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.