Guessing Game: Who Will Replace Souter?

US Supreme Court building, Washington DC 2005/10/3 AP

As he goes about making his first - but probably not last - appointment to the United States Supreme Court, President Barack Obama surely knows that he's playing a very strong hand.

He has a clear majority of fellow Democrats in the United States Senate - whether the figure reaches 60 or not doesn't really matter for our purposes here - and a trove of well-qualified, moderate jurists from which to choose.

It's been 15 years since a Democratic president got to appoint a justice. Back then, in 1994, President Bill Clinton selected a moderate liberal from the lower federal courts, Stephen Breyer, to replace the moderate conservative (and Republican appointee) Harry A Blackmun. Now, in the coming weeks, President Obama will have to decide who he wants to replace David H. Souter, another practical, left-moderate jurist, who evidently has plans to ride off in the New England sunset.

Fifteen years of frustrated Democratic nominees has caused quite a back-up of candidates. But the Obama Administration already has offered some serious clues about the sort of person they'd like to try to put onto the court. Six weeks ago, when asked about a potential Supreme Court nomination, a senior Administration official told reporters that the White House is looking for people with experience in law and in life, people with character and commitments to a community, people who can make hard decisions but still have empathy for the litigants before them.

If these job qualifications are accurate - if they aren't just spin - they suggest strongly that the President will look beyond the lower federal courts for his first selection.

Right now, each of the eight remaining justices served as federal appeals court judges before they were tapped for promotion. The departing Justice Souter also fit into this category. The last justice who had served in politics was Justice Sandra Day O'Connor, who has now been off the Court for years. You can hardly blame the president for wanting to look to academia, or to the political arena, to shake up what has become little more than a roster of federal appeals court all-stars.

Take the sum of that political calculation and then add to it what already is shaping up to be great pressure from women's groups to add a second female justice to the Court. And then add to those first two layers of mathematics pressure from Hispanic groups waiting patiently for their turn at calling a justice one of their own. You can easily see how quickly it all could devolve into chaos. The president and his counselors are wise enough to know that they won't be able to satisfy all of their interested constituents with just one choice - someone is going to be left out.

Let's start with the political angle. How about Michigan Gov. Jennifer Granholm? Like the president, she is a graduate of Harvard Law School. She was a federal prosecutor and a county attorney before she went (successfully, it seems) into politics. Could we not use another O'Connor on the court mixing brains with consensus building? Of course we could. A longshot in this category would be Deval Patrick, the Governor of Massachusetts and also the product of Harvard Law School. His friendship with the president might take him out of the running, at least for this vacancy.

Let's stay with the Harvard Law School angle. How about Kathleen Sullivan? The prominent constitutional scholar was dean of the Stanford Law School after she taught at Harvard Law School. Sullivan doesn't possess the political experience that Granholm or Patrick possess, but she did fail her first bar exam, which counts for something in my book. Solicitor General Elena Kagan (and former HLS alum) also will get some support although she may need a few years arguing before the Justices before she gets serious consideration for being one.

Now let's go with the Chicago angle. How about Diane Wood? She gets a strike against her because she is a federal appeals court judge (7th Circuit) but she also gets a big plus for long-being a professor at the vaunted University of Chicago Law School.

Or Cass Sunstein? He's a brilliant writer and scholar, with University of Chicago ties, who happens to be already working for the president at the White House Office of Information and Regulatory Affairs. If the White House picks a white guy then I'm betting that Sunstein's the man.

That's bad news for Laurence Tribe, the constitutional law icon with still more Harvard connections to the White House. Did he make too many enemies two decades ago when he helped turn a man's last name, Bork, into a verb, borked - a word that describe the state one finds oneself in after being deprived for political and other reasons of a great job.

And, finally, for fun, wouldn't it be great if the president picked Ruth Wedgewood, the brilliant Johns Hopkins scholar who specializes in international law? Wouldn't you like to see the look on Justice Antonin Scalia's face the first time his new colleague, Justice Wedgewood, cites international law in conference? I know I would.

Now let's turn to sitting judges. What about Georgia Supreme Court Chief Justice Leah Ward Sears? She's the first black woman to be appointed chief justice in any state in the nation and her record suggests precisely that sort of "law and life" balance that the president's man was talking about that day.

Speaking of firsts, there is Kimberly McLane Wardlaw, an aptly-named federal appeals court judge in California. She spent a great deal of time in private practice, wrote an opinion upholding the constitutionality of a Ten Commandments' display on public property, and would be the first Hispanic woman on the Supreme Court. Tough to bork her, no?

Tough to pass on Sonia Sotomayor, too. She's a federal appeals court judge based in New York who was widely identified a few months ago as a leading candidate to replace Justice Ruth Bader Ginsburg (who apparently isn't going anywhere anytime soon). Judge Sotomayor was first appointed to the bench by George H.W. Bush and is known mostly for ending the 1994 baseball strike with a ruling against Major League Baseball. If she is nominated, you just wait for the "Woman Who Saved Baseball" commercials. Health concerns may make her a longer shot than she should be given her experience and bipartisan record.

I could go on and on but I'll finally stop and leave you with this. I have covered Supreme Court transitions now for several years and about the only thing I feel safe in predicting, this early on, is that the people who know what is happening will not be talking and that the people who will be talking almost certainly will not know what is happening. So let's just say that the Court is likely to look differently next fall than it does right now.

In fact, if my hunch is right, and the president selects a moderate-centrist-liberal to replace Justice Souter, the Court may in fact look more differently than it will act.
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