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May 01, 2009 10:19 PM UTC

Supreme Court Vacancy Thoughts/Odds

  • 37 Comments
  • by: adam.kretz

(SCOTUS Line – promoted by redstateblues)

In light of the comments in today’s Open Thread, I thought I’d post some analysis I’ve done on possible Supreme Court vacancies. I follow this stuff pretty closely, so for those of you who don’t, I wanted to provide a quick rundown of the possible replacements for this seat, and also some future possibilities were Obama to get a 2nd (or 3rd, or 4th) nominee to the Court.

The Supreme Court is an issue that affects ALL Coloradans, and the implications of this nomination will have reverberating affects for the day-to-day lives of everyone who lives in the nation.

I’d put the current odds at this first nominee being a woman at 95%. I’d actually go further and say that, in all likelihood, the first two nominees will be female. Probably about 60-70%.

Here are the favorites for the first seat, with odds, after the jump.

Sonia Sotomayor (3:2): The obvious frontrunner at the moment. Sotomayor was elevated to circuit courts by Bush I, and then to the 2nd Circuit by Clinton. She’s an hispanic, and she’s female. I’m not normally one for identity politics, as many of you know, but the Court is where I distance myself from that opposition. She would be slightly to the left of Souter.

Kim Lane Wardlaw (5:1): Judge Wardlaw is relatively young, and serves on the 9th Circuit (one of the “grooming” circuits for future nominees). She’s also Hispanic, but does have a more liberal judicial record than Sotomayor. She is seen, though, as more “reasonable” from the bench, as Sotomayor’s judicial temperment has in the past been called into question. In all likelihood, she’s someone who would get a 3rd or 4th seat on the Court, but not the first one. She’d be between Stevens and Breyer in current ideology.

Elena Kagan (8:1): Dean of Harvard’s Law School, where Obama was a student. Kagan is also his choice for Solicitor General. Musical Chairs with appointments to the bench isn’t uncommon. Chief Justice Roberts was first selected as an associate Justice, and Souter himself was appointed to the highest court only 2 months after his elevation to the 5th Circuit. Kagan is VERY liberal though, and would become the most liberal justice. She’s undoubtedly, though, one of the 3 most brilliant legal minds in the country NOT currently sitting on the Court.

Those are really the only 3 choices I see as likely. There’s always the propensity for someone to come out of left field (Ginsburg was Clinton’s 11th choice, for example), but if we’re playing the odds, I’d give “The Field” 40:1.

——————

BUT…there will most likely be more openings. Who could fill those? Here are some of the other options, a few of whom people aren’t really discussing but could be interesting political choices.

Kathleen Sullivan: Dean of Stanford Law. One of the foremost Con Law experts in the nation. Would face a very hard confirmation fight: not only is she to the left of Ginsburg, but, if confirmed, she would become the nation’s first openly gay Justice.

Rep. Artur Davis: A fellow Harvard Law graduate who is very close with Obama, being one of his first non-Illinois endorsers. He’s running for Governor of Alabama in 2010, though, and thus would need to lose AND an appointment come after 2011 for real consideration.

Gov. Deval Patrick: Replace “Alabama” with “Massachusetts” and “Rep.” with “Governor” and then just see above.

Sen. Claire McCaskill: Was a county prosecutor and State Attorney General before winning election to the Senate in 2006. A fervent Obama supporter (and avid twitterer…imagine that from the bench), she’d probably be too conservative for a majority of the Dem Caucus to push her to the front of the line. Could be a solid compromise choice, though, were someone like Scalia to resign (since the ideological shift wouldn’t be as drastic as with someone like Sullivan or Kagan).

Chief Justice (GA) Leah Ward: First black and first female Chief Justice of the Georgia Supreme Court. Interestingly, she’s probably the closest ideological match to Souter, and is VERY young (48). She’d be an interesting choice for Obama, as there have been no State Supreme Court Justices elevated to the highest Court in 85 years.

———————

That’s about where things stand right now. Politically, the search for a Justice is falling to Vice-President Biden, which makes Obama’s closeness to a possible nominee slightly mitigated. I think we’ll see 2-3 names by Memorial Day, and a selection by the end of June at the latest. They have until October to confirm the newest nominee before the Court sits next.

Who will Obama select as his first Justice?

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37 thoughts on “Supreme Court Vacancy Thoughts/Odds”

  3.    Would the 39 other Repubs actually oppose her?  

      Obama would be replacing a pro-choice RINO man with a pro-choice RINO woman, and tossing another Republican U.S. Senate seat to the Dems!

      1.    It would continue to demoralize the GOP although I’m sure that Rush et alia would  claim that replacing Snowe with a Dem would be good for the purification process.

          It would also be a hell of gesture for Obama to extend to all those RINOs who supported him.

  4. Kagan next.  Kagan will get some “real-world” seasoning as SG.

    Sotomayor seems to be the name on everyone’s lips right now, and I don’t see any reason she’d get passed by.  Her “temperament” would offset Thomas’s.

    1. I’m sure at this point the thinking in Obama’s administration is that he will probably get three appointments in his first term (Stevens will likely exit next year and Ginsberg sometime after that).

      One more name that has been tossed out there today is Michigan Governor Jennifer Granholm.  The thinking is that Obama would like to have someone who has ran for office.

      1. Souter was kind of unexpected.  Stevens and Ginsberg are almost certain retirements during a Democratic presidency, regardless of how long Obama is in office – if they see things headed downhill, they’ll get out while their replacements are reasonably assured to be along their philosophical alignment.

        I don’t see Granholm getting the nod, though I could be wrong; she just doesn’t have the recent good record that I think would help her over the finish line.

    2. Don’t rule out Ken Salazar.

      Is the Harvard Kagan any relation to the Ivy League Educated newly minted State Representative Daniel Kagan? Probably not but it is an uncommon name.

  5. …in a trashy, guilty-pleasure sort of way (I do it too), I think your characterizations of the these peoples’ purported ideologies is bizarre.  For example, on what basis do you say that Sotomayor would be to the “left of Souter”?  Seems like a right-wing talking point to me.

    1. I do purport right-wing talking points fairly often. Right…

      Sotomayor is considered a swing vote on the 9th, which is considered one of the more left-leaning circuits in the country. I think that in the long run, she’ll shift slightly left, as most of the members of the liberal wing (excepting Ginsburg) have done while on the Court. Souter, statistically, is the 3rd or 4th most liberal Justice. I think that Sotomayor would be similarly placed, but slightly left of him on issues of gay rights, reproduction issues and the fundamental right to privacy.

      Any reasons you think she shouldn’t be characterized this way?

      1. …as you erroneously claim.  That is, she is not on the court “which is considered one of the more left-wing circuits in the country.”  Moreover, even if she were on the 9th, that would prove almost nothing about her specifically because several judges on the 9th are not liberal by any measure.  So, given that your primary asserted justification for labeling Sotomayor is false, what else you got?

        As for my reason why she should not be characterized as more liberal than Souter, I don’t have much.  Thus, unlike you (who also appears to not have much), I have refrained from characterizing her.  

        1. As I did in the initial post, which was my intention. Chill out, it was a typo. The 9th is actually considered more liberal than the 2nd, inasmuch as many have called for it to separate into two courts. They both, though, are considered left-leaning courts in comparison to the rest of the American appellate system (esp. in comparison to, say, the 5th Circuit).

          Despite conservative additions to the Court, (http://www.latimes.com/news/local/la-me-9th-circuit19-2009apr19,0,6190316.story) it does continue to be considered liberal. With 27 active justices, and a possible 9 more to be added, having “several” conservative judges would not preclude the Court from being labeled liberal. I wouldn’t call it “flamingly liberal” or “ultra-liberal” as some identify it as, but I would consider it liberal.

          As a side note: you’ve provided no reasoning as to why these things aren’t the case. You have just asserted that these Courts and Judge Sotomayor are somewhat different than I’ve classified.  

          The 2nd, based in Manhattan, also is considered liberal. Sotomayor’s decisions have run the gamut. Though her most famous decision was preventing a new unilateral CBA from Major League Baseball via injunction in 1994,  (this was on the District Level, though), she has been seen as a left-leaning centrist. Here’s what Esquire says:

          In her rulings, Sotomayor has often shown suspicion of bloated government and corporate power. She’s offered a reinterpretation of copyright law, ruled in favor of public access to private information, and in her most famous decision, sided with labor in the Major League Baseball strike of 1995. More than anything else, she is seen as a realist. With a likely 20 years ahead on the bench, she’ll have plenty of time to impart her realist philosophy.

          A realistic liberal. A good replacement for Souter, but slightly left of him because of her increased scrutiny of business.

          1. And I didn’t dispute that many consider the 9th Circuit to be “liberal;” rather I disputed the notion that identifying a judge to be from the 9th automatically means that he or she is liberal, a distinction that seems to elude you still.  

            And about this you’re somewhat (but not entirely) correct (I’ve never opined about the nature of the “Courts”):

            As a side note: you’ve provided no reasoning as to why these things aren’t the case. You have just asserted that these Courts and Judge Sotomayor are somewhat different than I’ve classified

            I’ve not labeled Sotomayor as liberal or otherwise because the information on the subject is too thin and too attenuated to justify such conclusions.  Thus, unlike you, I’ve refrained from such speculative conclusions about a judge on a intermediate court who is much less able to express her idealogy (if she has any) than a supreme court justice.

            So, therefore, I don’t enjoy the breezy characterizations of Sotomayor as more liberal than Souter.  In addition to being mostly empty, such labels are troublesome because they coincide with the equally ill-informed right-wing criticisms of her.

    2.    The Chambers of Commerce loved him when he authored an opinion limiting punitive damages awards.

        Souter is what the Republicans used to be:  Yankee New England WASPs who believed in small (but not non-existent) government doing certain limited things but doing them efficiently and without a lot of waste and corruption.  

        They believed in low taxes and giving taxpayers a dollar in good and services in return for every tax dollar.  They didn’t expect something for nothing.  That was an immoral idea placed in people heads by Ronald Reagan and carried on by folks like Andrews, Bruce and Caldera.

  6. Thanks for offering this analysis – nice job!

    I think Obama will pick a woman, but among those it will be the brightest and best candidate he can find. That means Elena Kagan of Obama’s alma mater, Harvard Law.

    If not her, I think Leah Ward: the first black female on the court.  

    1. I think that Kagan will get a seat on the Supreme Court. I don’t, however, think she’ll be the first pick (though she does, I believe, have an outside shot at it). Her temperment is better suited for sitting on the bench rather than arguing in front of it as Solicitor General.

      I would be very supportive, though, of a Kagan nomination. She is easily one of the brightest legal minds in the country and would be a big gain for the Court (since Souter himself was no intellectual slouch, and thoughtful to boot).  

  7. …Obama needs a pick that can sail thru the Senate, and in order for that to happen he’s got to pick up some moderate GOP votes.

    Justice Prado gives him that.

    2. 59 Democrats. 60 depending on MN. Snowe, Collins, Lugar, Murkowski and several others won’t filibuster.

      Obama doesn’t need moderate GOP votes. He’ll get some, most likely, but they aren’t necessary. At all. And you give no reasoning as to why they may be.

  8. .

    Now that’s just plain silly.  

    What, you’ve got a magic bean that tells you who has the greatest legal mind ?  

    In truth, the greatest legal minds DO NOT go into politics, and being Dean at Harvard Law is a political (as well as academic) position.

    .

  9. …that have a SCJ that has some understanding of Western issues.  And perhaps someone who is not a Catholic.

    What we have now is band of predominately East of the Mississippi, caucasian, male, Papists.  I’d like to see some more diversity added to the mix.

      1. are Catholic, does it really reflect the diversity of this country?

        I think Scalia and his views are very, very much affected by his Catholicism. Roberts as well, to a lesser extent so far.

        And I say that as a reformed Catholic.

        1. ..Scalia’s devotion to Catholicism in his legal work comes and goes depending on whether it’s consistent with what he wants to do anyway (e.g., the death penalty or social justice).

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