Welcome Class of 2014!
Posted 8/31/10 by Jason Berkenfeld
Read post »Later, Souter
Posted 5/01/09 by Eva Lam
David Souter, everybody’s favorite incorrigibly retro bachelor from rural New Hampshire, is retiring at the end of this term. This begs the question of a replacement, on which I am categorically unqualified to comment. But, like any good blogger, I can refer you to other people’s much more informed opinions.
We’ll start from a premise that Marc Ambinder puts rather bluntly: “White Men Need Not Apply.” I’m not particularly inclined to feel sorry about this (is that what Ambinder’s asking for?), particularly given that there seems to be a reasonable supply of highly qualified legal minds who would up the membership of the Court’s Lady Caucus to a record-tying two. So let’s talk about three of them.
I would recommend beginning with my old friend (and future law professor) David Schraub, who gave it some thought two years ago (!) and put his money on Sonia Sotomayor of the Second Circuit Court of Appeals. David points to her bipartisan cred (nominated by George H.W. Bush, elevated by Clinton) and her generally moderate reputation. Of course, this was predicated on the Senate of two years ago, when the threat of Republican stonewalling was somewhat more serious than it is today – but she still has those factors working for her. Bonus political points: she’s got a good up-from-the-South Bronx life story, and she would be the first person of Hispanic descent on the Court. (That is, unless you count Benjamin Cardozo, who was of Portuguese Jewish descent.) For what it’s worth, back in October, Esquire agreed. Here’s a quick briefing from The Hill on a few prominent cases Sotomayor has decided.
The next candidate is Diane Wood, a judge on the Seventh Circuit Court of Appeals and a lecturer at UChicago’s law school (like someone else we know). Wood has something almost as telling as a David Schraub nod – which is to say, some hating from the right. Various pro-life organizations have come out against Wood, citing in particular her dissents in cases upholding partial-birth abortion bans and her ruling that radical anti-abortion activists can be sued under a Clinton-era racketeering statute (later overturned by the Supreme Court, with Souter in the majority). (More on these from the Sun-Times.) Wood is the oldest of the candidates commonly thought to be on the short list, but at 58, she’d still be the second-youngest judge on the court (after Roberts).
Finally, there’s Harvard’s own Elena Kagan, famous for instituting free coffee and a skating rink as the dean of the Law School before Barack Obama hired her as Solicitor-General earlier this year. The Volokh Conspiracy puts out a few good reasons that Kagan might be a likely pick. If she’s the nominee, conservatives will inevitably hammer away at her lack of experience on the bench (just as they criticized her lack of litigation experience when she was nominated for Solicitor-General – although they mostly neglected to mention that Robert Bork suffered from a similar deficiency). Interestingly, Fox News suggested back in February that the plan for Kagan might be to elevate her to the Court – although they thought she might be replacing Ruth Bader Ginsburg. I am tempted to say that I like the parallels here with Earl Warren, who was supposed to hang out in the Solicitor-General spot until he accumulated enough credibility to jump up to the Supreme Court – but I think I’m saying it just to prove I got something out of that Core last semester.
Bonus: the conservatives are already attacking. Get ready, kids.
Judge Wood, who is currently teaching me Civil Procedure II (albeit with a mysteriously canceled class Tuesday!) also most certainly gets a nod from me, as she is drop-dead brilliant.