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THE SUPREMES - the wertz generation
the scourge of complacency
Since David Souter announced his resignation from the Supreme Court, speculation has been rampant about who President Obama might nominate as his replacement.

For those who might wish to discuss the potential candidates a bit more intelligently (and, really, who wouldn't?), the following are among contenders mentioned so far:

Merrick Garland (federal judge, US Court of Appeals)

Thomas Goldstein (head of the Supreme Court practice for Akin Gump and co-ounder of Scotusblog)

Elena Kagan (Solicitor General of the US)

Harold Koh (Dean of Yale Law School)

Robert A. Levy (chair of the Cato Institute)

Charles Ogletree (Harvard Law School professor and Obama advisor)

Deval Patrick (Governor of Massachusetts)

Lucas A. Powe Jr. (University of Texas law professor who doesn't even make it to wikipedia)

Leah Ward Sears (Chief Justice of the Georgia State Supreme Court)

Sonia Sotomayor (federal judge, US Court of Appeals)

Kathleen Sullivan (Stanford University law professor)

Cass Sunstein (University of Chicago law professor and Obama advisor)

Seth Waxman (former Solicitor General under President Clinton)

Diane Wood (federal judge, US Court of Appeals)

David Yalof (associate professor of political science at the University of Connecticut)

Kenji Yoshino (New York University law professor)

Actually, I'd just assembled this list for a new thread at America's Debate, so I thought I might as well post the list here, as well.

The best idea so far, though has come from Michael Sean Winters at America magazine: put Al Gore on the Supreme Court.

The choice would be electrifying. ...

Ultimately, the case for a Gore appointment is simple. Conservative jurists justify their rulings by appealing to abstract principles such as "strict construction" or "original intent of the Founders" this last despite the fact that even a modicum of historical familiarity with the Founding shows that the Founders had many and varied intentions for the Constitution they crafted. Liberal jurists care about the real world effects of a law. No one has been the object of both conservative hypocrisy (whither states rights?) and a very nasty real world application of the law in the way Al Gore was in Bush v. Gore.

I suspect President Obama will have other nominations by which he can bring other perspectives to the High Court's proceedings. Mr. Gore might not even desire the appointment. But, in one stroke, Obama could avoid any intra-party grumblings and show to all the world that injustice can be rectified.

Oh, hell yeah! Can you imagine Scalia and Thomas sharing a bench with Al Gore? "Electrifying" wouldn't begin to describe it...

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zulfiqar_rgh From: zulfiqar_rgh Date: May 6th, 2009 12:09 am (UTC) (link)
Based on the fact that this Court is in dire need of some diversity (and there are political constituents to reward/placate) I'm guessing that someone like Sotomayer seems most likely at this point. Female, Hispanic, a poor background, and something of a pragmatic background. Rumor has it that she may not be the brilliant jurist that Obama wants, but he doesn't have to "nail it" right away, I suppose. After all, he's likely to get at least two more appointments. Justice Stevens is 89. And Justice Ginsburg has a pretty nasty form of cancer. She's also nearing "ancient" descriptions. Justice Kennedy is 72, and Justice Scalia is 73. Neither are in bad health, but neither are inhabiting the bodies of much younger men, either. With rationalizations in parentheses, my wish list for the three picks would look something like this:

1. Judge Sonia Sotomayer (Female, Hispanic, Pragmatic, Youngish)

2. Prof. Kathleen Sullivan (Female, Lesbian, Brilliant, Youngish)

3. Prof. Kenji Yoshina (Asian-American, Gay, Young, Brilliant, Cute)

(And if we're so lucky)

4. Chief Justice of GA Supreme Court Leah Ward Sears (Female, African-American, well-respected)


4. Gov. Jennifer Granholm (Female, Executive & Legal experience, Young)


4. Solicitor General Elena Kagan (Female, Brilliant, Young)

As you can see, I'm willing to wait on a gay nominee, but if he's going to have three, I want expect of them to be openly gay. I would be very disappointed otherwise, and would demand something major in return from him. You'll also note that I have left off Hillary or Al Gore. I'd love to see either on the Court, but they're both in their 60's now. This is, obviously, a major negative in consideration. Though, I don't think any of us would mind seeing the loss of 10 years so that Al can finally, pardon the pun, get some justice...
wertz From: wertz Date: May 6th, 2009 12:43 am (UTC) (link)
I thought we were just about to lose our first gay justice. You're not going to tell me Souter is straight, are you?

Sotomayor may not be the worst choice, but I suspect the recent Ricci v. DeStefano case will be used as a bludgeon by the GOP to kill her nomination. I doubt Sullivan or Yoshino have much of a chance, either - sadly.

Obama may still try Sotomayor, but he might also try Deval Patrick (unless he thought it would look too much like identity politics). But I do think Al Gore would be a brilliant choice - and not solely for the poetic justice.
zulfiqar_rgh From: zulfiqar_rgh Date: May 6th, 2009 01:11 am (UTC) (link)
Indeed. It's a good point. When talking about Justice Souter, I do need to remember to say things like "openly gay" versus just "gay," don't I? Or, perhaps that's just insensitive? Maybe I should stick to the official line of "active jogger."

I'm not sold on Sotomayer, personally. I doubt Obama will be completely, either. I know Obama is a big fan of Richard Posner, and I don't really get that kind of vibe out of her. He'll be looking for a left(ish) version of Posner, I'm sure of it. The academics seem most likely because of that. But I'm also sure that Axelrod & Co. will be pushing the political considerations. They may want the fight with the REPS over Sotomayer. After all, it could further alienate the Hispanic Community from the GOP.

This is a fun guessing game, actually. In private discussions with friends and students, I've proven to be really good at guessing Obama's picks right. But on this one I have no clue. I doubt it will be Sullivan, or my favorite cute boy, Yoshina. I'd say following the pragmatism trail is the best bet. Unless, of course, Obama "goes big." He does like the big show, after all...
wertz From: wertz Date: May 6th, 2009 02:30 am (UTC) (link)
Yeah, this one is hard to second-guess. I suspect that, for this nominee, he'll go with someone he thinks is "safe"and won't create too many waves in the advise and consent process. I'm just not sure who that is.
zulfiqar_rgh From: zulfiqar_rgh Date: May 6th, 2009 02:49 am (UTC) (link)
Perhaps. What's odd about all of this is that he's taking any time at all. Pat Leahy said in an interview today that both he and The White House had known for some time that Souter was retiring. So why the wait now? Either they really have been busy, not unreasonable considering all that's been going on, or they're letting Sotomayer float out there to see what all comes to the surface. Or perhaps Barry is dithering. Presidents have been known to agonize over these things. Clinton and Cuomo, Reagan and Bork/What'sHisFace/Kennedy, Bush & Eisenhower and their collective buyers remorse, etc. all good examples of difficult nomination issues.

I do think an academic is more likely than not, however.
wertz From: wertz Date: May 6th, 2009 02:51 am (UTC) (link)
Yeah, apparently Obama had a shortlist together by mid-December 2008. Of course, it could be tough to decide who from that list to put forward...
zulfiqar_rgh From: zulfiqar_rgh Date: May 6th, 2009 02:54 am (UTC) (link)
I think so. As with the Cabinet, the Dems have quite a lot of talent at the moment. Well, at least it seems like they do. Perhaps it's just how well they stack up against the Republicans that makes it seem so much like too many A-listers for not enough positions...
wertz From: wertz Date: May 6th, 2009 03:54 am (UTC) (link)
Yeah, it might be relative...
zulfiqar_rgh From: zulfiqar_rgh Date: May 11th, 2009 04:10 pm (UTC) (link)
Well, I think we now know why they've waited. It's so not to kill the news cycle on the Health Care news they're announcing today. Krugman is happy; Ezra Klein is nervous. The numbers are big. These factors probably mean a pretty big news cycle. I bet they don't want to step on it. I bet we get the pick next Monday. Chuck Todd says he has the leaked "short list" on his "First Read" blog today. The names? These 6:

The co-frontrunners (in no particular order): Diane Wood of the 7th Circuit, Solicitor General Elena Kagan, Sonia Sotomayor of the 2nd Circuit, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and Merrick Garland of the DC Circuit Court of Appeals.

Disappointing the GLBT names didn't make the cut. Not surprised, though. There's no way that they'll get in the way of this Health Care stuff that's coming in June. A big SCOTUS fight would do just that. Looks like he will go as liberal as he can - without a fight. I'm okay with waiting - for now. But if he gets three picks, then I would want one of them to be openly out. I really do love pragmatism as a philosophy, but it does struggle to include political/minority issues. To some extent, I think we're seeing the disadvantage of pragmatism in action with this pick. On the other hand, I don't really dislike any of those picks, either. I'm pretty sure they would all do what liberals would want them to do with their votes.
wertz From: wertz Date: May 11th, 2009 09:17 pm (UTC) (link)
Hmmn... Pity about Leah Ward Sears, too.
bon_homme_dane From: bon_homme_dane Date: May 7th, 2009 07:57 am (UTC) (link)
LOL, I'd love it if Al Gore was on the bench!
wertz From: wertz Date: May 7th, 2009 04:29 pm (UTC) (link)
Definitely. And it would drive the "textualists" crazy.  :D
bon_homme_dane From: bon_homme_dane Date: May 7th, 2009 07:29 pm (UTC) (link)
It sure would be some payback..lol!
wertz From: wertz Date: May 8th, 2009 10:25 pm (UTC) (link)
Plus he'd probably be fairly good at the job.
bon_homme_dane From: bon_homme_dane Date: May 9th, 2009 11:57 pm (UTC) (link)

fairly good

Yeah, some pragmatism and some reason to the court, but hey THEY DON"T MAKE POLICY....
wertz From: wertz Date: May 10th, 2009 01:49 am (UTC) (link)

Re: fairly good

Exactly, though. That's why a bit of pragmatism and reason might come in handy.
16 others have so why not generate commentary