Daniel Foster is backed up in "the corner" at the National Review Online in
Is the Conventional Wisdom Wrong on Obama’s SCOTUS pick? and writes:
"... Christina Bellantoni at TPM has it from an administration official that the president feels no pressure to pick from the center-left. Obama, the official says, feels "liberated" by his certitude that Republicans will fight whomever he nominates:"
An unconfirmed rumor even has it that the LawPundit is being considered for the post, but let me assure you, that you can put your fears aside that a totally impartial person --
the hallmark of an optimal judge -- will be nominated: in fact, the best qualified individual is sometimes simply not selected for the Supremes -- just think of the late Judge Learned Hand, who was never nominated --
for political reasons, of course.
Besides, as a Protestant, I would have little motivation to become a token minority figure on a diversity-packed Court.
So what about the other candidates?
LADIES FIRST
Why or why not Elena Kagan?
She is considered the current frontrunner for the position, and there is a rave review from
Larry Lessig about her from last year -- but I am not sure that the qualities isolated there make her a good Supreme Court choice (to quote Lessig, "she is not an oral advocate", "she knows the administration cold", "she has an extraordinary ability to productively engage disagreement", "Elena is loved by everyone", "a straight talking, brilliant strategist and strong negotiator", "holds herself to insanely high standards"). Obviously, this is a skilled "people" person with outstanding "EQ" skills, but I am not sure that those skills necessarily represent the Justice we need. Kagan might do better to run for President.
From the diversity standpoint of course, the Khan of Khans
Elena Kagan is not only Jewish but a woman as well, who, prior to her current post as Solicitor General of the United States, as dean of the Harvard Law School only had women on her staff, a special kind of "affirmative action" which will probably "trend" well in some circles. We are not knocking Kagan -- as Dean of HLS we would have an all-woman staff ourselves, if we could get away with it.
In any case, is there any wonder that Kagan was followed by
Martha Minow at HLS? Believe me, I am a fan FAN of the ladies -- more power to them,
also politically. But would the nomination of Kagan be CHANGE? Hardly. Kagan reeks of the "establishment".
Why or why not Martha Minow?
As written by Michael Kranish of the Boston Globe in
Harvard Law dean considered for Supreme Court, Martha Minow is also a possible candidate, especially since she has a special relationship to the President. As Samuel Gordon writes in
Obama and the Jews: An inside perspective:
"I remember especially the night I attended a dinner in Chicago for the organization, Facing History and Ourselves. The program included Senator Barack Obama speaking with students from two Chicago high schools. One of the young students posed this question:
“Senator Obama, why did you decide to give up the benefits of a career in a corporate law firm on Wall Street and instead choose public service?”
Senator Obama responded: “When I was at Harvard Law School I had a teacher who changed my life---Martha Minow.”
I happened to be sitting at the table with Martha Minow, her parents, my good friends Newton and Jo Minow, and Abner Mikva. All of us sat there in amazement and with great pride in Martha. Martha Minow, as a law professor at Harvard, had told her father that the brightest, most talented law student she had ever had was a young man named Barack Obama."
From the diversity standpoint of course, Minow is not only Jewish but a woman as well, which speaks for her, but she is much too specialized to warrant Supreme Court nomination. Minow is an expert in the law of human rights. Key words and phrases in her list of publications at the
Dean's page at Harvard Law School are: "government by contract, pursuing equality, holding soldiers responsible for abusive conduct, tolerance, terror, exemption of religious groups from civil rights laws, privatizing military efforts, vengeance and forgiveness, genocide, mass violence, inclusion, exclusion". Her nomination would never be approved by Congress and her nomination would stoke divisiveness. This is not the kind of CHANGE Obama needs.
Why or why not Leah Ward Sears?
As written at
the Historymakers.com:
"The Honorable Leah Ward Sears became the first woman and the youngest person ever to become a Georgia State Supreme Court Justice. Sears was born on June 13, 1955 in Heidelberg, Germany. She grew up traveling the globe with her family and father, Colonel Thomas Sears, who served as Master Army Aviator in the U.S. Army. The family eventually settled in Savannah, Georgia, where she attended elementary and high schools. In 1976, Sears earned her B.S. degree at Cornell University and moved to Atlanta, where she attended Emory University to earn her J.D. degree. Read the rest here.
There may come a day when a black woman Justice will be nominated for the Supreme Court -- that would be CHANGE -- but we doubt greatly that it would be successful right now in the present political climate. Obama must first assuage the Protestants in the land -- so our opinion.
Why or why not Diane P. Wood?
As written at the
Wikipedia:
Wood lives in Hinsdale, Illinois and is Protestant." [emphasis added by Lawpundit]
My own wife plays the oboe and English horn and especially the oboe is very difficult to play. The oboist can be the most highly paid member of a professional orchestra (see
New York Times and
Time Magazine). As Daniel J. Wakin of the New York Times in "
Suddenly, 'Oboist Wanted' Signs Are Everywhere" has written:
"They are the principal fiddle of the wind section," said Paavo Jarvi, the music director of the Cincinnati Symphony Orchestra. "There is a musical and moral authority that comes with the position." The principal oboist is often seen as "the second concertmaster of the orchestra," he said. ...
"Being a solo oboe player, you are basically playing a concerto every night," Mr. Jarvi said. "... You have to have nerves of steel. ...
Mr. Robinson of the New York Philharmonic said ... "In any generation there are only a certain number of people who have all the requisites for this type of position," Mr. Robinson said. "They must be imaginative, persuasive, artistic personalities." [emphasis added by LawPundit]
Oboists, as noted above, need nerves of steel. Wood should have no problem surviving the confirmation process. She was one of the first women to clerk at the Supreme Court -- no easy task.
Is this CHANGE? In a way, yes. Wood is located in Obama's own territory at the University of Chicago and the 7th Circuit, not a hotbed for previous Supreme Court nominations, while her education at Texas Law School would break the long-standing modern stranglehold of Yale, Harvard and Stanford Law Schools on the Supreme Court. Just for good measure, Texas is also important electorally -- sort of a beneficial "side-effect".
Wood also has a major advantage over other candidates -- from a diversity point of view, not just because she is a woman.
Retiring Justice Stevens is a Protestant, and he is the last of the Protestants on the Supreme Court if he is not replaced by a Protestant -- and this is a long-term political ballgame in which President Obama does not want to lose many future voters, especially since Protestants form the majority of the American electorate. Obama's appointment of a Protestant now would also free his hand much more for a less conventional Supreme Court appointment in the future, e.g. in the event of a Justice Ginsburg retirement, where Obama could then even nominate a black female to the empty seat, which we consider a likelihood down the road. Sears hears?
On a plus and contra basis, Wood looks to us like the best selection even though we disagree with her dissent in
Christian Legal Society v. Walker,
[1] 453 F.3d 853 (2006), where the decision is admittedly a close call, given the precedents.
And Now to the Gentlemen
What about Merrick B. Garland?
According to the
Washington Post:
"He is a favorite of the Washington legal establishment, widely praised by lawyers and other judges for his well-reasoned and generally moderate opinions. "
Garland has strong credentials, having graduated first in his class at Harvard as an undergraduate and with honors from Harvard Law School (see the
Wikipedia and the
New York Times Topics). President
Bill Clinton first nominated
Garland as judge on the D.C. Circuit Court of Appeals for a seat vacated by
Abner J. Mikva, but the confirmation languished for political reasons, and then Clinton renominated him for the same court later, leading to his confirmation. Garland is Jewish. The
Wikipedia tell us:
"Considered a judicial moderate, Garland told senators during his U.S. Senate Judiciary Committee hearing in 1995 that the U.S. Supreme Court justice for whom he had the greatest admiration was Chief Justice John Marshall, and that he had personal affection for the justice for whom he clerked, Justice William Brennan. "Everybody, I think, who hopes to become a judge would aspire to be able to write as well as Justice Oliver Wendell Holmes," Garland told the committee at that time. "None are going to be able to attain that. But I'll try at least—if confirmed—to be as brief and pithy as he is.""
Garland is a real
judge's judge and is surely the selection of choice for many of those who support the nomination of judicial experts to the Supreme Court, rather than the nomination of people who are politically well-situated. However, Garland may lack the charisma that is required to get a nomination, and there is not a lot of buzz about him online. What would he add to the court that is already not there?
What about Cass Sunstein?
Sunstein is a brilliant scholar, many of whose ideas we support, but the extremely unorthodox nature of some of his views make it impossible that he would ever be nominated or confirmed for a Supreme Court position. That is the way of the world.
Our conclusion: the nomination can only be
Wood or
Garland and we go with
Wood.
Envelope please....
