Now that John Paul Stevens has officially opened a vacancy on the Supreme Court of the United States, it’s time for Obama to get down to business about picking an appointee. I was pretty quiet last time around due to work commitments and also a general “meh” about Sotomayor as a legal mind. (I still think she was the right nominee, as confirmed by the fact that every male lawyer I knew kept complaining she was a “bitch.”) This time, I’m gonna cover this a bit more thoroughly for you guys, that is, if you’re interested.
As this has been suspected for some time, the blogs have been all abuzz about who Obama might pick. If we go purely on majority rule, it seems most people are calling the game for former Harvard Law School Dean and current Solicitor General of the United States Elena Kagan. Kagan’s research as a professor was mostly on administrative law, which is pretty dry stuff, though crucial in its own way. I’ll start digging out law review articles and stuff – I do see some First Amendment stuff in there. But right now, two qualities she has that are pretty important: she’d be a lady replacing a man (again!) and she’s reportedly a lesbian. (She doesn’t comment on her sexuality in the press.) That’s a pretty critical change if that challenge to the constitutionality of the Defense of Marriage Act (DOMA) makes it to the Court in the next few years. But some people on the left – see here, and here, and here – are not that thrilled with her because as a member of the Obama Administration she’s taken rather softball positions on torture and the legacy of the Bush Administration.
Obama allegedly has a list of ten but it’s only been reported that Kagan, and the following two people are on it for sure:
- Diane Wood, currently sitting on the Seventh Circuit Court of Appeals in Chicago, Illinois. Wood has a background in business law, particularly antitrust. I can’t, off the top of my head, think of an opinion she’s written that I’ve admired or a result she’s been responsible for that I’ve loved; if any Harpy readers can, let me know.
- Merrick Garland, a sitting judge on the D.C. Circuit Court of Appeals. Per Wikipedia considered a moderate; again, not someone who’s ringing a loud bell in my consciousness. He was apparently responsible for the 2008 decision issuing a writ of habeas corpus (i.e. allow the release) of one of the Uighur detainees. He’s friends with Chief Justice Roberts, though, which isn’t… encouraging.
Other people who have been considered in the past and may show up again:
- Cass Sunstein, former Chicago and Harvard law school professor, and right now sits as the current head of the Office for Information and Regulatory Affairs. Glenn Greenwald hates the idea of Sunstein on the court. I’m often with Glenn, although I think he sometimes subscribes to an absolutist view of civil liberties that I don’t like. But Sunstein’s work that I’m familiar with is mostly about regulation of the internet and the First Amendment, and I don’t have a huge problem with him in that context. Gonna have to do some more reading there.
- Kathleen Sullivan, constitutional scholar, former Stanford Law School Dean and now a partner in the notoriously belligerent corporate defense litigation shop of Quinn Emanuel Urquhart & Sullivan. Famously failed the California Bar a few years back. Like Kagan, she is openly gay, and again that may be crucial.
- Pamela Karlan, another constitutional and voting rights scholar, also from Stanford Law School. Sort of a Ginsburg II, if I recall correctly.
I’m excited that this process might finally, if the left shows some balls, occasion a serious discussion about the judicial legacy of the Bush Administration, as well as case law about torture and detention, or about gay marriage. I’m not, however, holding my breath, mostly because I’ll probably need my screaming voice for the crazies.
Who appear, at the moment, to include Ezra Klein. I like Ezra, but what the hell, dude:
Hahahaha (spit take). I’d like some of what he’s smoking. Politicians are already way too damn involved with SCOTUS. And then this:
NO. I mean, I’m sure we have Hillary fans here, but just NO. No partisans on the Supreme Court, please. We need some good legal minds who can get us out from under the shitty precedents of the current court. Which is why I’d prefer, myself, to see a law professor.
Anybody else have preliminary thoughts? I promise the next post will be more organized.
No partisans on the Supreme Court? You mean that ironically, right? What would you call Alito and Roberts, and for that matter, Scalia and Thomas? They march in lockstep to their masters in the GOP, and if the theft of the presidential election in 2000 wasn’t enough proof for you, I don’t know what would be.
Hillary would be an outstanding justice. As for Kagan, I’d love to hear the Repubs try to get her to come out. They wouldn’t have the nerve to ask her outright, I bet. But seeing the way Obama operates, I suspect he’ll come up with someone very few people have thought of. As long as that person is solid on abortion, women’s rights and the First Amendment (well, those are my top priorities; of course there are more), gender isn’t important to me.
Please please please another woman. One who is committed to equality and women’s issues. I’d love Hillary as a justice, but it will never happen.
Please, not another old white conservative man.
Mischiefmanager: to me there is a difference of degree between someone who’s actively run for public office on a party platform and someone who has been sitting in a university or even, in most cases, as a judge. Even Nino has swung once or twice.
I don’t understand why Hillary would make an outstanding justice. To my Canadian ladybrain that’s like saying Oprah would too, since she has all the right opinions. Or hey! Judge Judy! Sure, Hillary’s more civic-minded, but big appellate law ought to be navigated by people with expertise in… appellate law. Or so it’s always seemed to me.
(I know, I know, probably playing with fire. I just don’t get the love for any Clinton.)
I nominate Niecy Nash, because I believe she can cut through all the “mayhem and foolishness,” plus I think she could keep Clarence Thomas in line.
I kid.
It will be interesting to see how this plays out. My money would be on a female candidate, except I’m not sure if that would play well a second time. Of course any candidate is automatically going to be looked at cross-eyed by the Republicans, no matter how good their judicial record. A woman might have a better shot of getting around partisan resistance, but the fact is, the Republicans might put up a bigger fuss this time than they did with Justice Sotomayor.
I nominate Ezra Klein to STFU. I mean, I know the judiciary is not truly apolitical, but we sure as hell don’t need any career politicians on it.
As I said to the Harpies, I would absolutely love there to be a lesbian on SCOTUS purely so she can write a blistering dissent when Scalia goes on record blathering about the “homosexual agenda.”
First and foremost I think we need to completely take the “which one will the Republicans like best” angle off the table: they’ve made it clear that we can bend all the way over backward to be bipartisan and they will vote lockstep against us. So let’s pick the leftyist gayest lady around and pack this Court up tight.
yvanehtnioj: I think that’s Karlan in this instance, but gonna be reading up.
Wood. Anyone who has to put up with Posner and Easterbrook’s law and econ all day deserves something besides good karma.
I want 9 women on the court, for like 200 years. Then I’ll start letting dudes back on.
@yvan: Couldn’t agree more. The Republicans will vote against an Obama nominee regardless. Might as well get a lefty to counterbalance Scalia and Thomas. And when Ruth Bader Ginsburg leaves, I want a raving feminazi to get her spot.
@yvan: me three. Let’s not even bother with what they like and don’t like-they won’t like anyone Obama comes up with. There must be some good African-American appellate judges or scholars out there-it’s def time for a black woman on the Court.
@PSoul: I take your point, although I’d rather have someone who was a politician and everyone knows it than to have these stealth politicians we have on the Court now, who so sanctimoniously claim to be above the fray while awaiting the next order from the far right, gun lovers, woman haters and the Church.
In fact, Hillary was a law professor, so she does have that background. But I’m not saying she’s the best candidate, only that she’s smart and thoughtful. Someone who’s currently either teaching or on the bench would be a better choice.
I want Hillary to stay right where she is! I think she’s been a pretty kick-ass SOS. I also agree that we can’t worry about what the right will think. They’re going to scream and cry like the loser babies they are. As much as I want Obama to pick a real lefty, I have the feeling he’ll play it fairly safe (sigh). I WISH Obama was HALF the fucking socialist the wingnuts think he is! I mean, he’s pretty middle of the road – if he had pushed hard for a public option, from the get-go and really “rammed it down their throats” (rightwingers being obsessed with violence, especially of the sexual sort) we could have ended up with true HCR – and once everyone had it they’d be happy and STFU about it. What was passed is pretty similar to what the GOP put out in response to “Hillary Care” in 1993. It required people to buy insurance! They truly are the party of no. Yet Obama keeps offering them concessions. I do think he will go for a “diversity” candidate – I just don’t think that person will be as reliable a liberal vote as Stevens.
That being said, right on, J.D. Regent! Right. Fucking. On.
Don’t judges have to tell the truth, though?
Because if we get a Gay Lady up there, and somebody mentions the Homosexual Agenda, she’d have to tell them about the Super Secret Queerbo No Boyz Allowed Clubhouse and stuff, right? And tell them about the meetings and the secret handshake?
This will not end well.
Damn it, Cimorene, didn’t you take the Blood Oath to Secrecy? Now everyone’s going to know.
I don’t see what’s so bad about a politician being on the bench. There’s something to be said for personal first hand knowledge of the legislative process. O’Connor’s consesnsus building (while not always jurisprudentially helpful) was shaped by her time as an Arizona legislator.
The idea that makes me nuts is that the next justice shouldn’t be an attorney.
@evil fizz: People hate attorneys-until they need one.
[...] 10, 2010 · Leave a Comment She’s one of the names being put forth by as a possible replacement for Supreme Court Justice John Paul Stevens, who [...]
[...] Let’s Get Another Ladyfriend On The Supreme Court This Time Around – Justice John Paul Stevens of the US Supreme Court is retiring. The harpies suggest that Obama appoint a woman to replace him. Several possible nominees, men and women, are listed. [...]
Thanks for the overview!
hahahaha JDRegent. AGREED.
In one sentence you say that Kagan is ‘reportedly’ a lesbian, in another you say she is ‘openly’ gay. I think you should respect her privacy.
I also think your commentary about QE being a “notoriously belligerent corporate defense litigation shop” is wrong on a number of fronts. dont hate.
If you think that the description of Quinn Emanuel is wrong on a number of fronts, you might want to let QE know. Their website gleefully quotes American Lawyer’s description of the firm as “Better. Faster. Tougher. Scarier.” Every single subset of the “About Us” section has a paragraph akin to this one (from Our Firm: Why We Win): “The General Counsel of a well known internet company recently told one of our partners that he wanted to hire us because we “were responsible for making the business of litigation more competitive.” As he said, we are the “hungry dogs”.”
It’s not ‘hating’; any lawyer could tell you that it’s what the firm’s known for. And the firm itself is thrilled about that reputation.
What yvanehtnioj said, and Kagan does not deny her sexuality, dude, she just isn’t giving interviews about it. I’ll doubt your motives, though, if you are interested in “defending” QE from charges of aggressiveness. They’re lawyers.
I wasn’t referring to the phrase “notoriously belligerent”, I object to it being called a “corporate defense shop.”
Can we get an UPDATE of this post to reflect that the White House has denied the rumors?
http://www.washingtonpost.com/wp-dyn/content/article/2010/04/15/AR2010041505658.html
@Jon Mayer:
I object to it being called a “corporate defense shop.”
Why? That’s neither a pejorative description nor an inaccurate one.