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Goldstein on the Democratic Short List:
Over at SCOTUSblog, Tommy Goldstein speculates about who might be nominated for the next Supreme Court spot if a Democrat wins the White House in 2008. It's all speculation, of course, but it's interesting speculation.

  UPDATE: I noticed that Judge Diane P. Wood of the 7th Circuit is in Tommy's full chart of possibilities, but not on his list of likely picks. Although Judge Wood is slightly older than some of the others (born in 1950, so she would be 59 in 2009), I wouldn't be surprised if she ends up at the top of Democratic short lists. From what I know she is an excellent judge, and her sterling credentials and experience on the Seventh Circuit would probably help a great deal in the confirmation process.

  ANOTHER UPDATE: Commenter "Actuarial Advantage" raises an excellent point: Given that women live on average 5 years longer than men, a President probably has more flexibility on the age of a female SCOTUS nominee than a male SCOTUS nominee.
anonVCfan:
I'm surprised that Diane Wood isn't on the list.
7.12.2007 2:43pm
AF:
Is it all speculation? Might some of the anonymous folks he consulted be some of the same people who would compile the actual short list in the event of a Democratic presidency?
7.12.2007 2:47pm
OrinKerr:
anonVCfan -- funny, I just updated the post to add a comment about Judge Wood. I agree -- I think she would be a top pick.
7.12.2007 2:55pm
Dennis Murashko:
I was surprised that Goldstein even listed Harold Koh. From what I know of Koh and his open contempt for everything right of center (maybe even for everything in the center as well), it would seem that his nomination will be a very tough sell. Contrast him with Dean Elena Kagan, who plays nice even with those whose position she does not accept.
7.12.2007 3:03pm
DrGrishka (mail):
What's interesting is the dearth of real heavy-hitters on that list. Where are the liberal equivalents of Luttig, Wilkinson, Easterbrook, Roberts, Kozinski, Posner on that list?

That is not to say that the list is lightweight, as for instance Deans Koh, Kagan and Sullivan are certainly top-notch, but it strikes me that it just doesn't measure up to the GOP list of 2000.
7.12.2007 3:28pm
DrGrishka (mail):
What's interesting is the dearth of real heavy-hitters on that list. Where are the liberal equivalents of Luttig, Wilkinson, Easterbrook, Roberts, Kozinski, Posner on that list?

That is not to say that the list is lightweight, as for instance Deans Koh, Kagan and Sullivan are certainly top-notch, but it strikes me that it just doesn't measure up to the GOP list of 2000.
7.12.2007 3:28pm
deje:
Where were the GOP's Luttigs et al in any year prior to 2000?
7.12.2007 3:40pm
Greedy Clerk (mail):
Goldstein obviously knows NOTHING about Judge Johnnie Rawlinson's jurisprudence. She is a reliable conservative vote on just about all issues re criminal justice. She almost always votes with O'Scanlain et al on other issues as well. Note to Tom Goldstein: Just because someone is a black woman (query whether he knows she is a woman) and was appointed by a dem president (a conservative Democrat however) does not meant that Judge is "liberal" by any measure.

Also, Wardlaw?!??? I am still laughing at that one.

Tom's analysis of Republican nominees has been spot-on but he doesn't have a leg to stand on here -- perhaps he is unfamiliar with the 9th Circuit being that he is from the east and clerked there.
7.12.2007 3:40pm
Greedy Clerk (mail):
Goldstein obviously knows NOTHING about Judge Johnnie Rawlinson's jurisprudence. She is a reliable conservative vote on just about all issues re criminal justice. She almost always votes with O'Scanlain et al on other issues as well. Note to Tom Goldstein: Just because someone is a black woman (query whether he knows she is a woman) and was appointed by a dem president (a conservative Democrat however) does not meant that Judge is "liberal" by any measure.

Also, Wardlaw?!??? I am still laughing at that one.

Tom's analysis of Republican nominees has been spot-on but he doesn't have a leg to stand on here -- perhaps he is unfamiliar with the 9th Circuit being that he is from the east and clerked there.
7.12.2007 3:44pm
DrGrishka (mail):
Deje,

I can't speak of the lists in prior years, because really 2000 was teh first time I really started to grasp the issues (First time I was eligible to vote as a newly minted citizen was in 96). But I would think that with the Court really being in balance, a better list could be compiled.
7.12.2007 3:46pm
anonVCfan:
Dr. Grishka,

I wonder if it might have something to do with the fact that Clinton (1) had a Republican Senate for most of his tenure, and (2) wasn't interested in pushing the envelope on the judiciary by nominating people who were in their 30s and who had well developed liberal views of the law.

Clinton did nominate several brilliant court of appeals judges. Pierre Leval, Diane Wood, Marsha Berzon, Jose Cabranes, Guido Calabresi, William Fletcher, Sandra Lynch, Karen Nelson Moore, William Bryson, David Tatel, Sidney Thomas, Merrick Garland, and Diane Motz are all extremely sharp intellects. Some of the heaviest hitters on the list, though, weren't nominated for their actuarial qualifications (Calabresi and Leval turned 62 and 57, respectively, in the years they were nominated), and others weren't even nominated for their politics.

There are also at least handful of district judges who'd fit the bill.
7.12.2007 3:53pm
blackdoggerel (mail):
In response to one commenter's question, "where are the real heavy-hitters" on this list, I think there are a couple pertinent responses:

1. Not to be impolitic, but Goldstein's list (especially his first list) expressly takes into account demographic concerns, which -- especially concerning gender and ethnicity -- are traditionally closer to a Democratic's heart than a Republican's. When you include additional conditions on a nominee's background, you're necessarily going to narrow the list. I mean, it's a crime that a judge like Merrick Garland is too "white and male" to receive serious consideration for the first seat that's open, even though he is by far one of the judicial powerhouses of today's left. I'm sure Judges Rawlinson and Wardlaw are fine judges, but they are just not even in the same ballpark as Garland (or David Tatel, who I don't think is "too old," as Tommy G. thinks). Republicans simply don't place as much emphasis on minority representation, and that's why they are more comfortable nominating people like Roberts and then Alito, whose academic, judicial, and professional qualifications were essentially impeccable. (And when the Republicans -- rather, President Bush -- tried to make a demographic pick, they came up with the woefully unqualified Harriet Miers.)

2. Conservatives have spent the last 25 years developing a consistent and robust (more or less) approach to the law that is grounded in some basic doctrines. It stretches back to the founding of the Federalist Society, the Meese Justice Department, and the rise of judges like Scalia, Silberman, Easterbrook, Kozinski, Luttig, Wilkinson, and so forth. All of today's conservative "heavy hitters" come out of that tradition. There's really no comparable tradition for liberals -- that was what the conservative movement was acting *against*, and the liberals never really found anything to match it (and really still haven't; ACS is a fine organization, but it hasn't really come up with academic or doctrinal underpinnings to gird liberal decisionmaking, which still tends to view everything through a results-oriented lens).

3. The liberal "heavy hitters" are, these days, individuals whose views are pretty far out of the mainstream of the law. Most of them are academics, where they can safely expound theories that are more and more detached from the practice of law and general public acceptance. If you've ever read any of Harold Koh's stuff, for example, you'll know that if it were actually explained to senators or the American public, it would be greeted with extraordinary skepticism, if not outright hostility (even by most Democrats).
7.12.2007 4:25pm
Dave N (mail):
I think there will be pressure for the next Justice (regardless of the President's political affiliation) to appoint the first Hispanic Supreme Court Justice ss well as return the Supreme Court to two female Justices. Despite her name, Judge Wardlaw fits both requirements.
7.12.2007 4:27pm
Dave N (mail):
(amazing how incoherence/typing incompetence always shows up after hitting "Post Comment")

Obviously, the first sentence should have read "I think there will be great pressure for the next President. . ." not "the next Justice. . ."
"
7.12.2007 4:29pm
anonVCfan:
in line with Dave N's comments, I admire Tom Goldstein's restraint in listing each jurist's occupation in the "principal qualification" column in his chart of likely nominees and not, for example, writing the person's gender or race in that column.
7.12.2007 4:42pm
Bretzky (mail):
Without a doubt, if a Democrat wins in '08 and gets to appoint a Supreme, that nominee will have a 100% chance of being a woman and a 75% chance of being a Hispanic.

Of course, if a Republican wins in '08 and gets to appoint a Supreme, that nominee will have a 100% chance of being a woman and a 50% chance of being a Hispanic. A Republican nominee would have a higher chance of being either a non-Hispanic white or black woman than a Democratic nominee.

I think we all know that, for the next Supreme Court seat, men need not apply.
7.12.2007 4:59pm
Quick question (mail):
It's worth noting that the pool from which a Democratic President could draw will likely be much larger in 2011 -- and of course, larger still in a second term -- than it will be in 2008. I agree with Goldstein's premise that a SCOTUS nominee will likely be someone who's already a judge or has some other "comparable" political office. But if the President could pluck bright, young liberals from Academia or private practice and put them into CoA judgeships in the first few years of his term, then he could then nominate them to SCOTUS a few years later. After all, were many people touting the candidacy of John Roberts when he was still at Hogan? If we eliminated the criterion that the candidate must *now* be a judge or politician (or law school dean), who else would be added to the list?
7.12.2007 5:09pm
Actuarial Advantage:
The list has an age cut-off based on the assumption a President will want to have his nominees serve for a fairly lengthy period. However, given the longer life span of women, a President might be willing to nominate a female who is a little older than the male candidates. The list should probably be adjusted to include the females who just missed the cut-off.
7.12.2007 5:11pm
OrinKerr:
Greedy Clerk,

Aren't the Wardlaws good friends of the Clintons? I vaguely recall that, although I don't know for sure.

Quick question:

I agree with you. However, when you write, "After all, were many people touting the candidacy of John Roberts when he was still at Hogan?," the answer is "yes."
7.12.2007 5:21pm
magoo (mail):
It'll never happen, but Justice Eliot Spitzer would be one wild ride.
7.12.2007 5:25pm
Quick question:
I agree with you. However, when you write, "After all, were many people touting the candidacy of John Roberts when he was still at Hogan?," the answer is "yes."

Interesting. I actually haven't been following this issue closely for very long. Now that you mention it, though, I recall that Miguel Estrada was likewise tabbed by some as a good candidate to move from private practice to the Supreme Court, with a pitstop on the Court of Appeals along the way (which plan the Democrats were aware of and decided to scupper at step one rather than step two).

I realize that it's a slightly different topic, but do you have any thoughts on who some comparable liberals might be? That is, candidates who probably wouldn't be nominated to SCOTUS directly from their current positions, but who could be nominated for a short stay on the Court of Appeals en route to the Supreme Court?
7.12.2007 5:40pm
Former 9th Circuit Clerk (mail):
Orin-

Yes. The Wardlaws are good friends with the Clintons. In fact, I believe Bill Wardlaw played some role in President Clinton's two presidential campaigns.
7.12.2007 6:06pm
Jim Hu:
The problem with Actuarial Advantage's point is that the relevant number isn't when men and women die, it's when they retire. For SCOTUS there is only one data point, and O'Connor retired at 75 (I think). Ginsburg is still just younger than that.

I really don't know whether women in general are less interested in being carried out of their jobs in a body bag than men, but that is my uninformed and less than anecdotal impression. If true, I think it is at least partly related to women being more likely to have spouses older than they are, and wanting to spend some amount of retirement together before death does them part.

Is there data on average retirement ages for judges at levels below SCOTUS?
7.12.2007 8:00pm
OrinKerr:
Quick question,

I don't really know who the stars are on the left who would fit the bill. Roberts was a bit of a special case: he was such a star from such an early age that he really stood out from the pack. On the left, though, there are lots of top lawyers and academics to choose from.
7.12.2007 8:08pm
anonVCfan:
Mr. Hu, I think the answer to your question is yes, but it's not significant yet. If you go to the FJC website, you can search all of the bios of judges by a whole bunch of factors, including "gender" and "termination reason."

According to the site, 17 women have retired because of "death," and 7 women have retired because of "resignation."

The reason the data set is so small, I think, is because most of the women who have ever been appointed to judgeships were appointed within the last 30 years and are still on the bench. JFK appointed one female federal judge, LBJ appointed 3, Nixon 1, Ford 1, Carter 40, Reagan 29, Bush I 36, Clinton 104, and Bush II 60 (there are some duplicates, as there are judges like Barry who get appointed to the District bench by 1 judge and to the COA bench by another).

Another problem is that it's much more commonplace in the lower courts for a judge to take senior status once s/he becomes eligible (age + years of service >= 80). So, most people do that and die as senior judges rather than having to make the choice between (1) full active service until death and (2) full retirement.
7.12.2007 8:45pm
anonVCfan:
The data above refer to all A-III federal judges, btw.

It's kind of interesting how limited the pool becomes if you assume that the president will name a sitting judge, and then you add demographic considerations.

Right now, there are 28 sitting female judges on the courts of appeals nominated by Democrats, and an additional 100 on the district bench. (including those on senior status)

There are 8 sitting Hispanic judges on the courts of appeals nominated by Democrats, and only an additional 20 on the district bench (again, including senior status).

For African-Americans, the numbers are 13 and 76.

The pool gets even smaller when you factor age.

And this is all before one begins to think about things like merit---not all judges are created equal
7.12.2007 8:53pm
anonVCfan:
QQ, Pam Karlan, maybe? She'd totally get filibustered, though. It wouldn't be hard to write a "Pam Karlan's America" speech.
7.12.2007 8:59pm
Bretzky (mail):
Another issue with Actuarial Advantage's point is that it does not take into consideration that life spans are different at different ages. As men and women age, the life span difference narrows to nearly zero. Women do still have an advantage; but, it is, I believe, around 2.5 to 3 years once the age of 65 is reached, not the nearly 7 years in average life expectancy.

The biggest difference between men and women in life expectancy is that men are much, much more likely to die before the age of 20 than are women. It tends to skew the data.
7.12.2007 9:01pm
Dennis Murashko (mail):
I agree that we typically would consider gender differences that factor into expected retirement/death age. But look what happens when Presidents act on the following preference: appoint the youngest person in the relevant category (gender/racial minority, judicial experience, etc.) subject to the constraint that the Senate has to confirm that person. The constraint operates to exclude nominees who are in their thirties, for example, because the Senate is likely to think these nominees too young. But based on recent experience, someone around the age of fifty is confirmable. Thus, Presidents would appoint a man or a woman as close to that age as possible (or maybe even younger, if they can convince the Senate that the nominee has the requisite experience, whatever that means).

In other words, Presidents might not be thinking in terms of putting someone on the Court who can remain there for twenty-five years (assuming the expected life expectancy of male to be seventy-five). If that were the case, then yes, it would very much matter that a woman on average lives to celebrate her eightieth birthday (I'm guessing about the ages, by the way, but they suffice for purposes of illustration). But if Presidents are gunning for the youngest confirmable person, then expected retirement/death age is irrelevant.
7.12.2007 9:14pm
Steve:
Who was the last nominee that wasn't a sitting judge? It's been a long time.

It seems to me that it would be hard for a Democrat to nominate an academic, after such a long string of judges. It would be so easily demagogued.
7.12.2007 9:46pm
curious:
Who was the last nominee that wasn't a sitting judge? It's been a long time.

Rehnquist. He was Asst. AG.
7.12.2007 10:02pm
OrinKerr:
Indeed, Rehnquist and Powell were nominated the same day; neither were sitting judges.
7.12.2007 11:02pm
Poncherello:
To answer Steve's question (and to correct curious and Prof. Kerr), the last nominee who wasn't a sitting judge was Harriet Miers.
7.12.2007 11:43pm
Dennis Murashko (mail):
the last nominee who wasn't a sitting judge was Harriet Miers


Of course, but we all repressed that ugly memory.
7.12.2007 11:48pm
curious:
Of course, but we all repressed that ugly memory.

Yup.
7.12.2007 11:57pm
LM (mail):

Given that women live on average 5 years longer than men, a President probably has more flexibility on the age of a female SCOTUS nominee than a male SCOTUS nominee.

Actually, by age 60 it's closer to four years. And I don't know Judge Wood's birthday, but if it's between May and July, that could narrow the gap by another six months.
7.13.2007 2:14am