Supreme Court Possibilities I: The Women

Who will Obama pick as Justice Souter’s replacement?  For international readers:  The federal judiciary is the only part of the U.S. federal government that is not elected.  Federal judges are appointed by the president “with the advice and consent” of the U.S. Senate (generally known as “senate confirmation”).  Will he appoint a centrist who can be more easily confirmed or will he try for a liberal with the intellectual heft of Justice Scalia and young enough to work for decades to shift the court back to the left?  As a progressive concerned about law in the pursuit of justice, human rights, and civil liberties, I believe that the Republicans will attempt to block WHOMEVER Obama appoints.  So, he might as well swing for the bleachers while his approval rating is sky high. 

 Because of age and health issues, Obama may get to nominate as many as five (5) Supreme Court justices in eight (8) years if, as seems likely at this point, he wins a second term in office.  That’s a rare opportunity for a U.S. president to re-shape the direction of the Supreme Court for decades to come.  Remember, Jimmy Carter (D) had no opportunity to nominate a Supreme Court Justice.  Ronald Reagan (R), on the other hand, picked 3:  Sandra Day O’Connner (Ret.), the first woman on the court, in ’81; Antonin Scalia in ’86; Anthony Kennedy, the unpredictable swing vote, in ’88. (Kennedy came after two rejected Reagan nominees, one of which was the notorious Robert Bork.) Bush I (Souter in ’90; Thomas in ’91), Clinton (Ginsberg in ’93; Breyer in ’94), and Bush II (Roberts in ’05; Alito in ’06) all were able to pick 2 Supreme Court justices during their tenures in office.  So, Obama’s opportunity, if he gets all 5 chances, is quite rare–and a major reason I thank God every night that John McCain did not win last November.

But in all likelihood the first 3 vacancies on the Court (likely to come this first Obama term) will be from the moderate-liberal wing of the Court. (Souter this year.  Probably John Paul Stevens (89 and appointed by Gerald Ford in ’75!) and Ruth Bader Ginsberg (76, who has twice now had cancer surgery).   These nominations will still change the Court’s dynamics, as all new justices do.  But in 5-4 ideological splits, the balance of power is unlikely to shift until one of the conservative justices retires.  Bush II’s nominees, Chief Justice Roberts (54) and Justice Alito (59) are relatively young and in good health.  Of the 3 remaining justices, Scalia is ’73, Kennedy is ’72, and Thomas is 60, but there have been rumors of Thomas’ poor health for years and I suspect that Kennedy would like to retire within 5 years, but is hoping that Obama gets only one term. (I don’t think Kennedy finds the current Court dynamics much more enjoyable than Souter did. Kennedy is conservative, but not a far right ideologue like Scalia, Thomas, Roberts, and Alito.)

Now, presidents who get re-elected usually have harder second terms than first (although Obama inherited so many problems and such an ambitious agenda that this may prove an exception). So, my guess is that he will appoint his most liberal justices now while his approval rating is high and the Senate Republican numbers are so small as to make blocking nearly impossible.  If he gets to nominate a replacement for one of the conservative justices, the rightwing pushback will be huge and, depending on what else he needs political capital for at the time, he probably won’t want a major judicial fight.  So, look for him to appoint a more centrist justice, then, when he can argue that the Court won’t be moved much to the left–but the effect will be cumulative.

For the current nomination, conventional wisdom is claiming that Obama will almost certainly choose a woman and, for once, I think the conventional wisdom is right.  So, in this post, I will concentrate on female possibilities.  (In case he surprises us, I will give a second post on possible male appointees, but I really think Obama will save them for another appointment.) Pressure is also on the president to appoint a Latina or an African-American, but Obama is not the type to appoint simply to fill a quota–diversity will be one consideration of many, not a trump card.

Because five (5) members of the current SCOTUS are Catholic and I’d like to see more religious diversity on the Court, I’ll list the religious affiliation of the possible nominees if I can find it.  Article 1 of the U.S. Constitution forbids any religious test for public office, but Catholics seem over-represented on the current SCOTUS.  Is it a coincidence that the 5 Catholics are also the 4 solid conservatives  (Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito) and the center-right swing justice (Kennedy)? The retiring Justice Souter is Episcopalian (once the dominant religious affiliation of Congress, the presidency, and SCOTUS, but no longer), Justices Breyer and Ginsberg are Jewish, and Justice Stevens lists his religion as “Protestant” without further qualification.

 Possible SCOTUS nominees:

• Jennifer Granholm, current governor  of Michigan (D), Catholic.  At 49, Gov. Granholm is young enough to serve several decades on the Court.  She is also term limited and so cannot run for re-elections as governor of MI.  Because she was born a Canadian and is a naturalized citizen, she is constitutionally unqualified to be president or vice president, but no other offices are barred. She has been MI’s Attorney General, but has never been a sitting judge, but Obama has indicated that he wants to return to an earlier tradition of looking outside the judiciary for this appointment.  We have a history of many SCOTUS justices from outside the judiciary, but not recently, and currently all 9 sitting justices are former U.S. appeals court judges.  Granholm is an honors graduate of the University of California at Berkeley (Phi Beta Kappa with two B.A.s, one in French and the other in political science) and an honors graduate of Harvard University Law School.  I like Gov. Granholm as a possibility.  She has a varied background (growing up in Vancouver, British Columbia),clerking for the U.S. Court of Appeals, time  as a Wayne County Corporation lawyer, and a former  contestant on The Dating Game.  These are experiences that most judicial nominees do not have, but she also has strong legal background. And she helped VP Joe Biden prepare for his vice-presidential debate by playing AK Gov. Sarah Palin in preparation.  We know her to be a political liberal, but since she is not a judge, we won’t know the details of her legal/judicial philosophy unless/until she is nominated and faces Senate confirmation hearings.
• Leah Ward Sears, 53, religion unknown,  is currently Chief Justice of the Supreme Court of the state of Georgia who has announced plans to retire from the GA Supreme Court this June (when she turns 54).  Chief Justice Sears is an African-American woman who would add to both the gender and racial/ethnic diversity of the SCOTUS.  She was born in Heidelberg, Germany on the U.S. army post where her father, now a retired Colonel,  was stationed.  She describes her judicial philosophy as moderate, but is considered the most liberal member of the Georgia Supreme Court. (Still, this IS Georgia!) Her judicial opinions do show the compassion and empathy that Obama has said he is looking for in a nominee.  B.S., Cornell University (1976); J.D., Emory University School of Law (1980); Ll.M., University of Virginia Law School (1995).  She has also done extensive study at the National Judicial College.  She was a partner with the law firm of Alten & Bird in Atlanta until 1993.  She has an honorary Doctor of Law degree from Morehouse College.  She was the first African-American woman to serve in the Superior Court of Georgia.  Also, she was both the first woman and first African-American to serve on the Georgia Supreme Court.  First appointed as Assoc. Justice in 1992 (by then Gov. Zell Miller), she became Chief Justice in 2005.  She has been chief of the judicial section of the Atlanta Bar Association and Chair of the American Bar Association’s Board of Elections. She founded and served as first president of Georgia Association of Black Women Attorneys.  She has numerous rulings on significant matters in numerous areas of law and reflects a center-left judicial approach.  E.g., She has argued that death by electric chair is cruel and unusual punishment, but did not debate the constitutional right of states to impose death as a penalty. In a lecture at her alma mater, Cornell University, Justice Sears, who has herself been divorced and remarried, spoke on the societal costs of the breakdown of families, but in ways that suggested she thought both liberals and conservatives were in error. (The lecture gave little clue to her views on same-sex marriage.)  On the other hand, she named her daughter, Brennan, after the late liberal Supreme Court Justice, so perhaps she has more liberal leanings than she has been able to display in her career to date.  Her stands on election law, government accountability, and taxation are all likely to draw sharp questions in Senate confirmation hearings.  She has long worked against women and child abuse–an area of law particularly lacking in the current SCOTUS makeup.  I like her and I think she could hold her own in Senate hearings, but I think she  is centrist enough that Obama may save her for a later nomination.
• Elena Kagan, 49, Jewish,  current U.S. Solicitor General.  This would not be the first time that a Solicitor General (who pleads the government’s cases before SCOTUS) became a future Supreme Court Justice.  The famed  Thurgood Marshall was LBJ’s Solicitor General before Johnson nominated him to become the first African-American Justice of SCOTUS.  Kagan was, until Obama nominated her for Solicitor General, the first woman Dean of Harvard University Law School where she was also Houston Professor of Law.  She had previously taught law at the University of Chicago Law School, where she worked alongside Obama.  She has also been Associate Chief Counsel to the White House in Bill Clinton’s administration.  B.A., (summa cum laude), Princeton University, 1981; M.Phil., Worcester College, Oxford University,1983; J.D., (magna cum lauda), Harvard University Law School, 1986.  She was supervising editor of the Harvard Law Review.  She was a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Thurgood Marshall, U.S. Supreme Court.  She was confirmed by the U.S. Senate for her current post which argues that she could be an easy confirmation for SCOTUS, but she has just settled into her current position. She is a strong liberal and barred the military from recruiting on the campus of Harvard Law School because of the law against gays and lesbians serving openly in the military.  If Kagan is not Obama’s pick this time, expect her to be a likely nominee before his first term is up.
• Pamela S. Karlan, 50, Jewish,  Montgomery Professor of Public Interest Law, Stanford University School of Law.  B.A., Yale University, 1980; M.A., Yale University Graduate School of Arts and Sciences, 1984; J.D., Yale University Law School, 1984.  Worked for the NAACP Legal Defense Fund.  Law clerk for Judge Abraham D. Sofaer of the U.S. District Court for the Southern District of New York; Law clerk for Justice Harry A. Blackmun, SCOTUS.  Member, American Academy of the Arts and Sciences and American Law Institute.  Taught at University of Virginia Law School before Stanford.  Has argued many cases successfully before the Supreme Court and runs the Supreme Court litigation clinic at Stanford.  An award winning teacher and the author of a standard textbook on public interest law.  Frequent commentator on legal affairs for Newshour with Jim Lehrer.  Co-editor of 3 leading casebooks on constitutional law and litigation.  A strong liberal, I think Karlan would be a fantastic choice. However, she is an out-lesbian and this might lead to a major confirmation fight.  The question here is how much political capital Obama is willing to spend. Gay rights is making progress, even in public opinion, but the Right may decide that Karlan would be a good rallying cause.  She is also a very published critic of the way Bush v. Gore distorted the 14th Amendment’s “equal protection” clause–something that is sure to draw Republican fire during confirmation hearings.  She has argued many cases before SCOTUS.
• Margaret McKeown 58, federal judge with the United States Court of Appeals of the 9th Circuit.  Appointed by Pres. Bill Clinton.  I can’t find much else out about Judge McKeown (including a photo), but the 9th Circuit Court is known for its liberalism and for having many cases reversed by the Supreme Court of the U.S. (SCOTUS), often in 5/4 split decisions. For this reason, alone, Judge McKeown would likely be highly scrutinized by Republicans and conservative Democrats in the Senate.  At her age, if Obama is wanting to pick younger justices who can shape the SCOTUS for decades, this is probably Judge McKeownn’s only shot at the high court.
• Johnnie B. Rawlinson, 57, an African-American woman, is currently a Federal Appeals Judge with the U.S. Court of Appeals of 9th Circuit Court, a position held since July 2000. She was appointed by Pres. Bill Clinton upon the recommendation of Sen. Harry Reid, who is now Majority Leader.  From 1998 to 2000, Rawlinson was U.S. District Judge for the District of Nevada, a position for which she was also recommended by Reid and nominated by Clinton.  But this means she has twice been confirmed by the U.S. Senate–when there were more Republicans than now (and they didn’t much like Clinton’s judicial picks, either).  B.S., North Carolina A & T. C University, 1974; J.D., McGeorge School of Law, University of the Pacific, 1979.  Private practice and then work in the Office of the District Attorney in Las Vegas, Nevada.  Again, if Rawlinson is the pick, this will be her time rather than later.  Yet I think Obama wants someone younger and not as centrist for this first SCOTUS pick.
• Judge Sonia Sontamayor, 54, Catholic, currently a federal appeals judge withthe 2nd U.S. Circuit Court of Appeals.  She shares something with the retiring Justice Souter:  they were both nominated to their current positions by the first Pres. Bush.  Sontamayor, a Latina who grew up in the Bronx, NYC, is a graduate of Yale law school.  When nominated, she was considered a political moderate, but today’s Republicans are likely to consider her a judicial liberal.  I have found little else about her, but she has been on the federal bench for some time and yet is young enough to be a major influence on the future of the SCOTUS. Her nomination would please both women and Hispanics and the 2nd Circuit Court of Appeals is not considered the bastion of liberalism that the 9th Circuit is.  Her appointment by the first Pres. Bush SHOULD make it easier for her confirmation, but conservatives HATED Bush I’s judicial picks, except for Clarence Thomas (whom liberals despise).  Much conventional wisdom says that Sotomayor is the favorite and there have been several attacks on her by conservatives recently that suggest that conservatives believe it.  But I am not certain. Sotomayor is a moderate-centrist.  So much so that, after the Harriet Myers disaster, Democrats in the Senate tried to get Bush II to nominate her, knowing that his wife wanted him to appoint a woman and that Bush II was trying to court Hispanic votes and wanted to name the first Hispanic to the Supreme Court.  Democrats saw Sotomayor as a moderate in the tradition of O’Conner who was retiring.  But Bush decided to push the Court further to the right.  I’m not sure Sotomayor now pushes the court back far enough left.  She might be a good pick for when one of the conservative justices retires–when Republicans would see her as a good compromise after getting strong liberals beforehand. On the other hand, Obama also needs to woo both women and Hispanics, and Judge Sotomayor is one of the few strong Latina’s high in the legal community.
• Rep. Linda Sanchez (D-CA-39), 40,  Catholic, would be, like Gov.  Granholm, a pick from outside the judicial world–back to the tradition of appointing working politicians to the SCOTUS.  Sanchez is young, a strong liberal who led the Congressional investigation into the Bush-era Dept. of Justice’s politically-motivated firings of 9 U.S. attorneys, and who challenged and won when Bush suspended the law demanding that government pay local contractors prevailing wages in the wake of Hurricane Katrina.  She sits on the House Judiciary Committee and co-founded the Labor and Working Families Caucus in Congress.  The daughter of Mexican immigrants (and the only member of Congress to have a sibling, her older sister, Loretta Sanchez (D-CA-47th), in Congress), Rep. Sanchez is a former member of the International Brotherhood of Electrical Workers (IBEW) and worked her way through both her undergraduate (B.A., University of California at Berkeley,1991) and law degrees (J.D., University of California at Los Angeles, 1995) as a union electrician–garnering plenty of that “real world experience” the president said he wants in his nominee.  She is the first Latina to represent part of Orange County (and one of the few Democrats to ever regpresent this conservative part of CA), and the first Head Start baby to serve in Congress.  She is only recently married (last month) to Jim Sullivan, who  fathered her child last year before they were married. (She told reporters that doctors had advised her at 39 not to wait if she ever wanted to have children.) This might lead to embarrassing questions at confirmation hearings, but the Senate is less male dominated than when an all-male Judiciary Committee barbecued Prof. Anita Hill in the ’90s during the confirmation hearings for Justice Thomas. (Hill claimed that Thomas had sexually harassed her 10 years previously when she worked for him. The majority of the senate chose to disbelieve her testimony, but numerous women have since come forward to corroborate with stories of their own about Justice Thomas’ despicable behavior.)  She might be a longshot, but Sanchez would thrill women,  Hispanics, and liberals in one shot.  She’d bring a much-needed working class background to the Court, most of whose members (Thomas the one exception) are children of privilege.  If she is not the nominee this time, I hope Obama chooses her in the future.
• Kathleen M. Sullivan, 54, currently Morrison Professor of Law, Stanford University Law School. Formerly Dean, Stanford University Law School.  Taught constitutional law at Harvard before Stanford.  The National Law Review named her as one of the top 100 most influential lawyers in the USA. Fellow of the American Academy of Arts and Sciences and of the American Philosophical Society.  B.A., Cornell University, 1976; B.A., Oxford University, 1978 (Marshall Scholar); J.D., Harvard University Law School, 1981.  Highly published. Has frequently argued cases successfully before various appeals courts and SCOTUS.   Openly lesbian, Professor Sullivan has argued gay rights causes in several courts.  She would be the strong liberal champion that I’d like to see and someone brilliant enough to keep taking on Scalia and is young enough to be a major voice on the SCOTUS for decades.  But her nomination might trigger one heck of a confirmation battle.
• Judge Kim McLane Wardlaw, 55, currently a federal judge in the U.S. Court of Appeals for the 9th Circuit.  Born to a Scottish-Irish father and a Mexican-American mother, she is the first Latina U.S. Court of Appeals judge.  (Although, since neither her name nor looks are Latina, I don’t know that Judge Wardlaw’s nomination will gather the support of the Hispanic community.) B.A., Communications, summa cum laude, Phi Beta Kappa, from the University of California at Los Angeles (UCLA), 1976.  J.D., UCLA Law School, where she was 5th in her class of 300 and inducted into the prestigious Order of the Coif.  After years of private law practice, Wardlaw volunteered for Bill Clinton’s 1992 presidential campaign and worked on the Clinton-Gore transition trend.  Nominated to the U.S. District Court for the Central District of California in 1995.  Then, Clinton nominated Wardlaw to the 9th Circuit in 1998 and she was unanimously confirmed.  She will be considered by the GOP to be a liberal, but she has a solid record of cases which have never been reversed and she has won numerous awards.  It will be hard to attack her credentials and hard for the Republicans who were in the Senate in ’95 or ’98 to explain that the voted for her then, but find her unacceptable, now.  Wardlaw might be one of Obama’s safest choices for confirmation.  There is one case, Card v. City of Everett, that troubles me as a church-state separationist. Judge Wardlaw, writing for the majority, held that a 10 Commandments display on city land did not constitute an establishment of religion and, thus, was not a violation of the First Amendment.  I disagree.

There may be others on the Obama list which have not made the rumor mill.  Were I a gambler, I’d put money on Gov. Granholm as the most likely.  None of these nominees would make me unhappy, but I’d probably most like to see a true liberal champion like Kagan, Karlan, Sullivan, or Sanchez.