THE PLANK MAY 1, 2009
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. His is the founder of SCOTUSblog.
Legal Washington's best-kept secret leaked this afternoon, and by 10pm Pete Williams and then Nina Totenberg had confirmed that Justice Souter intends to retire. Justice Souter obviously has a significant legacy at the Supreme Court. But it is important to pause and recognize he will go down in history as a gentleman and (rare these days) a scholar who (even more rare) sees no need to show that fact off. He has the kindness of Justice Stevens and the smile of the late Justice Brennan, but he also is perfectly capable of confronting an advocate who was out-and-out wrong. He is respectful but direct. You know where you stand with him. His colleagues and the Court staff will miss him when he leaves.What next then? The president must pick a nominee under overhanging threats and bombast from both the left (which fears disappointment) and the right (which has no genuine influence on the process, but recognizes the great importance of the Court). So first we learn about the president. It seems obvious to me that he is focused on qualifications. By contrast, we have very little to go on in terms of the weight the president places on ideology in judicial nominations, which is a big deal. Judge Diane Wood and Professor Pam Karlan are both Democrats and geniuses, but they see a reasonable amount of the law differently.Progressives come to this nomination with admiration for President Bush's (eventual, in one instance) ability to identify and confirm exceptionally qualified nominees who also hold strong jurisprudential views that (in the case of Justice Alito) moved the Court. They contrast that commitment to shaping the Court with what they remember as President Clinton's unwillingness to invest his "capital" in liberal nominees in the mold of Bill Brennan and Thurgood Marshall. They will want to believe that the make-up of the Senate--particularly given the coincidentally timed switch of Senator Specter to the Democratic Party and the anticipated arrival of Al Franken--gives the administration essentially a free hand to appoint whomever it wants. And they will believe that it is possible that the same may not be true by the time another nomination rolls around in later years. Progressives will push very hard.We can say that it has to be a woman. The gender imbalance on the Court is absurd, and the administration will like the perceived contrast with President Bush's failure to address it. Race and ethnicity seem less important. As the best-known Hispanic judge appointed by a Democrat, Sonia Sotomayor will be seriously considered. But she will only be nominated if the president genuinely believes her to be the best candidate; racial politics can be addressed through other nominations.So, who? Who knows? Given my premise that qualifications are extremely important--i.e., that the president will want to pick someone who stacks up evenly with the Chief Justice and Justice Alito--a truly shocking surprise is very unlikely. The number of people who have the horsepower and reputation to truly deserve a Supreme Court appointment is pretty small. My most recent post on this speculation is here, and I don't have much to add to it. (The president and I don't talk as often as we should.) I said then that "[t]he three obvious candidates are Elena Kagan (SG), Sonia Sotomayor (CA2), and Diane Wood (CA7). The sleeper candidate is Michigan Governor Jennifer Granholm." Governor Granholm subsequently said she was not interested, but you never know. Through all his Chicago ties, including to the University of Chicago Law School, the president will be very familiar with Judge Wood's reputation for brilliance. The president also knows Elena Kagan (who has her own Chicago ties) and the administration will be very conscious of the fact that General Kagan is ten years younger and has the reputation from Harvard of working very well and persuasively among an ideologically diverse group.The president will be personally invested and involved. I think it will come down to interviews between Wood, Kagan, Sotomayor, and two more out-of-the-box candidates, perhaps one with significant political experience and another who is a progressive visionary. And the president will decide personally based on his own very individual view of how he wants to shape the Court. There is no rush to make an announcement. The term will conclude at the very end of June, and it makes no sense--and there is no pressure--to announce a choice for a successor before the justice has completed this term's work. That leaves two months, which is plenty of time, and the president can reasonably be expected in very early July to name his nominee. Hearings would be held in early or mid-August (the administration and Senate Democrats will want them sooner rather than later, in order to not leave the nominee hanging), when the rest of Washington hoped to be on vacation away from the heat.
Cross-posted at SCOTUSblog