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Who Would Obama Nominate to the Supreme Court?:
Over at Prawfs, Andrew Siegel had put together a list of potential Obama nominees to the Supreme Court if Obama wins in November and a Justice resigns. I think Andrew's list is particularly thoughtful; it's probably as close as we can get at this point to a prospective Obama "short list." Here's the list:
1) Diane Wood
2) Elena Kagan
3) Merrick Garland
4) Cass Sunstein
5) Teresa Wynn Roseborough
6) Leah Ward Sears
7) Sonia Sotomayor
8) Deval Patrick
9) Eric Holder
10) Barrington Parker, Jr.
  I'll add my own uninformed guesses and random thoughts to everyone else's:

  1) I would guess that Diane Wood and Merrick Garland would be the most easily confirmed if nominated. Both have a solid reputation for being extremely smart and liberal-but-not-overwhelmingly-ideological. Both are experienced judges and reasonably known quantities. They fall roughly into the Ginsburg/Breyer category, and I suspect either would be easily confirmed.

  2) As many have noted, Sonia Sotomayor is absolutely perfect on paper — female Hispanic from Yale Law who is a former prosecutor and Bush 41 nominee to the District Court. But I agree with Andrew's suggestion that many overestimate her chances. Sotomayor is a solid judge, but my sense is that she hasn't brought a lot of pizzazz to the Second Circuit. I would guess Obama the former law professor would aim for someone with more star power. (Plus, while Bush nominated her to the SDNY, it was only as part of a deal; she was a Moynihan pick, not a GOP pick. So I don't think her Bush 41 nomination to the District Court would actually mean anything.)

  3) My own guess is that a President Obama would nominate Deval Patrick, currently the Governor of Massachusetts, if one of the male Justices retired. Here's my thinking. First, Patrick and Obama share similar stories, and I understand they are friends. Second, Patrick's career reveals the kind of empathy and activism that Obama has said he values and that is harder to find among the career judges. Third, Patrick has more charisma than most of the others on the list.

  It's true that some interest groups on the left might not think Patrick is their ideal candidate. In particular, he is neither a woman nor Hispanic. But I can't imagine many on the left would object to a Patrick nomination: he has the potential to become a real liberal lion in the Justice Marshall mold, and my sense is that this is what most activists on the liberal side want more than anything else. It's true that conservatives would oppose Patrick, but a popular President with a friendly Senate can probably take that kind of risk.

  Anyway, that's my random speculation, probably not worth the e-paper it's printed on.
Paul Milligan (mail):
The best thing to be said about NObama nominating ANY Justices is that, most likely, his nominees will be liberals, no worse than those they replace. Except sadly, likely to be there a lot longer.
7.7.2008 8:36pm
OrinKerr:
Paul,

My expectation is that any Obama nominees would be significantly more liberal than the Justices they are likely to replace. At the same time, the ideology of the Justices at the ends matters less than that of those in the center in terms of the actual direction of the Court. So it may be that an Obama nominee would be very liberal, but that the difference would manifest itself mostly in solo concurrences and dissents that don't actually reflect the holding of the Court. Just my speculation, of course.
7.7.2008 8:45pm
GMUSL '07 Alum (mail):
I think that Deval Patrick's utter disdain for the First Amendment, as noted here by David Bernstein, might make him unconfirmable.

It's not like Patrick's a serious legal thinker, he's a politician. And politicians have much more of a record than do even the more controversial academics. After all, academics only speak for themselves and have no authority outside their classrooms. I suspect that if Obama is foolish enough to nominate Patrick, he may not get a majority even in a Democrat-dominated Senate.
7.7.2008 8:51pm
MarkField (mail):
I think the nominee will depend on the vacancy. If the first vacancy is, say, Stevens, then Obama can get a strong liberal on the Court with little fight. If, God forbid (and I do mean that), it were Kennedy or one of the even more conservative justices, then I would expect a relatively non-controversial pick -- someone with indisputable qualifications and no published extreme views.
7.7.2008 8:51pm
GV:
To the extent that it matters (I doubt it would), I think Sunstein would be entirely unacceptable to liberals given his views on FISA. I think another moderate liberal like Breyer or Ginsburg would be a travesty when the democrats will likely have a near filibuster-proof majority.

Wood is smart, but she's too much of another Breyer.

I also wonder if Judge Berzon from the Ninth Circuit would make his list.
7.7.2008 8:51pm
Neal Goldfarb (mail):
Patrick has the distinction of being the only one whose father played with Sun Ra. That's a plus in my book, but others may not agree.
7.7.2008 8:55pm
Brett Gardner (mail):
I agree with you completely, Mr. Kerr, that the nominee will likely be a more "liberal" version of Breyer/Ginsburg, will probably not tilt the balance very much, and will easily be confirmed.

I just wonder if he would actually nominate Patrick, and risk losing some "political capital", as they call it. Not that the Governor isn't qualified, because I think he probably is, but the appearance of cronyism or identity politics (though it seems nobody really has a problem with this when it comes to SCOTUS nominees) would be something I'd think a recently voted-in President Obama would want to avoid.

I do remember, though, reading about his ideal nominee, and the list did include qualities which Patrick has, so perhaps my reservation isn't worth the e-paper, either.
7.7.2008 9:02pm
OrinKerr:
GMUSL '07 Alum,

I disagree. For better or worse, things that annoy David Bernstein often do not annoy Democratic Senators. In what I think is the case you mention, Patrick was trying to help the placement of halfway houses to help reintegrate outsiders back into society. While you and I might see hsi position as insufficiently respectful of the First Amendment, I suspect most Democratic Senators would think it a factor in favor of the nomination rather than a factor against.
7.7.2008 9:08pm
Michael F. Martin (mail) (www):
Why isn't Michael McConnell on the list? He was the one who suggested that the University of Chicago Law School hire Professor Obama.
7.7.2008 9:08pm
Jim Hu:
Are any of the participants in the ACS panel that Randy Barnett was on possibles? Other than Barnett, that is - I suspect he would be tarred by association with the VC crowd in the eyes of the Obama vetters.
7.7.2008 9:12pm
John (mail):
It's hard to see how you think of Ginsburg as "liberal-but-not-overwhelmingly-ideological" (or, more exactly, think that people who are liberal-but-not-overwhelmingly-ideological "fall roughly into the Ginsburg/Breyer category"). Is there any lefty vote on the Court that is more predictable on ideological grounds than hers? Is there a single case that went before the Court over the last couple of years where you did not know in advance how she would vote, based solely on the result desired by the right vs. the left? (I will moderate that by asking if there was any more predictable vote).

I would like to know how you think Obama could pick some one more liberal than Justice Ginsburg.
7.7.2008 9:15pm
OrinKerr:
Other than Barnett, that is - I suspect he would be tarred by association with the VC crowd in the eyes of the Obama vetters.

I suspect being tarred by association with the VC crowd is not high on the list of reasons Obama would not nominate Randy.
7.7.2008 9:17pm
Joe Kowalski (mail):
Unless the Democrats are able to get to 60 senate seats without having to rely on Lieberman (a net pickup of 10 seats, and the odds on this are low) the Republicans will be able to have a moderating effect on Obama's appointees, much to the same extent that Bush's appointees were moderated by the Democratic minority in 2005. Basically, Obama will be able to appoint fair-minded liberals, but not much more extreme than that. Now, McCain if elected, will be in an even tougher position when it comes to getting the nominees he wants. He will be facing a 56-58 seat Democratic majority (and that number will be one more than if he lost as Janet Napolitano will fill his own seat with a Democrat) and at best he will be able to get clones of Kennedy or O'Connor, and rather good odds of pulling another Souter.
7.7.2008 9:19pm
BT:
Why only one pick? My guess is that BO will have two to three picks in his first four years. Ginsburg due to health and age and more than likely Stevens. The real plumb would be if a Kennedy stepped down or one of the other hated right wingers, then a Deval Patrick would sail through. The D's look like they are going to have control of the senate for some time and with Patrick they can play the race card to their hearts content especially if he is replacing a conservative. And don't forget he is from the southside of Chicago as is Stevens and BO. As for Sun Ra, hey Space Is The Place!!! which is exactly the reasoning that Patrick will bring to the SC. He'll fit in well with Souter and Breyer who for all intents and purposes are Sun Ra's progeny on the court.
7.7.2008 9:20pm
OrinKerr:
John asks:
It's hard to see how you think of Ginsburg as "liberal-but-not-overwhelmingly-ideological" (or, more exactly, think that people who are liberal-but-not-overwhelmingly-ideological "fall roughly into the Ginsburg/Breyer category"). Is there any lefty vote on the Court that is more predictable on ideological grounds than hers? Is there a single case that went before the Court over the last couple of years where you did not know in advance how she would vote, based solely on the result desired by the right vs. the left? (I will moderate that by asking if there was any more predictable vote).

I would like to know how you think Obama could pick some one more liberal than Justice Ginsburg.
John, I'm using a scale based in recent judicial history, not the current Supreme Court. Ginburg is a moderate liberal compared to Justices like Brennan, Marshall, Douglas, Blackmun and Warren. She moves the law to the left in small steps, not giant leaps. She is consistently liberal when the Court is ideologically divided, sure, but she is rarely a dissenting liberal vote when the rest of the Justices are voting in a conservative direction. That's why she was a noncontroversial pick for Clinton, and why Senator Hatch suggested her: She was obviously liberal, but she was also someone who took her role as a judge very seriously.
7.7.2008 9:23pm
frankcross (mail):
By the numbers, Ginsburg is pretty liberal but not overwhelmingly so. Stevens is a little more predictable.

And as Orin notes, you have to consider agenda change. Conservatives are in charge of the Court so they can basically set the agenda. The fact that she votes often against the conservative agenda does not mean that she would aggressively push a liberal agenda, a la the Warren Court. Of course, we don't really know.
7.7.2008 9:32pm
Cornellian (mail):
I dislike the idea of nominating any active politician, regardless of that politician's views. It's just a totally different skill set.

Sunstein would certainly be an interesting choice.
7.7.2008 9:40pm
OrinKerr:
Conservatives are in charge of the Court so they can basically set the agenda.

Frank, this may not be your main point, but I strongly disagree with this. There is no agenda at the current court excerpt for resolving splits that bubble up from the lower courts. Sure, cases are decided, one way or the other, sometimes in one direction and sometimes in the other. But there is no "agenda" in the Warren Court sense of Justices who want to take the law in a particular way and who comb through the docket and grant the cases they want to get there.
7.7.2008 9:41pm
hawkins:
I get the feeling many commentators believe a judge who does anything besides enforcing the text of the constitution is "far left" or "radical."
7.7.2008 9:41pm
Kevin O'Brien (mail) (www):
Patrick has been a dreadful governor. Of course, conservatives don't like him, but he's even alienated liberals including Massachusetts's de facto one-party legislature with his personal greed and his water-bearing for -- a word I can't mention thanks to VC's filters but it involves risking money in false hopes of winning more money -- interests. The Dems at the State House don't mind that the mob/vegas crowd has bought Deval, but they're cheesed off that they didn't get a rake-off, too.

He'll also face opposition from veterans' groups after his false claim to have attended KIA funerals (which is a pretty good illustration of his character, overall).

This may not amount to a hill of beans. If a President Obama wants him, the Senate will give him to him. I am not a lawyer, but I suspect that Obama's first nomination, at least, will come from the bench rather than the ranks of politicians or even the professoriat.

You probably couldn't do worse than a couple of the incumbents by grabbing two random people off the street, like a pressgang from the War of 1812. (Who those two awful incumbents are may vary depending on your own politics, but I suspect most Court watchers could name two they'd like to send to the showers).
7.7.2008 9:57pm
BRM:
Are any of the participants in the ACS panel that Randy Barnett was on possibles? Other than Barnett, that is - I suspect he would be tarred by association with the VC crowd in the eyes of the Obama vetters.

I think Prof. Goodwin Liu would be an awesome choice, although he may be a bit too young.
7.7.2008 10:03pm
Originalism Is Useful (mail):
What about Jose Cabranes?
7.7.2008 10:06pm
Anon321:
As long as we're speculating ... does anyone have any deep sleeper picks -- perhaps currently in private practice or academia -- who would likely need to be appointed to the Court of Appeals (or otherwise flesh out their resumes) before being nominated to the Supreme Court? That is, who could Obama appoint in 2011 or in a hypothetical second term? Are there any democratic equivalents of John Roberts, Miguel Estrada, or Mike McConnell out there? Or are the non-judges listed above pretty much it?

I suppose I might as well start the idle-and-completely-baseless speculation: Neal Katyal.
7.7.2008 10:07pm
Paul B:
You've left out an obvious choice, the junior Senator from New York. No problems with confirmation, it allows President Obama to appease women who make up the majority of Democratic voters, and it eliminates the most dangerous competitor in the 2012 primaries if things aren't going well. From Hillary's perspective, it gives her a position of power and influence that is completely divorced from her husband.
7.7.2008 10:10pm
Bar procrastinator:
Based on Obama's earlier comments about wanting to select Justices who empathize with ordinary people, I think it unlikely that he would pick a federal courts of appeals judge.

As a matter of professional craft, judges on the courts of appeals - particularly those hoping for an appointment to the Supreme Court - follow precedent closely, and thus are necessarily incrementalists. CoA judges who don't follow the pattern - Judges like Reinhardt and Berzon, for example - are seen as far outside the judicial mainstream, and thus would be difficult to confirm.

State Supreme court judges, academics, and politicians aren't subject to these limitations, and thus are more likely to have displayed real "empathy" in the prior professional lives. On this logic, Leah Ward Sears and Deval Patrick are Obama's most likely picks.

As someone who agrees with Judge Posner's assessment that the Court needs more political (and less legal) skill (see his 2005 HLR foreword), I think this is a good thing.
7.7.2008 10:14pm
trad and anon:
These days, the major qualification for SCOTUS seems to be having spent your entire life taking great care to make sure that you never produce a paper trail as having said or done anything controversial, so this list is a clear non-starter.
7.7.2008 10:19pm
A. Zarkov (mail):
OrinKerr:

"I might see hsi position as insufficiently respectful of the First Amendment, ..."


That's a little like saying North Korea was insufficiently respectful of South Korea's sovereignty when it invaded. If 1A means anything, it protects a person's right to petition his government for a redress of grievances. Patrick's behavior as AG really should disqualify him from consideration. If a future Senate would not reject him, then we will need a new Declaration of Independence.
7.7.2008 10:26pm
Splunge:
None of these choices seem audacious enough. How about Jeremiah Wright? Minister Farrakhan? Beyonce? His wife?
7.7.2008 10:34pm
OrinKerr:
A. Zarkov,

Your comment is a little like Hitler's invasion of Poland: it is more aggressive than the circumstances called for. ;-)
7.7.2008 10:36pm
Can't find a good name:
Kevin O'Brien: Is there a ban on the use of the word "gambling" in these comments?
7.7.2008 10:39pm
frankcross (mail):
Orin, conservatives set the agenda. I'm not saying they have an "agenda" in any political sense. But they basically control the cert process. Because liberals aren't going to vote for cert on a case they will lose. But conservatives may do so with the knowledge they will win. Uncertainty about Kennedy's vote probably keeps this from being too aggressive. They do emphasize circuit splits, but there a lot of those to choose among.

And the agenda plainly has changed as the Court has become more conservative, most notably on federalism issues but also on issues like securities law. Now, they don't have complete control, some cases are unavoidable. But on average, they are setting the agenda.
7.7.2008 10:43pm
Anon321:
None of these choices seem audacious enough. How about Jeremiah Wright? Minister Farrakhan? Beyonce? His wife?

My guess is that if Stevens is the first to retire, then Farrakhan's almost certainly the pick. If it's Souter, then Zombie Hitler.
7.7.2008 10:46pm
PabloF:
Originalism Is Useful,

Cabranes turns 68 later this year.
7.7.2008 10:47pm
Originalism Is Useful (mail):
So Cabranes is too old? I suppose that's fair, but since Obama will be replacing liberals with uber-liberals and thus only changing the tone of the court (via the new headlines/decisions taken up), it would make sense to get the best opinion writers possible.
7.7.2008 10:52pm
Smokey:
Wouldn't this guy appoint someone like William Ayres?
7.7.2008 10:53pm
Blue Jay, C.J.:
Are Orin's completely straight responses to the uninformed comments here intentionally or unintentionally hilarious? Either way, continue!
7.7.2008 11:06pm
BGates:
Smokey - that's ridiculous. Ayres is a white man.

Bernadette Dohrn, on the other hand....
7.7.2008 11:12pm
Another Possibility:
What about Jennifer Granholm? An HLS grad, COA clerk, AUSA, State AG, she has the legal cred to make it -- and her time as governor of Michigan undoubtedly led her to confront the challenges of poverty. Plus, she'd play very well in front of the cameras.
7.7.2008 11:19pm
Another Possibility:
What's more, Granholm has no known connections to the VC!
7.7.2008 11:21pm
OrinKerr:
Frank Cross writes:
But [conservatives] basically control the cert process. Because liberals aren't going to vote for cert on a case they will lose. But conservatives may do so with the knowledge they will win.
On what do you base this, Frank? In the overwhelming majority of cases, neither side has any good guesses at the cert stage about how cases will work out unless the lower court decision is an obvious fudge like a Reinhardt opinion. The court is just too evenly balanced. There may be a very very small subset of high profile cases in which guesses could be made. But in those cases, it is typically not the conservatives controlling the process. See, e.g., Boumediene.
7.7.2008 11:22pm
anomie:
Here's a weird thought: It is probably a political non-starter, but is there anything in the law that would prevent a sitting President from nominating himself to the Supreme Court, resigning the Presidency if confirmed? I wouldn't be surprised if Supreme Court Justice is a dream job of Obama.
7.7.2008 11:29pm
Joe Kowalski (mail):

I wouldn't be surprised if Supreme Court Justice is a dream job of Obama.

I get that feeling as well. If he loses (and a future Democrat gets elected) or manages to get elected, re-elected, and have a democrat succeed him, a future in the court may be the perfect way for him to want to round out his years.
7.7.2008 11:42pm
Originalism Is Useful (mail):
But [conservatives] basically control the cert process. Because liberals aren't going to vote for cert on a case they will lose. But conservatives may do so with the knowledge they will win.

I was trying to head this argument off. Four uber-liberals may take a case knowing that they will lose simply to have the fight, get their uber-liberal dissent on record, and draw the public's attention to the issue. In other words, a dissenting bloc can issue a press release that jump starts the political process.
7.7.2008 11:45pm
Brian G (mail) (www):
Doesn't matter who Obama picks, because it will be the same Justice. Far-leftist who thinks the Constitution is made of silly puddy and that the ACLU is never wrong.
7.7.2008 11:48pm
OrinKerr:
Brian G,

Don't forget that they will all be pinko godless communists, too.

But I think it's putty, not puddy.
7.7.2008 11:51pm
Brett Gardner (mail):
Not if you're talking about something else...
7.8.2008 12:45am
Asher (mail):
What about Jose Cabranes?

Way too conservative for Obama.
7.8.2008 12:48am
Volokh Groupie:
Two things---first Deval Patrick doesn't even have an approval rating above 50% in his own state this year

This is for good reason despite the fact he's in an overwhelmingly liberal state---he's an awkward speaker/politician who hasn't exactly demonstrated he's an intellectual giant. I've heard enough of my Mass friends of varying ideologies complain about the guy that I think his nomination wouldn't be as palatable as you suggest especially in what has become a highly politicized process.

And to anon321, the dark horse question and your subsequent analogy/suggestion are puzzling. The three republican nominated judges you suggested all had varying stories and don't necessarily fit the dark horse/elevation to circuit and then scotus motif. I seriously doubt McConnell needed the circuit court spot if he was ever a serious candidate--now I understand the argument that because of his erratic adherence to the conservative standard in law review articles, speeches, etc (in the political sense, because that's all the judiciary is about now to the media) that a circuit court spot would assuage fears about him--but all of his older material was still there, he wouldn't have had much time on the court anyway and while the blogging academia (including some impressive bipartisan support) may have wet themselves at the suggestion of his name (because he was an 'intellectual'), I doubt his nomination would have been so welcomed when Schumer would be grilling him on some of his law review writings. I still have doubts as to how serious his candidacy would have been. Estrada was a true dark horse--a highly decorated guy who was stonewalled because of fears he was a young minority originalist and because of the fact he had no real track record before his nomination. Roberts on the other hand was a prolific SCOTUS litigator and was harder to shoot down because he also had bi-partisan support.

Katyal has been in the middle of a bunch of controversial cases still fresh in everybody's mind (Hamdan/Grutter), has a ton of literature to vet and has primarily specialized in an area which is understandably highly politicized today--he's also young and media-astute. It strikes me that Katyal might already have the record to be nominated but that he's more likely a candidate to replace one of the 'liberal' justices in a hypothetical first term in order to bypass a divisive confirmation fight. Its a pretty safe bet that republicans will have their own version of pfaw, neither side is above anti-intellectual gotcha political squabbling.
7.8.2008 1:11am
Volokh Groupie:
I am curious as to whether Schumer or Leahy will ascribe super precedent status to Heller---or at the very least how some potential Obama nominees (if he wins) would answer questions on Heller.
7.8.2008 1:15am
Visitor Again:
Bernadette Dohrn, on the other hand

Who's Bernadette Dohrn?
7.8.2008 1:51am
Wahoowa:
Shouldn't Doug Kmiec be on this list? That's the only explanation I can find for his ridiculous shilling for Obama as of late.
7.8.2008 2:45am
Originalism Is Useful (mail):
What about Jose Cabranes?

Way too conservative for Obama.


I think you're buying into the caricature of Obama. If he were that guy, he'd have filibustered the FISA amendment.
7.8.2008 2:46am
jgshapiro (mail):
What about Dennis Archer? If he is looking for a black justice (which seems to be the logic behind some of your suggestions), Archer is a former Michigan Supreme Court justice and two-term mayor of Detroit as well as the first black ABA president. By most accounts he did a good job at all three positions. He might be too old, but he seems to have all of the right boxes checked (except perhaps name-brand schools).

It's hard to believe Obama would pick Patrick given the number of ethical problems Patrick has had in his short term as Governor.

In any event, the most likely retirement right away appears to be Ginsburg (for health reasons), in which case Obama would have no choice politically except to pick a woman. There is no way he could pick Patrick (or Archer) to replace Ginsburg. So you are down to Wood or Sotomayor if you are working from this list.

My guess is Sotomayor because she is younger, has longer combined service on two levels of the judiciary, and most importantly, because picking her kills two birds (minority and female) with one stone.
7.8.2008 3:38am
DJR:
Agree with Blue Jay. Kerr was on a roll last night.

What I don't see discussed here is which nominee would effectively move the Court to the left.

Recent books on the Court (Rosen, Greenburg, Toobin) indicate that what matters is not the ideological purity of a Justice, but his or her ability to work with those who disagree. A "liberal icon" like Thurgood Marshall who writes lone dissents is less useful than a Justice who can get four or more other Justices to sign on to his or her opinions. Replacing Ginsburg with a more "liberal" Justice who is also charismatic enough to sway Kennedy a bit more often would be better than an ideologue who will push him rightward.

Is there any possibility that Roberts or Alito will "mature" on the Supreme Court?
7.8.2008 8:30am
edh (mail):
I doubt Patrick can wait that long to flee the state of Massachusetts. If he is nominated, it will be from a post inside the administration.

It's that Patrick record and Hillary's dead-ender supporters that convince me McCain actually has a chance in Massachusetts.
7.8.2008 9:22am
SDProsecutor:
In light of Orin's comment, I guess I'll have to stop correcting people who confuse Obama's brief stint as a lecturer with being a "professor". That's a strong (if surprising) endorsement of a characterization I had, until now, found laughable.
7.8.2008 9:32am
Cactus Jack:
No, this is all wrong. The correct answer is that there are no legal minds in america sufficiently liberal and/or socialist for Obama's judiciary. Instead, all of his appointees will be Cuban apparatchiks or French.
7.8.2008 9:39am
Thief (mail) (www):
The last two "politician" SCOTUS Justices were Earl Warren (governor of CA), and Sandra Day O'Connor (AZ state senator).

Yeah.
7.8.2008 9:50am
emsl (mail):
I must disagree with Cornellian. As a former Massachusetts resident, I tend to agree that Patrick has been underwhelming at best and has also not really demonstrated the quality of thinking necessary. Nonetheless, I think that the Supreme Court benefits by having different perspectives. The current trend of only nominating lower court judges, in my view, is unfortunate. I think it would be great to have a former politician or even -- dare I say it? -- an actual practicing lawyer go onto the court. As a conservative, I would tend to favor someone like Sen. Hatch, but even the junior senator from NY would bring a whole new viewpoint to the Court. The Massachusetts Supreme Judicial Court has never been stronger and the Chief Justice was the GC for Harvard before her appointment.
7.8.2008 10:07am
Just Dropping By (mail):
Is there a ban on the use of the word "gambling" in these comments?

I believe the forbidden word is "c@sino".
7.8.2008 10:08am
jackson:
Deval Patrick filed a brief in Taxman v. Piscataway that would generate signifcant opposition. I imagine there are other issues from his tenure as head of the Civil Rights Division, a position that invites controversy.
7.8.2008 10:18am
Paul A'Barge (mail):
This is the only issue that is going to keep me from voting a straight Democrat ticket in November. I've already written every one of my Republican elected representatives, including US Senators to tell them that on Election Day if the price of diesel is over $2.50, in protest I am going to pull the Democrat Lever.

However, the thought of any of these mutts being plopped onto the USSC just chills me to the bone.

One word to Republicans in the US Senate... filibuster.

Let me see some balls and maybe I'll return to the party in the future. But if Republican Senators don't go down with a fight over President Obama's USSC nominations, I'll make plans to spend eternity in the wilderness.
7.8.2008 10:28am
Bob from Ohio (mail):
It's not going to be Patrick. He is too similar to Obama and is the only name on the list that will guarantee GOP opposition.

By the way, only a law professor could think that it matters if Ginsburg is a "moderate" liberal, somehow different from "liberal" liberals. Her tone may be moderate but can you identify a significant social issue where she has ever voted the "conservative" way?
7.8.2008 10:28am
A.S.:
I think the list, and Orin's pick of Patrick, suffer from inadequate consideration of one factor: judicial experience. Patrick has no judicial experience. I think that disqualifies him, for the most part - not technically, of course (who was the last Justice to have no judicial experience at all? Warren?) - but it just gives the Republicans a very easy pretext to filibuster.

Now, if President Obama were to appoint Patrick to the Court of Appeals for a few years - like Roberts - he would have a much better chance. But it seems to me that judicial experience has been a sine quo non for Supreme Court nominees for quite a while now and Orin and others underestimate the problems that having no judicial experience would bring to the confirmation process.
7.8.2008 10:59am
Clara999 (mail):
I read somewhere that Obama might appoint Artur Davis, a Harvard law graduate (summa cum laude) who is a young Alabama Congressman.
7.8.2008 11:12am
Poncherello:
A. Davis is quite accomplished, but was a cum laude graduate, not summa, from HLS. There are only about three or four summa graduates from HLS that are younger than 50, and I think almost all of them clerked for Scalia.
7.8.2008 11:18am
One Man's View:
You've all missed the obvious choice -- rumor is he promised a slot to Hillary Clinton.
7.8.2008 11:34am
josh:
Prof Kerr:

No discussion about Sunstein? What are your thoughts on that possibility?

"My expectation is that any Obama nominees would be significantly more liberal than the Justices they are likely to replace."

Sunstein can't possibly fall into that category!
7.8.2008 11:35am
Hauk:
who was the last Justice to have no judicial experience at all? Warren?

Depends what you consider "judicial experience." If you don't count clerking (and I'm guessing you don't, since Patrick clerked for Reinhardt), then Rehnquist. And as for Justices who served between the end of Warren's tenure and Rehnquist's tenure, add White, Powell, Douglas, and Black (and maybe I'm missing some). So there's a long--if not a recent, i.e., last 20 years or so--history of Justices who haven't had prior experience as a judge.
7.8.2008 11:41am
Tom in GA:
Bob from Ohio said: By the way, only a law professor could think that it matters if Ginsburg is a "moderate" liberal, somehow different from "liberal" liberals. Her tone may be moderate but can you identify a significant social issue where she has ever voted the "conservative" way?

I think Orin's distinction is compelling. If you're driving a car and I say we're going left ahead, there's a difference in making a left turn and veering left at a fork.
7.8.2008 11:50am
Hauk:
Ummm... last 35 years or so... oops. In that time, though--since the joint appointments of Rehnquist and Powell in 1972--only ten Justices have been appointed (of course, all have had prior judicial experience, so there's an argument that it's now an unwritten rule).
7.8.2008 11:50am
MartyA:
Hey, we didn't elect Saint Hussein to be old school! The process you've described is far, far too rational. We must have change!
Perhaps, the Republican senators will influence Obama but only if you trust jerks like Spector.
Pick a list of the ten most outrageous, flaming neocommunist
extremists, many without judicial experience (we want "change," remember?) and you'd be closer. In the political spectrum, cluster around Noam Chomsky.
Obama was an organizer/political machine hack. Look in those ranks for judicial appointees. Think blacks with Ivy League or left wing school (U of Wisc. at Madison, Berkeley) law degrees.
7.8.2008 11:52am
Tyrone Slothrop (mail) (www):
I wouldn't be surprised if Supreme Court Justice is a dream job of Obama.

A guy who chose to be a community organizer rather than a BIGLAW associate, and a guy who chose to teach one class a year and work at a civil-rights firm rather than be a full-time law professor? I don't think so.
7.8.2008 11:58am
Fat Man (mail):

Patrick ... has the potential to become a real liberal lion in the Justice Marshall mold


Does that mean Patrick would nap while his clerks wrote his opinions?

If this is serious, we are in worse trouble than I thought we were. Patrick is an incompetent ninny, not a future light of the law.
7.8.2008 12:07pm
some sense:
If it were a choice between...say...Cass Sunstein and Beyonce, I'd take Beyonce every time.
We need a hot Supreme far more than we need a 1st amendment-trashing bozo.
7.8.2008 12:14pm
uchicago student:
If Judge Wood doesn't turn in our civpro grades soon, her students might lead the charge against her nomination.
7.8.2008 12:16pm
Brett:
Seems to me that John McCain could do worse than to promulgate that list of cranks as a campaign commercial. "Ready for President Obama's Supreme Court nominees?"
7.8.2008 12:45pm
Lakee:
Ann Claire Williams
7.8.2008 1:08pm
Kevin O'Brien (mail) (www):
Can't find a good name: Is there a ban on the word "gambling"...?


Well, it didn't work for me! Hence the circumlocution. I also changed another word that begins with "c" and is a place the above happens, to "vegas" interests.

Another question about Patrick is this: given his acquisitiveness and almost-comical taste for luxuries, would he give up electoral politics, where men with his ethical bent become millionaires many times over, for the bench, where men with his ethical bent either bend back or wind up in Club Fed? (OK, Alcee Hastings wound up in Congress, but he's a one-off exception, isn't he? There aren't enough bribe-taking judges to make a statistically valid analysis. Not that get caught, anyway -- maybe that'd be Deval's plan, not to get caught).
7.8.2008 1:36pm
stuckinMass:
OMG heaven help us if its Deville. When you are elected in the liberal bastion of MA and you p!ss off your own party and cant accomplish anything the SC isnt your option its a Secretary job.

Not only will that be and issue, but his love pardons will nail him. There is not a murderer/rapist he doesnt love. Or his dealings with prisoners at SuperMax.

http://www.hoover.org/publications/policyreview/3574622.html
7.8.2008 1:54pm
Ex parte McCardle:
I came late to this discussion, but I was pleased to see Leah Ward Sears on the list. As a former clerk at the Georgia Supreme Court (though for a different justice), I'll add my opinion that Leah Ward Sears is a great judge, fearsomely smart and one of the most delightful people one could ever know, not that that necessarily counts for anything in the SCOTUS nomination sweepstakes.
7.8.2008 1:55pm
David M. Nieporent (www):
Deval Patrick's role in the Taxman case would, I think (and hope!), make him completely unconfirmable.
7.8.2008 2:02pm
krs:
OMG heaven help us if its Deville.

Once the whole thing with the 101 Dalmations came to light, I think Deville's chances of being nominated dropped to zero.
7.8.2008 4:02pm
krs:
Dalmatians, sorry.
7.8.2008 4:03pm
OrinKerr:
Bob From Ohio writes:
By the way, only a law professor could think that it matters if Ginsburg is a "moderate" liberal, somehow different from "liberal" liberals. Her tone may be moderate but can you identify a significant social issue where she has ever voted the "conservative" way?
Sure, that's easy. How about Ayotte v. Planned Parenthood of Northern New England? Or Washington v. Glucksberg?

More broadly, it's interesting how many of the comments take the form of "I don't like candidate X's views on issue Y, so s/he could not be confirmed." The Senate confirms judges, not blog commenters.
7.8.2008 5:24pm
On Judges:
The first pick will almost certainly be a woman. There's only one woman on the court for goodness sake.

That leaves: Diane Wood, Elena Kagan, Teresa Wynn Roseborough, Leah Ward Sears, and Sonia Sotomayor. This may be boring, but I think the convential wisdom is right. Sotomayor is as close to a sure-bet as these things can go. Still, here are what I see as the pros/cons of each.

Roseborough does not *yet* have the experience. While very smart and very connected, she'll likely be nominated to the 11th Circuit in Atlanta or the DC Circuit before being nominated to SCOTUS.

Chief Justice Sears is a compelling choice. She's brilliant and, because she has twice been elected in Georgia with over two-thirds of the vote, it's hard to claim she's too liberal. She's photogenic and, because of her campaigns, she's been thoroughly vetted and is ready for primetime. I personally doubt, however, that Pres. Obama would pick an black person as his first pick. Mainstream black politicians walk a racial tight rope when it comes to alienating white voters, and such a nomination would be bold for that reason.

I think Kagan is pretty confirmable, because she's been so even-handed ideologically as dean. Her youth is also a plus. I'm not sure what kept the Senate from acting on her nomination to the D.C. Circuit. in 1999. I think she's in the top 3.

Wood and Sotomayor are the front-runners. Both are excellent jurists. Wood's big pluses: she's brilliant; she's teaches at the same school Obama did; she's widely respected on the left and the right. Her biggest knock: she's already 58, and maybe 60 by the time the next vacancy rolls around.

Sotomayor's big pluses: she has great academic cred (summa cum laude! from Princeton before heading to YLS); she has tremendous experience both as a district court judge and appellate judge; and she would be a historic pick, as the first Hispanic person ever on the bench. Also, she's very very confirmable by virtue of: being a former prosector; originally being nominated by Bush 41; and having a made-for-TV life story. Her knocks? I can think of none. That's why I suspect she's the likely choice.
7.8.2008 6:13pm
LM (mail):
Brett,

Seems to me that John McCain could do worse than to promulgate that list of cranks as a campaign commercial. "Ready for President Obama's Supreme Court nominees?"

Another conservative with his finger on the populist pulse.
7.8.2008 6:52pm
Jay (mail):
I love how all the Republicans think that future president Obama should elect moderate justices that don't move the court to the left too much. Of course, this would be modeled on the approach that Bush took in electing Alito and Roberts. Yeah right! Wake up people! Roberts and Alito are to Democrats what Warren and Brennan are to Republicans. Did that come into play in Bush's decision making process? Of course not. His only concern was electing judges who agree with him. I say President Obama do the same thing and elect judges without any Republican input. Then when they try to filibuster, pull out the ole nuclear option from the Republican playbook.
7.8.2008 7:01pm
ronnie dobbs (mail):
Deval Patrick makes Harriet Miers look like Louis Brandeis.
7.9.2008 12:04am
Matt Caplan (mail):
What about Harold Koh?

The New York Times has floated his name, but David Bernstein here at VC seems to think he's too partisan.
7.9.2008 5:03am
Volokh Groupie:
@Jay

What's the matter...is kos down momentarily?

First, the 'nuclear option' was actually never used (remember that gang of 14 that McCain was actually a part of?) and secondly if you truly think that Alito and Roberts are 'movement conservatives' who are the equivalent of Brennan and Warren then you better hope you have a money back warranty for that poor education you got at law school.

I'd ask you to cite any evidence that Alito and Roberts are similiar to the two liberal lions you named (I'm talking opinions here)but I seriously doubt you have the intellectual clout to provide anything.

Pragmatically, if Obama does win it still seems likely that he'll probably not have enough votes to avoid judicial filibusters (which I'm guessing are now fair game for everyone). If he foolishly does take the advice of naive partisans like you--then he might get a judge or two confirmed but there would be a couple hitches:
First, any narrative that he's a uniter and the president of all people would be flushed down the drain (though i understand his opponents will already challenge that picture) because of the fact he has used an unprecedented procedural tool for ideological reasons (This doesn't even begin to take into account the fact that a elongated fight over this would probably be messy for both sides and that the damage done w/regards to working with political opponents might be irreparable). Second, you discount the fact that the majority democrats have built in the senate is on the backs of moderate/conservative democrats being elected in traditionally red states. The idea that senators like Tester and Webb could go back to their constituents after aiding such a feat is laughable--more than likely you'll just see another brokered compromise.

Either way, Bush's playbook ended up revolving around who he could nominate who would actually get through--the bi partisan support roberts had was pretty significant..and we all know who alito succeeded in terms of scotus nominees. I'm sure that Obama will keep in mind confirmability during any potential hypothetical nominations. And while I'm sure you probably actually didn't even read the thread--many commentators actually suggest that Obama will nominate a liberal and don't expect him not to--the type of liberal and the slate of realistic candidates possible is what's being discussed.

@Orin

What's the likelyhood that Obama nominates a colleague (senator) in a multiple vacancy scenario--confirmability would be all but assured, he'd have a reliable liberal (depending on who he nominated), and there are some interesting choices in my view. HRC is an obvious one and if Obama wanted to play the demographics game he has two potential hispanic candidates as well in Menendez and Salazar (who has the added benefit of a great story and experience as a state AG). I don't know much about Salazar's judicial views, but his somewhat moderate reputation may make him the perfect/confirmable replacement for Justice Kennedy or one of the conservatives.
7.9.2008 11:59am
Hauk:
Anybody else think it's hilarious that "Volokh Groupie" expresses doubt about Jay's "intellectual clout" and then misspells "likelihood"? While I don't disagree with VG's response to Jay, it's pretty embarrassing to try to insult someone's intelligence and then call your own into question just a couple of lines later.

Agreed, though, that there's no way Obama's intentionally nominating a Brennan or Marshall to the Court, for the reasons VG listed: the difficulty confirming someone in that mold would pose, in terms of both Senate composition and narrative--how do you sell yourself as a bipartisan messiah if your Court nominees are hard-left liberals? If it ever happens, it'll be in his (hypothetical) second term, when he doesn't have to worry about re-election.
7.9.2008 12:58pm
SukieTawdry (mail):
But, do these people have heart, do they have empathy? Do they know what it's like to be a young, teenage mom, disabled, gay, old, poor, black? Because, you know, that's the criteria by which Obama will be selecting his judges. I can think of no better reason to vote for McCain.
7.9.2008 1:32pm
Volokh Groupie:
Damn it Hauk...you're right...the misspelling of a word in a 150 word comment/rant obviously suggests my intelligence needs to be questioned in the same vein as the challenge I put to the previous poster---I so obviously was dwelling in the condescending realm of precise blog grammar/spelling as opposed to the substantive issue he brought up.

Rest assured I'll have an eagle eye out for the intellectual sin of misspelling/incorrect punctuation in a blog post next time out.
7.9.2008 3:01pm
Hauk:
Volokh Groupie:

My point was only that if you're going to try to insult someone's intelligence, it's pretty amusing for you to then display your own intellectual failings in the same post. You'll note that I didn't criticize your punctuation (as you suggest) because I understand that comments are written off-the-cuff. Blatant misspellings are, however, less excusable given the context.
7.9.2008 5:36pm