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Kagan, Wood and Garland Still Top Supreme Court List


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

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