Saturday, April 10, 2010

Three Supreme Court Nominees

by Richard Crews
There are three strong candidates to fill the vacancy on the U.S. Supreme Court that will open up with Justice Stevens' retirement in the next few weeks. These three make up Obama's "short list." All three are brilliant intellectuals with stellar legal and judicial careers.

The most likely nominee is Elena Kagen (49 years old*). She is presently the U.S. Solicitor General having been confirmed by the Senate only last year. She got an AB (summa cum laude) from Princeton, then a B.C.L. from Oxford, and her J.D. (magna cum laude) from Harvard Law. She served as professor of Law at the University of Chicago, and as dean of Harvard Law School (in fact, interestingly, she was appointed by Larry Summers when he was president of Harvard). She has limited judicial experience--she has never served as a judge and had never argued a case in court before becoming Solicitor General last year. On the liberal side, she is known as a supporter of gay rights, but also has favored the extension of "battlefield law" (including indefinite detention) beyond traditional battlefields.

It is particularly significant that Elena Kagen is eminently confirmable in the present, very hostile Senate political environment since she is not seen as a "flaming liberal" and went through a Senate confirmation process (including receiving Republican votes) just a year ago.

The most acceptable of the three to the hostile Republican minority in the Senate (where a simple majority will be required for confirmation, but the process can be stalled by filibuster) is Merrick Garland (58 years old*). He is currently a Federal Judge in Washington D.C. He earned a B.A .(summa cum laude) in Social Studies from Harvard University, and then his law degree (magna cum laude) also from Harvard. He is seen as a "judicial moderate."

The most liberal (and therefore least confirmable) of the three is Diane Wood (59 years old*). She has been a Federal Judge since 1996, and was previously a professor at the University of Chicago Law School. She earned a B.A. in three years from the University of Texas at Austin, graduating with "highest honors." She then went to the University of Texas School of Law where she was editor of the Texas Law Review and earned her J.D., graduating at the top of her class with "high honors."

Whoever Obama's nominee is, the person will clearly be a stellar candidate--well qualified intellectually and with substantial legal experience. Nevertheless, the Senate Republicans have promised a "whale of a fight." They will presumably continue their obstructionist agenda, so this confirmation should provide fascinating theater even though a despicable and embarrassing display of "democracy in action."


* On the question of age, Brookings Institute wrote--"What about the nominee’s age? Although President Nixon’s first three appointees were over 60 at the time of nomination, from Justice Rehnquist to Sotomayor, only Justice Ginsburg was over 59 and the average age of the three most recent appointees was 53 at nomination. The desire to appoint justices likely to be around for a while may eliminate Wood (who will turn 60 in July) or even Garland (now 57), and favor Kagan (who turns 50 later this month)."