Supreme Court Candidates

Good evening. Many of the articles I read today had to do with Justice Steven's long history on the Court. When nominated by President Ford decades ago, he was considered a centrist. He was approved by the Senate in less then 3 weeks. He did not, I think, move to the left. Rather, the court has moved significantly to the right.
I was surprised to hear audio of him explaining a decision. I did not know that that was publicly available.
He was very successful for many years in forging a middle ground on the court, up through reversing some of Bush 2's actions. But that talent has been, perhaps, marginalized in the last term or two of the court.
I suspect that some of yall can do a much better job than I can in talking of his legacy.

Well, I am not knowledgeable enough to offer many opinions. But I am willing to read along and see what is offered here. It will be tough to get approval of anybody Obama selects. I hope he does not compromise overmuch in hope of avoiding a too brutal process.

Kagan could shift even more power to the right. Moreover, she might not even approach the liberalism of Stevens.


Can Elena Kagan Fill Stevens' Seat?

It's been fewer than 24 hours since Supreme Court Justice John Paul Stevens confirmed that he would be stepping down this summer, but speculation is already rampant about who will be next in line to take his place. Among the names being floated, one of the main front-runners is Elena Kagan, a former Harvard Law School dean and the first woman ever appointed to the position of solicitor general. At Salon, Glenn Greenwald argues that Kagan is especially attractive to the administration because she's already proven herself a "steadfast Obama loyalist," is known for "accommodating and incorporating conservative views," and isn't especially cozy with the left. In short, she's exactly the kind of centrist nominee whom the administration is looking for. The problem with this, Greenwald argues, is that Kagan would be taking the seat of the court's "liberal stalwart" and could "shift the Court substantially to the Right on a litany of key issues." Citing The Nation's Ari Melber, Greenwald says that in light of how liberal Stevens is, "it will take a nominee like Harold Koh just to maintain the Court's status quo." While Kagan falls to the left on a number of social issues (she's pro-choice and pro-gay), Greenwald worries that her stances on executive power and civil liberties are more in line with those of Bush nominees. But let's not get ahead of ourselves: At Above the Law, Elie Mystal addresses one obstacle that could prevent Kagan from making it to the bench in the first place"her religion. Kagan is Jewish, and if she were appointed, the court would consist of three Jews and six Catholics. As Nina Totenberg points out, this would mean that there are no "Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all of the justices were Protestant." At Fox News, Lee Ross describes Kagan as an "unknown entity" due to her lack of judicial experience. This, however, could also be spun as a good or bad thing. Having never sat on a bench, Ross says, Kagan has a "thin paper trail of past positions."

-- Slate.com

Helluva commentary on politics when it's a virtue to have "thin paper trail of past positions."

That is life in the big city, and in facing the Rep morons in the Senate.

We certainly wouldn't want the Republicans to know anything about the nominee, now do we?

The White House indicates that there are about 10 candidates on the list. Some of them were considered, and hence vetted, prior to the nomination of Sotomayor.
Pundits (and pundits are often wrong) consider the short list to consist of:
Diane Wood (age 59) - a federal appeals court judge;
Elena Kagan (49) - Solicitor General;
and
Merrick Garland (57) - federal appeals court judge.

Using Stevens as a standard, none of those 3 comes close to his level of liberalism. That would disappoint the left-end of the Dem party.

Wood is probably the most liberal. She went through a rather bruising confirmation process for her current job. She has had a lot of jobs, giving anyone who chooses to oppose her plenty of ammo. She and President Obama also taught law school in Chicago at the same time. That could raise rumblings regarding cronyism, a familiar charge against him. She is the only Protestant among the 3. That was kind of what got me to revive this thread prior to the official announcement of Stevens' intention to retire. He is the only Protestant on the Court in a country where must folks who follow a religion would probably describe themselves as Protestant.
Kagan, of the 3, is probably in the middle, although her pro-abortion and pro-gay stances as well as her former position as dean of the Harvard Law School would upset many conservatives. While there she was responsible for banning military recruiters from Harvard because of the opposition of the faculty to "Don't ask, don't tell." Despite her current job she is considered by many to have a short resume outside of academia.
Garland is perhaps the most moderate and most acceptable to the Repubs. He has strong support from Sen Orrin Hatch (R). He could probably win confirmation fairly easily. He, like Kagan, is Jewish. So that issue, if it is an issue, could come up again.

Initially, the scenario I envisioned was that Mr Obama would nominate someone who (after the blustering and posturing that typically occurs during confirmation hearings) would be confirmed without it interfering with the Nov elections. A more controversial nominee would follow if Justice Ginsburg retires after the election.
I think I am now leaning to him to go ahead and nominate a more liberal candidate (although not, of course as liberal as Stevens) this time. It is clear that the Dems will lose -by my count, right now- 5 Senate seats come Nov. The numbers work against him after Nov.
I also think that the Dems could spin the Repubs as the party of "No" if they resort to some sort of filibustering ahead of the Nov elections.

One left over note I couldn't work in. This will show up regardless of who the nominee is: the Repubs argue that there should be no "activists" on the Supreme Court who decide cases on "a preferred result" as opposed to a strict "interpretation of the law/Constitution." In practice, the only "activists" are liberal Dems.

I am predicting a nomination on Thursday, April 29th, and it not be one of the big 3.

I'd like to take a quick time out from discussing the nomination process to ask a speculative question. We probably agree Obama would never nominate any card-carrying liberal -- like former justices Douglas, Brennan, and Blackmun -- even if he wanted to, which he doesn't. But if he did want to, where would he look for jurists to nominate? If there are any Douglas-like justices on the Federal appeals courts, I couldn't name one. Can any of you? If not, where would a Democratic president look for liberal appointees? The State courts? Academia? Law firms? Can anyone name individuals from these corners of the legal job market? I'm trying, but I'm coming up blank here.

Whomever his candidate is going to be it's most likely someone with inside connections but little name recognition (general public speaking). Most likely someone from the United States Court of Appeals for the Federal Circuit.

The best answer off the top of my head, Thomas, would be Harold Koh. He got appointed to the position of legal adviser to the State Dept in mid-2009 after a long, long time on a Republican "hold" list.
Prior to that he was dean of the Yale Law School and before that held minor positions in the Bush and Clinton administrations.
I have seen nothing about his beliefs on the usual hot-button social issues. Where he runs into trouble as being too radical is because of his belief in "trans-nationalism." As I understand it, he believes that the U.S. should be subject to international law in a number of areas. That will not sit well, of course, with many.
I think that any nominee from academia may be at a disadvantage to someone with a judicial background.
Was that that the question?
Thanks for playing, Thomas.


(Correction: I wrote that Diane Wood faced really stiff opposition to her nomination to an appeals court. Wrong. It was Elena Kagan who was appointed to the position of Solicitor General despite a lot of "no" votes.)

The problem with Koh is that he has no judicial experience. This would be hard to overcome.

Neither did Earl Warren -- arguably the most influential Chief Justice of the 20th century.

I totally agree, Advocate. I can't see a nominee coming from a law firm or being from academia with no judicial experience. Particularly from some elite law school like Yale or Harvard, bastions of liberalism.
That suggests to me, Thomas, that the candidate will come from the relatively large but largely unknown pool of current judges on various courts. It will turn out to be someone most of us have never heard of.

Are you sure you mean the federal circuit? No justice has ever come from there.

I don't know of any off the top of my head either, but then that's not something I really pay attention to. The only time these superstars of the federal judiciary are mentioned is in connection with possible supreme court nominations, so if you're hearing about someone now, you're hearing it for the first time along with a lot of other people.

The ninth circuit (California and much of the west) is frequently identified as a bastion of liberal jurisprudence. I would imagine that the first circuit (New England) also has a liberal orientation, but that's something of a judicial backwater in terms of reputation. I'm sure there are liberal jurists on every circuit, even the fourth (reputed to be the most conservative), but they just don't get a whole lot of attention. It's not like they're busy putting monuments to the ten commandments in their courthouse rotundas.

The state courts probably have some excellent candidates, but the last justice to be picked from the ranks of the state courts was Sandra Day O'Connor. Nowadays, the federal circuit courts are akin to the AAA minor leagues -- if you're looking for rookie talent, you don't promote somebody directly from the A leagues.

Stevens isn't a liberal. Stevens is a Stevensonian. He has always marched to the beat of his own drummer. Earlier in his career he was famous for his solitary opinions, where he expressed views of cases that no other justice shared. He really was difficult to categorize, except perhaps as "quirky." Later on, though, as he began to wield the authority of being the senior justice, he became more intent on forming viable coalitions rather than on giving vent to his idiosyncratic judicial philosophy.


Well duh!

I have been reading a bunch about Stevens during his tenure on the Supreme Court. I don't pretend to fully comprehend the nuances of his opinions over the 3 decades he has served where sometimes he heard the beat of a drummer that few or none of his colleagues marched to.
One point I have seen repeated often was about how he had an ability to build consensus. Again, I am not smart enough about Court history to be able to cite examples.
As to the "liberal" label. I think that someone like Nina Totenberg of NPR intends that to mean that, with recent appointments, the Court has moved to the right. That leaves the centrist that President Ford appointed now appearing to be on the left.
Left = Liberal? Probably not.
I'll be quiet, now.
Thanks, yall, for participating. I am eager to learn more.

Here is the take of the top lib think tank regarding the leading candidates and the threatened filibuster by the Reps.

********
THE SHORTLIST: Three candidates are rumored to sit atop Obama's shortlist to replace Stevens. "Solicitor General Elena Kagan, whom Obama appointed as the first woman to hold the post; Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit in Chicago and Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit." Kagan, who some have argued is far more conservative than Stevens and could shift the political dynamic of the high court, is rapidly emerging as a frontrunner. Before becoming the first female Solicitor General in the nation's history, Kagan, 49, served as dean of Harvard Law School, where she showed an ability to build consensus and was widely credited with bringing more diverse views to the school. "As a result, when Kagan appeared last year before the Senate Judiciary Committee for her confirmation hearing as solicitor general, two conservative law professors from Harvard were on hand to support her, including Jack Goldsmith, who has been assailed in liberal circles as an architect of the Bush administration's anti-terrorism legal strategy." Some liberals have also expressed concern that she is too moderate in her views. Diane Wood is 59 and has been a federal appeals judge "since Clinton tapped her in 1995 after she served in the Justice Department for three years." Wood's writings and opinions show that she believes in a federal constitutional right to same-sex marriage, is markedly a supporter of abortion rights, and would like to see the phrase "under God" removed from the Pledge of Allegiance. Merrick Garland, 57, was an assistant federal prosecutor who handled a drug investigation into then-D.C. mayor Marion Barry before helping run the criminal division at the Department of Justice and serving as the principal associate deputy attorney general. "From his new perch, he oversaw the prosecution of Unabomber Theodore Kaczynski and the cases coming out of the anti-government movement at Ruby Ridge, Idaho." In 1997, President Clinton nominated Garland to the "U.S. Court of Appeals for the District of Columbia Circuit, considered the nation's most crucial court behind the Supreme Court." "At the outset, Garland may have the easiest path to confirmation. He is considered a judicial moderate. On the appeals court, he largely handles regulatory and national security cases, thus avoiding others involving controversial social issues," the Los Angeles Times concludes.

GOP PREPARED TO FILIBUSTER: "The retirement of Justice John Paul Stevens presents a test for Republicans as much as it does for Obama as they weigh how much they want to wage a high-profile battle over ideological issues in the months before crucial midterm elections," the New York Times observes. Indeed, the party was split in its reaction to Stevens' announcement, promising to filibuster any "ideological" nominee while also pledging to give every candidate a fair hearing. Senate Judiciary Committee members Jeff Sessions (R-AL) and Jon Kyl (R-AZ) said they would use the filibuster should Obama nominate someone they view to be outside the mainstream. Sessions even released a statement suggesting that he could make opposition to health reform a litmus test for an Obama nominee, even though the constitutional case against the Affordable Care Act is so weak that even ultra-conservative Justice Antonin Scalia rejects it. Sen. Lamar Alexander (R-TN) promised to filibuster "if the president picks someone from the fringe or someone who applies their feelings instead of applying the law." Meanwhile, Sen. John Cornyn (R-TX), another member of the Judiciary Committee, said, "We need to do our due diligence, and we need to probably bend over backwards both in appearance and in reality to give the nominee a fair process." On ABC's This Week, conservative columnist George Will criticized conservatives for saying that they want judges who will strictly follow the law while simultaneously cheering decisions that overturn the work of elected officials. Conservatives "say they're against judicial activism. By which they mean they want the court to defer to the elected political branches of government. But if you look at what's happened recently, the decision that most outraged conservatives was the Kelo decision on eminent domain. ... The court did defer to the city government in Connecticut and it enraged conservatives. The recent decision that most pleased conservatives -- Citizens United, overturning part of McCain-Feingold -- was the court not deferring to the Senate," Will said. Meanwhile, Sen. Chuck Schumer (D-NY) also a member of the Judiciary Committee, said that Obama in all his appointments has nominated "people in the mainstream," and predicted that the "likelihood of a filibuster is tiny." "One of the most important qualities for the new justice is the ability to win over Justice Kennedy," Schumer said. In other words, he added, "somebody who's going to be one of the five and not one of the four."

-- americanprogressaction.org

The conservative majority on the court is playing into the hands of Obama. Also, could Scalia be the next to retire.


Scalia's Retirement Party
Looking ahead to a conservative vacancy can help the Democrats at the polls.
By Richard L. Hasen
Posted Monday, April 12, 2010, at 3:55 PM ET
Headlines blare that a battle looms over the nomination of a replacement for Supreme Court Justice John Paul Stevens--a battle, likely to get ugly, in which Republicans have not ruled out a filibuster. Don't believe it. Insiders like Tom Goldstein and Nina Totenberg expect no real battle, barring some unforeseen revelation about President Obama's nominee.

Obama is using the Supreme Court to position himself for re-election in 2012 not with the Justice Kagan-Wood-Garland choice of 2010 but by raising the specter of the retirement of 76-year-old Justice Antonin Scalia after the 2012 presidential election. The court's recent Citizens United decision, striking down limits on corporate election spending, has been deeply unpopular, providing an opening for him to run against the increasingly conservative Court. It wouldn't hurt the president if the court soon decided a few more 5-4 unpopular decisions, so that the stakes of a conservative Justice retirement are ever clearer to Obama's supporters on the left.

-- Slate

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