Before the election, I wrote two posts (here and here) on likely Democratic nominees to the Supreme Court. It seems an appropriate time for an update. For example, despite my earlier predictions, Elliot Spitzer’s odds now seem lower, and President Obama is unlikely to appoint himself.
Equally important, we can learn something from the President’s initial appointments to other jobs in the government. In my opinion, they seem pragmatic and focused on objective qualifications (including academic appointments) and tend less than did those of Clinton and Bush 43 towards friends of the President. The appointments to date have also involved few totally out of the box and unexpected choices. The appointments have been diverse, but the choices don’t seem race and gender driven.
We also have the benefit of the President’s specific appointment of Elena Kagan to be SG, which elevates her prospects considerably.
In my opinion, if there is an appointment this summer — which principally means that some otherwise serious candidates will not yet have had the time to be appointed to a court of appeals and develop experience there — there are three reasonably clear front runners, and one dark horse candidate. All are women, for the simple reason that there is only one woman on the Court now and I cannot imagine that the President will conclude that he cannot find a highly qualified female nominee.
The three obvious candidates are Elena Kagan (SG), Sonia Sotomayor (CA2), and Diane Wood (CA7). The sleeper candidate is Michigan Governor Jennifer Granholm.
All four were born between 1950 and 1960. Diane Wood is the most respected as a judge. But she is the oldest (born 1950), and as a consequence a seat this summer would likely be her one shot. Kagan and Granholm have the advantage of being the youngest (born in 1960 and 1959, respectively). Granholm has experience dealing with legislatures and actually representing people, as well as law enforcement experience as the state’s attorney general. Sonia Sotomayor has the advantage that she would be the first Hispanic nominee to the Court; she also served as a trial judge. She and Judge Wood have the longest written track record, but not one that would present any obstacle to confirmation with this Senate.
Because each has advantages and none knows the President particularly well (though Kagan knows him a little and will now be exposed to him more), I think it would be silly speculation to say that anyone on this list is substantially more likely than the others. Assuming (as is very likely) that each comes through the vetting process fine, the choice will likely depend very much on the interview process.
We can also infer from the list what will happen to the Court after the next appointment. The retirement would almost certainly be a member of the Court’s left — Justice Stevens or Justice Souter. (Justice Ginsburg has made her intention to stay clear.) None of the likely replacements would reshape the Court in the slightest, including by laying the foundation for a shift in jurisprudence through dissenting opinions. None is a visionary and committed progressive. Each is on the left, but none is regarded as a classic liberal in the Warren-Court mold. Their ideology is more likely to resemble Souter, Ginsburg and Breyer on the left or Kennedy or O’Connor on the right; not Marshall or Brennan.
Of course, my conclusions about the direction of the Court have a real question-begging quality. I offer a list of people without a strong liberal worldview and conclude ipso facto that the Court won’t change. The President could appoint different and still highly qualified nominees, assuming a willing Senate. Someone like Pam Karlan (Stanford Law School) comes to mind, or a young version of Rosemary Barkett (CA11). So, I’m actually working from the (disputable) premise that the President’s apparent pragmatism will put bounds on the ideology of possible Supreme Court nominees. We shall see.
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