Kagan, Wood and Garland Still Top Supreme Court List

AP

Senior administration officials confirmed over the weekend that they are looking at a fluid list of about 10 people to replace Justice John Paul Stevens, but my guidance continues to be that the focus should remain on our top three: Elena Kagan (at right in the picture), Merrick Garland (at left) and Diane Wood (center).

It's important to keep in mind that some of the people are on the list as a courtesy or as a nod to one group or another and are not likely to be selected.

Of the top three, 49-year-old Kagan is seen as ably portraying the storyline the White House wants to see out of these hearings: That she can take on a conservative-dominated Supreme Court which President Obama says is out of touch with everyday Americans.

Kagan, as solicitor general, defended campaign finance reform laws in arguments in the Supreme Court last fall. The Court ruled against her, on a 5-4 vote, allowing corporations and unions to spend unlimited funds on political ads, with Stevens writing a scathing dissent. That ruling is what prompted Mr. Obama's shot at the justices in his January State of the Union address, and what he was referring to on Friday, when he said he would look for a nominee who was on the side of regular people.

Kagan also is widely viewed as being a strategic force on the Court, in light of her experience as dean of Harvard Law School, where she hired bright conservative law professors and brought faculty factions together.

Garland's narrative is that he left a high-paying partnership at a Washington law firm to serve as the public interest as a federal prosecutor. A Chicago native, he has wide support inside the beltway and is seen as the easiest confirmation.

Conservatives like Ed Whelan, of the Ethics and Public Policy Center, are saying he would be acceptable, and he is friends with Chief Justice John Roberts. But he is more moderate than some progressives would like, and he's a 57-year-old white guy -- and there have been calls for another woman or minority on the high court.

Wood perhaps best furthers the "outsider" storyline, as the only candidate who went to state schools. She's a graduate of the University of Texas and University of Texas Law School, and would be the only justice from outside the Ivy League.

She also has been a working mother. On the Chicago-based federal appeals court, she is highly regarded and has good relations with conservative intellectual superstars like Judges Richard Posner and Frank Easterbrook. But she has sat on some controversial abortion cases and is 59 --- and is seen as being the hardest to confirm of the three.

Last year's short list included Sonia Sotomayor, Kagan, Wood, Homeland Security Secretary Janet Napolitano and Michigan Gov. Jennifer Granholm. Mr. Obama interviewed the first four last spring after Justice David Souter retired.

Napolitano and Granholm are again under consideration, but sources say they are not likely candidates. Napolitano's comments that "the system worked" would give Republicans a chance to make these hearings about terrorism. Granholm is Canadian and is not widely popular in her home state.

The wires are moving a story now that includes federal appeals Court Judge Sidney Thomas, of Montana. I can confirm he is under consideration, and is appealing to some because he is a quintessential DC-outsider. He went to law school at the University of Montana and would further a populist storyline.

But fairly or not, he would be a disappointment to those inside the White House who want a "sure bet" --- a justice who has a track record as a sparkling intellectual who could go toe to toe with Roberts and Antonin Scalia.

Also reportedly on the short list is Former Georgia Supreme Court Justice Leah Ward Sears. I am not taking her as a serious candidate. She was fined in 2007 for violating state ethics laws for accepting improper campaign contributions. This White House is extremely sensitive --- in this political environment -- about giving Republicans anything they could make an issue out of. A nominee who was fined for ethics violations would be like shooting fish in a barrel for Republican Senators Jeff Sessions and Jon Kyl.

And finally, some other names that have been suggested as under consideration: Pam Karlan, a progressive Stanford Law School professor, and Harold Koh, former dean of Yale Law School and chief legal adviser in the state department.

But those two would almost certainly be filibustered -- they are very progressive and have taken controversial legal positions. And my sources in the administration have made clear that while the White House is ready to fight, it is not on a death march.

More Coverage of John Paul Stevens' Retirement:

Photo Gallery: Who Will Replace Justice Stevens?

Supreme Court Justice John Paul Stevens Retiring

Jan Crawford: Obama Wants No Fight Over Supreme Court Pick

The Fight for Stevens' Spot

Justice Stevens' Legacy: Fiercely Independent

Obama Praises John Paul Stevens, Seeks Nominee With Similar Qualities

Obama on Justice Stevens' Retirement

Photos: A Historical Look Back at Stevens

[an_ordinary_american]

It is interesting how the media only spouts support for the first amendment when it suits them. If she's a ******, she's a ******, who cares, and why should a supposedly reputable news source censor legitimate content about a public figure. Welcome to 1984.....

[OrangeCountyAndrew]

It was irresponsible of CBS News to allow a partisan conservative who has a history of committing plagiarism to publish a blog that spread malicious false rumors of one of the potential Supreme Court picks. Even if what he said about one of the potential nominees was true, it was besides the point and irrelevant to President Obama's criteria as to what he looks in a Supreme Court nominee.

To the fascist idiots at CBS News, I hope the person the irresponsible blogger was gossiping about sues your organization for libel and defamation.

[bishopberkeley]

Here's an unusual possibility, but I think it would be constitutional: might President Obama appoint HIMSELF to the Supreme Court? I know of nothing in the Constitution that would prohibit this, though it would clearly be without precedent. One could imagine that if a President who is passionate about the Constitution were approaching re-election in a weak condition, he or she might prefer to make the jump to the Court. (Much better job security, among other things; likely problems with confirmation, though.)

One other observation: women typically live longer than men (on average) by a number of years. Hence, other things being equal, there might come to be a preference for female Justices in coming years among both Republicans and Democrats.

I, for one, would be quite happy to see this happen!

[wheresmycountry]

Someone very liberal, and very young would be good. Conservative justices just want to take away our rights.

[larrryshrine]

Ohh, and now we've descended into name calling. That's easy to do in an anonymous post. Why don't you try and stick to the issue, and post a reasonable argument, or is your mind too small?

[EricTheRedVM]

To "wheresmycountry" - *Conservativates* take away rights? You have to be kidding me. Liberal activist judges have been twisting the words of the Constitution to take away our rights for decades. Next time you're in trouble with the gov't using the wrong lightbulb, using too much electricity, or making it too warm or too cold in your own home, thank a *liberal* justice. Next time you're forbidden from purchasing a certain automobile because of its emissions, thank a *liberal* justice. And next time you're arrested for some sort of "hate speech," thank a *liberal* justice.

And let me quote the article: "That ruling is what prompted Mr. Obama's shot at the justices in his January State of the Union address, and what he was referring to on Friday, when he said he would look for a nominee who was on the side of regular people."

Umm, Mr. Obama, the role of a judge is not to be "on the side of regular people," you class-warmongering Marxist. His/Her role is to accurately interpret the law. We don't need another Sotomayor on this court. The SCOTUS needs to get back to its strict constructionist foundations!

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The Jewish Republican's Web Sanctuary

[lakota2012]

With all the financial problems and lack of any financial reform so far, I'm still hopeful for Elizabeth Warren, chair of the Congressional Oversight Panel for TARP, and Harvard Law School professor teaching contract law, bankruptcy and commercial law -- not another Appellate Court Judge.

[williampeterprice]

The point is that it's best to have at least some discussion of who the best candidates for certain aspects of the job would be, rather than providing conclusory statements about who's in the lead.

Kagan, for example, had lots of success hiring you conservative faculty members at the Harvard Law School. Maybe that means she could win over conservative votes on the high court, maybe not. Garland, on the other hand, has clearly won the respect of the conservative Justices already. And Wood; she's worked effectively with Posner and Easterbrook for some time.

My second point was only that it's a bit strange to say that Kagan's positions arguing as SG are her own -- whether the issue is campaign spending or executive power. So to say that the Obama Administration likes her position in Citizen's United is the same as saying that the Obama Administration likes its own positions.

[vronsky47]

How is this negatively relevant for a naturalized US citizen who immigrated when she was four years old? "Granholm is Canadian"

[williampeterprice]

It is strange to say that Kagan is the candidate who is most suited to take on conservative members of the court and stand up for "regular people" when she has no record of doing so. Especially when other candidates you discuss have done just that for a long time. In addition, to say that the administration's top supreme court lawyer is arguing the administration's position in the Supreme Court is an entirely unremarkable revelation.