is sparse." Souter was appointed by Bush 41 with a similarly truncated public record - and then went on to vote with the majority in Casey. By contrast, the appointment of Roberts and Alito (with sufficient jurisprudential records to investigate) is arguably Bush 43's most significant contribution to the conservative movement. Perhaps Obama can learn Kagan's positions during the vetting process, but he surely wants to select someone whom he comfortably knows will lean leftward.
5.1.2009 7:35pm
wooga:

The exclusionary rule isn't soft on crime. It's hard on cops.

"Hard on cops..."
...nevermind.
5.1.2009 7:50pm
CDU (mail) (www):

The job of the SG entails oral advocacy. But this issue would be irrelevant to a Supreme Court justice.

Tell that to all the people criticizing Justice Thomas for not asking questions during oral arguments.
5.1.2009 8:02pm
EverydayLiberal (mail):
Anderson, let me know when you get to be concerned with empirical data and perhaps we can talk fruitfully.
5.1.2009 8:16pm
Grumpy Old Man (mail) (www):
I won't be happy with his choice, because I'd like to see a reactionary Justice; and I'd like to see the sex and ethnicity factors ignored.

But please, can we have a politician, a practicing lawyer or a trial court judge, and not another appellate judge/White House lawyer? And perhaps someone not from the Harvard/Yale/Columbia Establishment?

This is a big country, and we have a big profession. We can have a qualified person without going to the same well.
5.1.2009 8:43pm
Prosecutorial Indiscretion:
The exclusionary rule isn't soft on crime. It's hard on cops.

I'm all for being hard on cops (heh heh - queue inner Beavis &Butthead) when they step out of line, but the exclusionary rule works more to the benefit of criminals than to the detriment of cops. Letting a criminal walk simply because the constable blundered is about as soft on crime as you can get.
5.1.2009 8:47pm
Brian Kalt:
If Obama names Kagan, and then Stevens retires and Obama appoints, say, Seth Waxman, then we will have the spectacle of five Republican-appointed Catholics on the Right and four Democrat-appointed Jews on the Left.
5.1.2009 8:57pm
Christopher Cooke (mail):
What about Bill Clinton? Or Hillary? Putting one of them on the Supreme Court will keep them out of Obama's hair.
5.1.2009 9:01pm
Eds:
I had been under the impression that Kagan is openly (uncloseted) gay, which seems significant. Is this just not the case?
5.1.2009 9:33pm
ANDKEN (mail) (www):
Hey, Portuguese people aren´t Hispanic. Even Brazilians, people in Latin America that speak Portuguese aren´t.
5.1.2009 9:47pm
Cardinal:
Bill Clinton, like Obama, had this weird hang-up about "real-world experience." As I recall, Clinton badly wanted to appoint a politician, such as Cuomo (N.Y. Gov.) or Riley (S.C. Gov.), before finally settling on RBG. This "real-world experience" fetish of Clinton and Obama is just bizarre. A Supreme Court Justice is asked to interpret and apply the Constitution and laws of the United States, just as a NASA engineer is asked to interpret rocket data and apply appropriate forces. If I'm hiring a NASA engineer, I don't give a damn about his "real-world experience;" all I care is that he's brilliant when it comes to parsing data. Similarly, with a Supreme Court nominee, all that should matter is that he or she is brilliant when it comes to parsing Constitutional and statutory provisions. The idea that Mario Cuomo's ability to charm the citizenry of New York made him a credible Supreme Court nominee would be laughable, if it wasn't so sad.
5.1.2009 9:49pm
Duffy Pratt (mail):
An inspired choice, at least from a political standpoint, would be Senator George Voinovich (R) from Ohio. It would give Obama a filibuster proof Senate, even if Coleman never gives up. And I think it would probably be a shift left from Souter. And it would give the Court a real politician for the first time in a long time. Won't happen. (It would also be nice to see the Republican hatchet machine again savaging one of their own.)

The PC choices (like Kagan) bore me to tears. I'd much rather see him nominate Koh. Or even Koh's future boss, or her husband.
5.1.2009 10:09pm
John msd (mail):
Prof. Volokh's name should definitely be thrown into the ring. Obama has an absolute incrediable opportunity to reject the idea of "needing" a justice to "balance" the ideological views of the court. Obama promised change in the way the political process is managed. Nominating a potential jurist because of their legal mind, would do much good to change politics and effectively say, "we are doing it the correct way from now on" and no more of the BS from the Bush years represented as Hariet Miers.
5.1.2009 10:39pm
Portuguese Patrol:
Cardozo was Lusitanic, not Hispanic.
5.1.2009 10:57pm
Cornellian (mail):

A politician would be dead last in my order of preference, even behind law professors.
5.1.2009 11:02pm
David Welker (www):
Elena Kagan would certainly be a fantastic pick for the Supreme Court. She certainly was an excellent Dean of Harvard Law School.
5.1.2009 11:09pm
J. Aldridge:
If Kagan's position on war powers and child rape are the same as Souter than don't count on it.
5.1.2009 11:31pm
PlugInMonster:
She's an ugly dyke and so she' wont' get appointed.
5.2.2009 2:26am
Leo Marvin (mail):
PlugInMonster,

Congratulations. That's a new low.
5.2.2009 2:33am
mrmes04:
The exclusionary rule is not hard on cops. The exclusionary rule is protective of innocent individuals who do not want to be searched without probable cause or reasonable suspicion, depending on the circumstances. If the exclusionary rule were pulled back, I would want to see extremely tough rules put on police officers...so that if they collected evidence through illegal processes, they would be docked pay or disciplined. So the ER protects cops from the alternative...they get off free, but so do a few crooks. It would be a wash, but then add in the innocents that are not harassed by police and you have a clear case for the value of the ER. I sincerely hope Kagan or whomever safeguards the ER. Cops and prosecutors can still get the bad guys.
5.2.2009 4:11am
Oren:

so that if they collected evidence through illegal processes, they would be docked pay or disciplined.

Screw that. If we don't have exclusion, we should go all the way back to the original understanding of the power of the Sheriff: if an officer acts in violation of the law, he's no longer acting as an agent of the State. That means that searched a house without a warrant is armed home invasion, effecting a false arrest with a baton is assault with a deadly weapon plus aggravated kidnapping.
5.2.2009 8:45am
mrmes04:
and that's why exclusion works so well. Often a police officer's mistake is not so egregious that it offends humanity (not torture). It would be a shame to dock his pay or discipline him on a liminal question. On the other hand, if you've ever been searched by police when you were innocent, you realize how demoralizing and dispiriting it is. There are still DP suits for the worst violations, but in the meantime, the ER provides a really excellent and workable rule. Pls preserve it next supreme ct. justice!
5.2.2009 9:04am
BGates:
What about Obama's expressed interest in nominating someone with ordinary empathy? Is there anything about Kagan's background that makes her fit that image?

She's not a white man.

Maybe he should appoint an unlicensed plumber.

The only one Obama knows had a tax lien against him, so he's probably going to end up in the Cabinet.
5.2.2009 2:19pm
Fat Man (mail) (www):
Lani Guinier! Let's have a real leftist!
5.2.2009 3:57pm
Joker (mail) (www):
(HUMOR ON)
Obama will nominate Anita Hill because he:(a) has a sense of humor, (b) wants to make Clarance Thomas uncomfortable, AND (c) likes the spectacle of Anita Hill following Clarance Thomas to a THIRD place of employment. What is the saying? Three Strikes, You're Out? The Third Time is a Charm? etc
(HUMOR OFF)
5.2.2009 4:33pm
Nick056:
BGates,

Okay, that was funny.

And I think it's a done deal that it'll be Kagan. Although Pam Karlan would be a wonderful pick as well, apropos of the exclusionary rule discussion going on here.

Orin,

Off-topic, but I wanted to take the opportunity to say I appreciated your reflection on Souter in the Times. I came upon it without knowing you'd be included, and it was a treat.
5.3.2009 4:04am
Azatoth:
For what it's worth, I would love to see Leah Ward Sears nominated. I think she has done a bang up job on the Georgia Supreme Court.
5.3.2009 4:27pm
Joker (mail) (www):
Hi,
Super post, Need to mark it on Digg
Joker
5.4.2009 11:00pm

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