FIRST ONE @ ONE FIRST

Two Vacancies this Summer?

Posted in Clairvoyance by Mike Sacks on February 4, 2010

ABC’s Ariane de Vogue writes:

Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring.

Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.

I do believe Stevens will retire and that Judge Diane Wood will be his nominated successor.  But I deeply question that Ginsburg intends to step down.  As National Law Journal’s Tony Mauro reported a little over a year ago (and, due to a paywall, as conveyed by the WSJ Law Blog):

Not so fast, says Mauro. “If anyone asks you, ‘When is she retiring?’ ” Ginsburg reportedly said at a law clerks’ reunion last June, “tell them I have a great role model in Justice [John Paul] Stevens, who is going strong at age 88.” Ginsburg, 75, would have to sit on the bench until 2021 to match Stevens’s tenure.

However, Ginsburg’s health scares since then, including pancreatic cancer and a spill on an airplane, may have changed her mind.  If so, I submit the following prospects:

After Obama’s firefight with the GOP over the very liberal and quite white Judge Wood, he will send up a moderate/center-left nominee of color. Hence Ward, Katyal, and Koh.

Because Breyer will remain on the bench if Ginsburg retires, there will be no need to fill the “Jewish seat.”  That puts Kagan, Sunstein, and Waxman on the back burner for the third vacancy.  And only Kagan will be young enough to be nominated by then, given the present robustness of the other justices in the over-70 club (Scalia, Kennedy, Breyer).

Patrick is at the bottom because he is running for reelection this year and I believe Obama will choose a black woman before he puts another black man on the Court.  After all, I think Obama himself may be the Court’s third male African-American justice after he leaves office.

—-

UPDATE: Since this writing, I’ve been somewhat disabused of my Harold Koh suggestion.  Let me offer Denny Chin and Goodwin Liu as two other possible Asian-American nominees for when Ginsburg steps down NOT this summer.

Bookmark and Share

Follow

Get every new post delivered to your Inbox.

Join 114 other followers

%d bloggers like this: