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.