The legal community is still digesting the news that Supreme Court Justice John Paul Stevens will retire at the end of this term. The New York Times recently ran a profile of Justice Stevens consisting of the recollections of his former law clerks. Here is the link, in case you missed it. Justice Stevens was never considered one of the intellectual heavyweights of the Supreme Court, but I predict that we will come to miss his consistent, and traditional (some might say quaint), view of the limited role that the judiciary should play in crafting the laws that we live by.
Speaking of predictions, it is time to weigh in with your prognostications. Who will President Obama select to replace Justice Stevens. I will go first. I predict that the President will nominate Harold Koh, currently Legal Advisor to the State Department and former professor at the Yale Law School. My thinking is as follows: there is no political benefit to nominating a moderate like Merrick Garland of the D.C. Circuit because the Republicans will oppose the nominee no matter who it is. Therefore, President Obama might as well go as far to the left as he can with the nomination. But both Elena Kagan and Diane Wood have some (mostly exaggerated) association with either abortion or sexual orientation issues. Best to nominate a liberal who does not engender the opposition of social conservatives. Harold Koh fits the bill, given his focus on national security issues, and he would be the first Asian American Justice.
Share your own predictions in the comments. The winner will receive a suitable prize (to be determined).
I agree that Harold Koh seems like a likely pick. My long shot choice is Lawrence Tribe.
I think I have found a suitable prize:
http://blogs.law.yale.edu/blogs/rarebooks/archive/tags/Supreme+Court+Bobbleheads/default.aspx
It seems that the media is casting Kagan as the favorite. However, I predict that Obama will select one of two Stanford faculty members: Pam Karlan or Kathleen Sullivan. I find it more likely that he will choose the latter.
I suppose my picks run contrary to Prof. Fallone’s prediction that Obama will avoid strong social liberals.
Let me preface my prediction with a few quibbles, Professor, with other parts of your post. First off, though it is a popular consensus that J. Stevens was consistent throughout his career, I think a better reading is that he moved left over time. This is the comment made by C.J. Abrahamson to WKOW27 yesterday, acknowledged in Linda Greenhouse’s op-ed on the retirement, and shown more extensively in a New Republic piece by Texas’ Justin Driver.
Second, I would argue that Stevens’ decisions pushed an activist vision of the judicial role in our society, not a limited one.
Third, I don’t think Republicans would oppose Merrick Garland. Ed Whelan from EPPC, Curt Leavey from the Committee for Justice, and other conservative commentators have said that they would not push for a fight on Garland, who is generally considered a centrist.
Fourth, Diane Wood’s association with abortion stems from her decisions in the Scheidler v. NOW matter, where she did whatever she could to give the win to the pro-abortion forces. And Elena Kagan referred to Don’t Ask Don’t Tell as “a moral injustice of the first order,” a congressional statute enacted with significant Democratic support and signed into law by a Democratic president.
The one thing I’ll agree with you on is that the President’s nomination of Dean Koh would be “go[ing] as far to the left as he can.” His record on international law issues may make him a great candidate for the European Court of Human Rights, but not the US Supreme Court.
My own prediction is that the nod will go to General Kagan. The name that intrigues me most, though, is Leah Ward Sears, retired chief justice of the Georgia Supreme Court, for her work on family issues (see, e.g., this CNN.com op-ed: http://www.cnn.com/2009/LIVING/07/02/sears.family.divorce/index.html and this Law.com story: http://www.law.com/jsp/article.jsp?id=1202426226804).
While I agree with Professor Fallone that the right will oppose whoever Obama picks to replace Stevens, I don’t think Obama will select the most liberal candidate, the most likely being Koh, this time around for the following reasons.
1. Supreme Court nominations are more about politics than they are about law these days. While the idea of the first Asian justice might have some appeal, Obama will not nominate the most liberal person on the shortlist unless the upside outweighs the political downside. If the downside is the mobilization of the right in the next election, then the ideal candidate would not have taken controversial positions on hot button social issues, or issued an opinion that could be a rallying cry for conservatives.
2. A strong liberal on the court at this juncture has no upside for Obama for years, other than to issue scathing dissents of future Roberts Court decisions. Sadly, this reality will hold true through the possible retirement of Ruth Bader Ginsburg, either next year or in 2012. Barring sudden major illness to any of the 5 conservative justices, the most likely conservative to retire will be Scalia or Kennedy. If Scalia and Kennedy decide to hang on into their 80s, as Stevens has (and William O Douglas did before him in the same seat), we aren’t looking at a change in the current court’s far right balance until after 2016; in other words, not on Obama’s radar screen. Obama’s best shot at a strong liberal was last year when his popularity was highest, Democrats had 60 votes in the Senate and elections were still a couple of years out.
3. Obama’s natural tendency is to pick the middle course. Look for him to pick the candidate considered neither the most liberal, nor the most conservative among the short list. If he is inclined to pick Koh, look for him to float other candidates names who are even more liberal, perhaps Cass Sunstein, so Koh looks moderate by comparison. On the other hand, if he plans to go to the right, he will float names of even more conservative names first. I can’t think of any at the moment, though one publication mentioned Ted Olson, though I doubt anyone seriously believes Obama would select the man who argued Bush v. Gore for the Republicans to be his Supreme Court nominee. Still, if he wants to pick Garland, Obama’s people might float the name of a moderate Republican jurist to make Garland look more liberal by contrast.
4. One more angle to look at things. Stevens is the last Protestant Justice. If Obama picks Garland or Kagan, the Supreme Court would have 6 Catholics and 3 Jews, but no Protestants. It seems funny, but mainstream Protestants are still collectively the largest religious group in the country, and it seems odd for them not to have even one seat on the Supreme Court.
This is always fun.
Harold Koh is a bright and accomplished guy. We were on law review together back in the late Pleistocene Epoch and I recall him as the type of outgoing and friendly personality who might add to the collegiality of the Court.
But his nomination would be a political disaster for Obama. The Republicans would have a field day with his advocacy of transnationalism which the public would see (with some justification) as a surrender of American sovereignty. They would be able to take the question of “applying foreign law” in American courts and Harold’s views on natural security to exploit what is always a difficult bit of navigation for Democrats, i.e., avoiding the issue of appearing to be “soft” on national defense. It would serve (whether or not you buy into it) a developing campaign narrative that the Obama administration is ineffectual on national security issues.
Not only would a Koh nomination be unlikely to achieve cloture, I am not sure that he even gets to 50 votes. A good portion of the Democrats’ gains in the Senate consist of Blue Dogs from red or purple states. These Senators may not believe they can afford the vote.
I agree with Daniel. I think that the Republicans are unlikely to go after Garland. There will always be groups who see opposition as a way to mobilize their membership and appeal to donors, but I think there are lots of GOP Senators who, for a variety of reasons, will be happy to avoid this battle if he is the nominee.
But, given the political landscape, I don’t think that it can be Merrick. His nomination would upset what is already a disquieted base. Just as the President had to pass a health care bill to avoid a political meltdown, I don’t think he can nominate anyone who is not seen to be as reliably liberal as Justice Stevens has been.
At the end of the day, I think its probably Elena Kagan but let’s be a bit more adventurous.
I am going with Harvard Law Prof Elizabeth Warren. She meets the Obama empathy standard in a very neat way, having spent a great deal of time working on economic issues of particular concern to middle class families. She doesn’t make this appeal through a commitment to what some might see as an unbalanced role to judging or identity politics but by her own work and track record.
Because her academic work has been largely in bankruptcy and related areas, she probably doesn’t have as much of a paper trail on hot button issues.
She is (and I think this is sad) a bit old by the standards of current nomination wisdom (60). While she comes from the Harvard faculty, she is from the southwest and did not graduate from an Ivy League law school. That may be a plus.
But she’d sail through and help the Democrats regain a bit of populist appeal without subjecting themselves to the type of attacks that the Sotomayor nomination engendered.
It is somewhat disheartening the striking lack of diversity of experience on the Supreme Court. For all the talk of diversity on the Court, there really is a strong similarity of experience on the current Court. Moderate or Conservative; Christian or Jewish; White, Black or Latino — the entire Supreme Court has attended only a handful of law schools (I believe all but Scalia attended Harvard, Yale, or Stanford), usually clerked with Federal Judges or Supreme Court Justices, spent most of his/her career working a prestigious government position or taught law at an Ivy League School, and served as a Federal Appellate Judge. Meritocracy though it is, all prospective nominees, whether Republicans or Democrats, are strikingly removed from the average American by the time they get to the short list to be on the Supreme Court, and, IMO this is a problem. http://www.supremecourt.gov/about/biographies.
It would be nice to have someone who attended law school somewhere outside of three schools, who maybe held a job outside of government, or who ran for office (as a judge even).
There is still time to make your pick.
http://www.dailykos.com/story/2010/4/21/859045/-Obama-Ready-for-SCOTUS-Fight
Our winner is Daniel Suhr, for correctly picking Elena Kagan as President Obama’s nominee. Congratulations, Daniel! I will be in touch about your prize.
I promise not to spread the news of your victory around the Federalist Society offices.