The contenders
- by R.M. | WASHINGTON
NOMINATIONS to the Supreme Court are fraught with risk and opportunity. Ronald Reagan put his mark on the court by appointing three able justices in Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy. But many will only remember his failed nomination of Robert Bork, whose ugly confirmation battle set the tone for all those to follow. Mr Reagan's successor, George Bush, disappointed conservatives with the nomination of David Souter, which tipped the court to the left. In an effort to repent he chose Clarence Thomas with his next appointment, resulting in tumultuous hearings that featured allegations of sexual improprieties. Mr Bush's son also faced difficulty selling one of his favoured nominees: Harriet Miers, his underqualified legal counsel. But after withdrawing her nomination he tipped the court back to the right by replacing Sandra Day O'Connor, a swing vote, with Samuel Alito, a more conservative jurist.
With the retirement of John Paul Stevens, Barack Obama now has a second opportunity to shape the court, though his ability to alter the body's ideological make-up is limited. Mr Stevens is the leader of the court's left wing (despite being appointed by Gerald Ford) and Mr Obama is expected to choose a justice in his mould. But Mr Stevens has been an understated leader, and Mr Obama may choose to reinfuse the court with some of the liberal passion that past jurists, like William Brennan and Thurgood Marshal, displayed during their time on the bench.
There have been rumblings of Mr Stevens's departure for weeks, so the White House was prepared for his announcement. Mr Obama has said that he hopes to announce a nominee soon. Here is a look at some of the top contenders for the seat:
Age: 49
Current job: Solicitor General (confirmed by a 61-31 vote in March 2009)
Education: Princeton University, 1981 | Harvard Law School, 1986
Why she works: She has never been a judge. That might not sound like a qualification, but it means she has no judicial record for Republicans to pore over. In fact, she doesn't have much of a record at all. As Tom Goldstein of ScotusBlog points out: "I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade." Add to that a successful stint as dean of Harvard Law School, where she hired many conservative as well as liberal professors, and support from some prominent Republican lawyers, and you have yourself a prohibitive favourite. (Oh, also, we predicted this back in January 2009.)
Why she doesn't work: David Souter. Mr Souter was the last "stealth nominee" and what a disappointment he has been for conservatives. One of the reasons Ms Kagan looks easy to confirm is because she is a blank slate. But can Mr Obama be confident that she holds a judicial philosophy in line with his own view of the law? Ms Kagan served under Bill Clinton, first as associate White House counsel then in two domestic-policy positions. So one imagines any hints of a conservative disposition would have been sniffed out by now.
Ms Kagan is also likely to face criticism from Republicans over her effort to bar military recruiters from Harvard's campus in protest of the "don't ask, don't tell" policy. (In fact, she already has.) She joined an amicus brief on the issue which was rejected by the Supreme Court in an 8-0 decision. Still, don't be surprised if liberal groups also express disappointment over a Kagan nomination (which might be politically useful). They will be upset by her arguments as solicitor general for broad executive powers to fight the war on terror, and would prefer to see our next contender nominated.
Age: 59
Current job: Judge, US Court of Appeals for the Seventh Circuit in Chicago (confirmed unanimously in June 1995)
Education: University of Texas at Austin, 1971 | University of Texas Law School, 1975
Why she works: She is a moderately liberal judge who is as articulate as she is bright. Mr Goldstein of ScotusBlog says that at a hearing she "would be no less impressive than was Chief Justice Roberts." She may be the most respected jurist on the left today—she was the first person interviewed by Mr Obama after Mr Souter retired. She has a record of standing up to her conservative colleagues (Justices Richard Posner and Frank Easterbrook) and ruling in line with liberal thinking on divisive issues like abortion. She believes in a dynamic constitution, making her the perfect counterweight to the court's conservatives. And, for what it's worth, she is Protestant.
Why she doesn't work: She has a track record that could fill up conservative press releases and lead to a confirmation battle much more intense than the one over Sonia Sotomayor last summer. Stuart Taylor notes, "Some conservatives have assailed her as a hard-left judicial culture warrior whose passion for abortion rights is so strong that (they contend) she has disregarded Supreme Court precedents; and whose writings suggest that she might indeed strip 'under God' from the Pledge of Allegiance and make same-sex marriage a constitutional right." If she is nominated you will hear about the case of Scheidler v National Organization for Women, in which Ms Wood ruled RICO laws were properly applied against abortion protesters who were trying to block access to clinics. By an 8-1 vote the Supreme Court reversed the decision (with only Mr Stevens dissenting), but ScotusBlog notes that "Wood’s opinion was a judgment primarily about injunctive relief and the breadth of the racketeering statute, not on the right to provide an abortion or to protest."
Is Mr Obama looking for a fight? With a 59-vote majority and the mid-terms fast approaching, perhaps not. On the other hand, Ms Wood is the most impressive candidate on his list and would likely be confirmed eventually. One last point against her: she's ten years older than Ms Kagan, which could mean ten fewer years of liberal influence on the court.
Age: 57
Current job: Judge, US Court of Appeals for the District of Columbia Circuit (confirmed by a 76-23 vote in March 1997)
Education: Harvard College, 1974 | Harvard Law School, 1977
Why he works: Mr Garland is another bright and articulate judge. He is more moderate than Mr Stevens and has earned the respect of many Republicans. He has even received praise from Orrin Hatch, the Republican senator from Utah who sits on the Judiciary Committee. (Mr Hatch has already warned the president to pick a bipartisan candidate.) Considered a consensus builder, he has worked well with conservative colleagues and his track record is relatively free of potential Republican talking points.
Mr Garland has an interesting resume. He left the law firm of Arnold & Porter, where he was a partner, to serve as an assistant US attorney for the District of Columbia in 1989. Prior to becoming a judge he also worked on criminal matters in Bill Clinton's Justice Department, where he supervised the prosecution of Timothy McVeigh and Theodore Kaczynski, the "Unabomber". Mr Garland would have a relatively easy time getting confirmed.
Why he doesn't work: He is a white male and the court already has five of those. He is an ivy-league law-school graduate and the court already has eight of those. He is an appellate judge and, guess what, so was everyone else on the court. A Garland nomination would also not sit well with liberals, who would bristle at his moderation.
The others: Some of the other names that have surfaced as possible nominees include Janet Napolitano, who was a more realistic candidate before her gaffes (see here and here) as secretary of Homeland Security, and Hillary Clinton, who has settled in at State. Jennifer Granholm, Michigan's impressive governor, and Amy Klobaucher, a senator from Minnesota, are sometimes mentioned as possibilities, but when was the last time an elected politician was nominated for the court? (Ms O'Connor had been a state legislator.) In today's political environment, a politician's record of votes and legislation is seen as nothing but ammunition for the other side. (That means Deval Patrick, the governor of Massachusetts, is also an unlikely choice.) Cass Sunstein would be the most interesting pick for the court, but his writings on almost everything would make his confirmation hearings a free-for-all. There has been light chatter about other liberal jurists, but most are not considered serious candidates. Having said that, Mr Obama could surprise everyone and this list will be updated when new information is revealed or when new candidates are considered by the administration.
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