Let the Speculation Begin:

Is there going to be a Supreme Court opening this summer? Justice Ginsburg poured kerosene on the embers of speculation in a recent speech. The AP reports:

Justice Ruth Bader Ginsburg told law students there could be an opening on the Supreme Court soon but didn't hint at who might be leaving.

Ginsburg spoke Friday at New England Law's annual "Law Day."

In a question-and-answer session, she said the nine justices only take pictures together when a new member is added. She said: "We haven't had any of those for some time, but surely we will soon."

J. Aldridge:
She seemed to be speculating as everyone else does every year. Hardly news anymore.
3.14.2009 12:01pm
Sasha Volokh (mail) (www):
Not "for some time"??? How about, maybe, those two new additions just a bit over three years ago?
3.14.2009 12:05pm
Volokh Groupie:
Justice Reinhardt?

Should be an interesting summer.

Though, whoever the nominee is better make sure they don't screw up their taxes right now.
3.14.2009 12:13pm
catullus:
Justice Reinhardt sounds ok to me. He will turn 78 this month, so actuarially speaking, we won't have to endure him nearly as long as we would, say, Deval Patrick.
3.14.2009 12:35pm
jweir48:
Justice Ginsberg has pancreatic cancer, which has a survival rate of about 5%. I suspect she is talking about herself.
3.14.2009 1:00pm
MartyA:
I believe Ginsberg's replacement has already been selected. It will be Arlen Specter. It's payback for Specter's support for the massive spending bill and anything else Obama (Emanuel) might demand between now and then.
Weigh the pros and cons. PA Governor Rendell, a democrat will certainly appoint another loyal democrat to replace Specter, probably, a black from Philadelphia, which, in turn, will lessen the pressure to keep Burris. Specter will vote almost as liberally as Justice Ginsberg has. And, Obama will almost certainly have to fill the same spot later in this administration because Specter's health isn't much better than Ginsberg's.
3.14.2009 2:28pm
Cornellian (mail):
I wouldn't want to see Reinhardt on the Supreme Court, but seeing him nominated might almost be worth it for the opportunity to ask Senate Republicans whether they still consider it unconstitutional to filibuster judicial nominees.
3.14.2009 2:46pm
Edward A. Hoffman (mail):
Don't all nine justices pose together for an official portrait at the start of each term?

Also, the reason the overall survival rate for pancreatic cancer is quite low is that it is usually in an advanced stage by the time it is diagnosed. That's because its early symptoms are hard to distinguish from those of other, more common conditions. Doctors generally recognize it for what it is only when the patient becomes jaundiced, but by then it is almost always too late.

Justice Ginsburg's cancer was found very early -- so early, in fact, that she didn't have any symptoms at all. The tumor turned up in a scheduled physical exam, which may have been more attuned to such things because of her prior bout of cancer. Her doctors said her prognosis is quite good.

Just a few months ago, Ginsburg told an audience at Columbia Law School that she intended to stay on the Court for several more years. She didn't yet know she was sick, but I don't think she would change her mind so quickly unless her condition were more serious than has been reported.
3.14.2009 3:46pm
Dave N (mail):
MartyA,

You assume that Arlen Specter, age 79, would agree. Given his age, I doubt your scenario.
3.14.2009 3:53pm
Chico's Bail Bonds (mail):
Bill Clinton to replace Clarence Thomas!
3.14.2009 4:28pm
trad and anon (mail):
I wouldn't want to see Reinhardt on the Supreme Court, but seeing him nominated might almost be worth it for the opportunity to ask Senate Republicans whether they still consider it unconstitutional to filibuster judicial nominees.
No matter who Obama nominates, I think it would also be great to see if Robert Byrd still considers the nuclear option an attack on free speech.
3.14.2009 4:53pm
Oren:
I'm giving 3:2 odds in favor of Sotomayor (better if replacing RBG). Maybe David Tatel has an outside change.
3.14.2009 5:17pm
RPT (mail):
I like MartyA's proposal.
3.14.2009 5:18pm
Sarcastro (www):
Yeah, playing musical chairs in the Senate is much more important than a Supreme Court pick!
3.14.2009 5:28pm
luagha:
Obama will be looking for someone as young and ideological as himself, to ensure as much possible time on the bench as possible. No way he'd put anyone over 70 there.
3.14.2009 6:28pm
David M. Nieporent (www):
Obama's first pick will be a woman. Period. I can't see any way, politically, he can make another choice.

And I thought we all agreed that Kagan would now be at the top of the short list.
3.14.2009 6:33pm
Jay:
DMN--Right, but for a vacancy this summer? She'd only have been SG for like 3 months.
3.14.2009 7:03pm
paul lukasiak (mail):
so whose the first (and the last, in Obama's term) to go.

I say stevens is gone at the end of this session...with Souter leaving if Ginsberg is healthy next year, and waiting another year if she's not healthy.

I also think that Kennedy will leave before Obama is out of office -- he's a centrist who (philosophically) despises the courts right wing (although he does vote with them at times), and may want to ensure that his seat doesn't go to another wingnut like Scalia or Alito.
3.14.2009 9:01pm
Oren:

And I thought we all agreed that Kagan would now be at the top of the short list.

I like Sotomayor over Kagan.
3.14.2009 9:15pm
Angus:
I would favor Kagan. Kagan is 48, Sotomayor is 54, which is on the almost-too-old boundary.
3.14.2009 11:09pm
MarkJ (mail):
"In a related story, Justice Ginsburg reported to breathless reporters, "After extensive consultations with Punxsutawney Phil, I can report that he's definitely seen his shadow. This therefore means I'll be staying on for another six years."
3.14.2009 11:56pm
ll (mail):

Dave N (mail): MartyA, You assume that Arlen Specter, age 79, would agree. Given his age, I doubt your scenario.


Given Spector's ego, and the trouble he might have getting reelected in 2010, I doubt your scenario (that Spector would not agree).
3.15.2009 12:02am
ll (mail):

In a question-and-answer session, she said the nine justices only take pictures together when a new member is added. She said: "We haven't had any of those for some time, but surely we will soon."


Either two years is "some time" or, perhaps, she is losing her mind.
3.15.2009 12:03am
Dave N (mail):
Paul Lukasiak,
I also think that Kennedy will leave before Obama is out of office -- he's a centrist who (philosophically) despises the courts right wing (although he does vote with them at times), and may want to ensure that his seat doesn't go to another wingnut like Scalia or Alito.
Projecting much?
3.15.2009 12:27am
TalkingHead:
It will be a woman nominee, e.g., Judge Sotomayor, but not Kagan, at least not at this point. I suspect the vacancy will be Ginsburg. Even if her prognosis is good, she would probably need time to recover and would want to spend time with her family.

My money is on Sotomayor: she is in the right age range; she is a circuit court judge (Clinton nominee) and previously a district court judge (G.H.W.Bush nominee); she boasts impressive paper credentials and a compelling personal story; she is likely to satisfy Obama's left ideological scrutiny; she would create a 2nd Circuit vacancy Obama could fill; and she would be a symbolic appointment as a woman and Latina, who republicans would have a hard time opposing at the visible Supreme Court confirmation level because Democrats will ably insinuate the opposition is because of her gender and race. Bush tried departing from the circuit court norm with Miers and got punished for it. Obama won't make the same mistake.
3.15.2009 12:38pm
BGates:
We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria[sic] by which I’m going to be selecting my judges.

I can think of a woman with the empathy to turn her back on corporate law to embrace the "helping professions", despite the tremendous financial hardship it imposed on her family and its need for riding lessons. She has just as much heart as Obama, impeccable educational credentials, and even better, she's black.

Her appointment would be met with accolades for Obama's courage in not letting baseless accusations of nepotism deter him from giving America Justice Michelle Obama.
3.15.2009 4:25pm
David M. Nieporent (www):
DMN--Right, but for a vacancy this summer? [Kagan]'d only have been SG for like 3 months.
Obviously the SG position is considered to be "grooming" her for a spot, and as such they'd probably like her to be there longer -- but (a) obviously there's no requirement that she spend a long time in the role, (b) with a heavily Democratic Senate, it's not like she's going to have trouble getting confirmed, and (c) there's no guarantee that he'll get two appointments, so I can't see him saving her for a later appointment.
3.15.2009 5:08pm
trad and anon (mail):
Obviously the SG position is considered to be "grooming" her for a spot, and as such they'd probably like her to be there longer -- but (a) obviously there's no requirement that she spend a long time in the role, (b) with a heavily Democratic Senate, it's not like she's going to have trouble getting confirmed, and (c) there's no guarantee that he'll get two appointments, so I can't see him saving her for a later appointment.
Ginsburg has cancer (for the second time!), and Stevens is getting on in years. Is either of them going to want to hang around for four years and risk Sarah Palin getting to appoint their successor? I think not.
3.15.2009 5:44pm
Bretzky (mail):
The only two justices I see voluntarily leaving the Court within a two-term Obama administration are Stevens and Ginsburg (Stevens first). I agree with those who have already said that, regardless of who leaves first (but especially if it's Ginsburg), Obama's first appointment will most likely be a woman. And also as others have previously stated, I don't see how it's anybody else but Sotomayor. Unless of course we get a Justice Clinton (no, not Bill).
3.15.2009 5:53pm
wuzzagrunt (mail):
Bretzky:

And also as others have previously stated, I don't see how it's anybody else but Sotomayor. Unless of course we get a Justice Clinton (no, not Bill).


Does Chelsea even have a law degree?
3.15.2009 8:57pm
Volokh Groupie:
From my friends who want a liberal appointee, many consider sotomayor too conservative, particularly on crim law issues.
3.15.2009 11:12pm

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