Legal News

Pregaming the Next High Court Nomination

By Ashby Jones

Is it too soon to start talking about who might become the next Supreme Court justice?

Granted, a vacancy doesn’t exist right now, so any discussion will, by its nature, trade in hypotheticals. Still, behind the scenes, writes the WSJ’s Jess Bravin, Democrats gearing up for a possible vacancy are debating a fundamental issue: whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.

The two justices most likely to step down, reports Bravin, are the court’s longest-serving member, Justice John Paul Stevens, and Ruth Bader Ginsburg, the second-eldest justice.

Stevens has suggested that he may retire at the current term’s end in June, when he will be 90 years old. Ginsburg, 76, has said she hopes to emulate her judicial idol, Justice Louis Brandeis, who retired at 83. But Justice Ginsburg’s health issues-she was treated last year for pancreatic cancer-have made preparations for her retirement prudent, officials said.

Some think Obama should appoint somewhat of a liberal idealogue to counterbalance the conservative force made up by Chief Justice John Roberts and Justices Scalia, Alito and Thomas. Chicago law professor Geoffrey Stone thinks that without trailblazing liberals like the late Justices William Brennan and Thurgood Marshall on the bench, “the court is getting this completely skewed internal debate about how to think about constitutional law.” He adds: “That’s bad for the court and bad for the nation.”

But other allies of the president say picking a “Scalia of the left” would be a mistake. A candidate with a sharp liberal record “is such an attractive target for a fight, it could screw up the whole summer,” tying up the Senate and further handicapping the Democrats’ agenda, said a Democrat familiar with the White House’s thinking on judicial nominees.

As a result, the White House is expected to give less-controversial candidates a close look. Two who have been repeatedly mentioned by people close to the process are Obama’s solicitor general, Elena Kagan, 49, and a federal appellate judge, Merrick Garland (pictured), 58, of the District of Columbia Circuit.

Another name often mentioned is Diane Wood, 59, an appellate judge at the Seventh Circuit in Chicago. Wood might trigger a bigger confirmation fight than Kagan or Garland. Still, she is likely to have some prominent conservative backers as well, including former faculty colleagues from the University of Chicago law school.

Bravin reports that any successor to Justice Ginsburg is likely to be a woman, but if Justice Stevens retires, some close to the White House give the edge to Judge Garland, a former assistant U.S. attorney.

Photo: AP

Full post as published by Law Blog - WSJ.com on February 08, 2010 (boomark / email).