By Sam Singer
For a legal journalist, a Supreme Court vacancy presents an opportunity to channel an inner sports writer. It’s an occasion to size up a talented field of contestants, to gauge their strengths and weaknesses, and ultimately to forecast the outcome of one of the more critical contests in U.S. government. For a profession that finds excitement in the dullest of matters, a Supreme Court vacancy is the stuff of action adventure films, like a high-speed chase for a traffic cop. It’s no wonder the opening coverage quickly digresses into a search for the front-runner.
In this tradition, let’s consider what we know about the field. First, the vetting process is well underway. Last week, an ABC blog reported that the White House had finalized a short list of six candidates, all women. We then learned the list was neither final nor complete, and that the president was taking great pleasure in watching the media go to work believing otherwise.
Whatever its length, Solicitor General Elena Kagan and federal appeals court judges Diane Wood and Sonia Sotomayor stand out as early favorites. Each is believed to possess one or more of the “plus factors” on the President’s checklist. Like the shortlist, the true contours of that list are unclear, except to say it likely will be longer than similar lists in the past.
By all accounts, each candidate’s work history will be profoundly relevant. As it’s currently comprised, the Supreme Court is an All-Star roster of former federal appellate judges. For the first time in history, each of the nine justices has previously served on one of the U.S. circuit courts of appeals. Some experts believe this is precisely what the high court should look like: a highbrow collection of the judiciary’s finest legal minds. After all, the Supreme Court is an appellate court of the highest order – what’s wrong with stocking it with elite appellate judges?
Others believe the Court is out of touch. According to this crowd, by pulling exclusively from the upper echelons of the federal judiciary, previous administrations have turned the Supreme Court into a gated community for distinguished appellate judges. Excluded are innumerable candidates of diverse experience – the elected officials and private lawyers, the state court judges and the academics – who in an earlier era would have received closer looks. When asked what he looks for in a justice, President Obama described former Chief Justice Earl Warren, who served three terms as Governor of California before he was nominated by President Eisenhower. From this statement and others, many have concluded the President hangs his hat with those calling for diversity in experience on the bench. As a result, this may be the first nomination process in decades in which a candidate’s seat on a federal appellate court could actually hurt her chances of being elevated.
Outside the traditional pedigree, the president will consider judges on trial courts and state supreme courts as well as candidates from non-judicial backgrounds. Among the front-runners, this will favor Ms. Kagan, who would come to the Court – by way of the Solicitor General’s office – from a distinguished career in academia.
For reasons that require no explanation, race will be an additional factor. When writers discuss race in the context of Souter’s replacement, they’re likely talking about Second Circuit judge Sonia Sotomayor, who if selected would be the first Latina nominated for the high court. The recent hoopla is a bit unfair to Sotomayor, who has been a Supreme Court short-lister for years and likely would remain one even if, by some bizarre error in lineage, we discover her ancestors arrived on the Mayflower. (The president is also considering U.S. District Court judge Ruben Castillo, another prominent Latino jurist, but for present purposes, Castillo is one X chromosome short of a reasonable chance).
Alongside demographics, the president’s vetting team will be pouring over judicial opinions and scholarly publications for a better sense of each candidate’s judicial philosophy. The president is undoubtedly in the market for a reliable progressive; just how reliable and how progressive will turn on his understanding of the Court and its moving parts. Scholars differ over the most effective way to approach a Supreme Court vacancy. One theory holds that doctrinal shifts flow from the doggedness of ideological firebrands like Antonin Scalia and William Brennan, both credited for using channels of persuasion outside the opinion process to move the Court closer to their respective ends of the spectrum. A justice, in other words, is worth more than her weight in votes.
At first glance, Diane Wood appears to fit this mold. Some credit Wood for savvy maneuvering on the Seventh Circuit. By these accounts, Wood has helped neutralize Frank Easterbrook and Richard Posner, the Court’s conservative heavyweights. But if Wood’s opinions are revealing of a sharp and scrupulous thinker, they offer little to suggest an ideological agenda. For a real firecracker, President Obama will have to look beyond his short list, or at least beyond the common renditions of his short list, to someone like Kathleen Sullivan.
More likely, President Obama will seek to swing the Court with a nominee who can command the respect of the Court’s conservative wing. This will require focusing on the quality of the jurist. In some cases, it will require elevating a candidate’s skill set over her judicial temperament, and her craftsmanship and eloquence over her conclusions. An argument can be made that testing aptitude at this level amounts to hair-splitting. Indeed, by every professional standard, each of the president’s short list candidates is in the stratosphere. But that’s no reason to treat their respective gifts as common denominators. Some are more talented than others, and from my read of the chatter within the legal community, Kagan and Wood stand out from their competitors as exceptionally capable jurists.
One factor that has received misleadingly limited coverage is longevity. The significance of longevity as a factor can be gleaned from the following fact: Of the Court’s three justices under 65, all three reside in the conservative camp. Ranking the front-runners, Kagan leads the pack at a spry 49, followed by Sotomayor, who is in her mid-50s but suffers from diabetes. Wood, who is approaching 60, trails.
For those keeping score, Elena Kagan has more “plus factors” in her column than either of the two favorites. That’s to her credit, but she also enjoys some other advantages. For one, she has built a reputation as a unifier, having gone further toward uniting Harvard Law’s warring academic factions than any dean in recent memory. Also, her hair is still windblown from sailing through the Senate after the president appointed her Solicitor General. She was confirmed by a vote of 61 to 31.
Those are odds Obama just might take.
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Sam Singer is the Beachwood’s legal correspondent. He welcomes your comments.
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Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.
* Taking Government Out Of The Marriage Business. Separating church and state.
* Chicago’s Disorderly Conduct. Dissent allowed even in Daleyland
* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.
* Is Blago A Flight Risk? We asked; a judge said yes.
* Obama’s Torture Test. Politically calculating.
Posted on May 16, 2009