FIRST ONE @ ONE FIRST

ATL Echoes F1@1F Re: Wood

Posted in Clairvoyance by Mike Sacks on May 5, 2010

Over at Above the Law, David Lat makes the case for Diane Wood as the natural pick for the next justice.  In doing so, he echoes my thoughts as expressed on F1@1F’s first day of existence in late December, as well as in several other pieces I’ve posted since.

Lat’s piece, however, amplifies my thoughts tenfold with his own expertise, personal experience, and colorful commentary.  Give it a read.

Filibustering the Next Nominee

Posted in Clairvoyance, Law and Politics by Mike Sacks on April 5, 2010

The trifecta of recent Justice Stevens interviews has pushed to the fore speculation about his successor.  Such speculation has been going on for quite a while–F1@1F has been at it since its first day of existence.  This weekend, two members of the Senate Judiciary Committee, responded to the interviews with their own thoughts.

From FOXNews.com yesterday:

Senate Minority Whip Jon Kyl, R-Ariz., speaking on “Fox News Sunday,” warned President Obama not to try nominating anyone “overly ideological” to replace Stevens, who is known as the leader of the liberal wing of the court.

He suggested the party did not want anyone so outspoken as Sonia Sotomayor, who was picked to replace former Justice David Souter last year, and said the decision on whether the GOP will filibuster will “all depend” on who the next nominee is.

“I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test,” Kyl said. “And if he doesn’t nominate someone who is overly ideological, I don’t think — you may see Republicans voting against the nominee, but I don’t think you’ll see them engage in a filibuster.”

He said Republicans would only filibuster under “extraordinary circumstances,” the standard agreed to after a series of clashes in Congress over judicial nominees under former President George W. Bush.

At least one Democrat is taking Kyl’s threats seriously.

Stevens told The Washington Post he “will surely” retire while Obama is still president. But Sen. Arlen Specter, D-Pa., told “Fox News Sunday” he hopes Stevens will wait until next year to do it, when the politics in Congress would potentially be a bit less toxic.

“I think the gridlock in the Senate might well produce a filibuster, which would tie up the Senate on a Supreme Court nominee,” Specter said. “I think if a year passes there’s a much better chance we can come to a consensus.”

Back in January, immediately after Scott Brown’s Senate win, I wrote that President Obama may be able to use Republican apoplectic overconfidence to his advantage:

Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.

To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit.  But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.

In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show  that when given a high enough platform and just enough rope, today’s GOP will hang itself.

With Republicans resolving to run on repealing and replacing the PPACA, expect some commentators to reflect Senator Specter’s squeamishness in the face of Senator Kyl’s threats.  They will clutch Massachusetts ballots and wave the Court’s Citizens United opinion so to reveal doomsday visions of insurance companies emptying their freshly unchained coffers into the 2010 campaign on a multimedia effort to smear all incumbents who voted for health care reform as fascistssocialists, and communists.

In response to the GOP’s resolution, Obama told them to “go for it.”  He might as well have been speaking about Republicans’ including any of his possible judicial nominees in their Party of No platform for the midterm election.

Specifically, Obama must understand that if the GOP filibusters or stalls his next Supreme Court nominee into the fall, then the Republicans will be the ones that suffer come the first Monday in October.  If Justice Stevens conditions his resignation upon the confirmation of his successor, then Obama will be able to paint the GOP as a group of blackhearts gleefully depriving a 90-year-old man of his hard-earned retirement.  And if Stevens unconditionally steps down, then a Congressional minority will be held responsible for keeping the Court from operating at full capacity at the start of next term.

In either situation, the Court could become a big issue for the final month before Election Day.   Don’t be surprised if the Chief Justice, facing a massive stack of cert. petitions awaiting the justices for their late September conference, extends his public colloquy with Obama to join him in admonishing the Senate minority to cease playing politics with the Court.

UPDATE: Just as I posted this, Dahlia Lithwick’s latest, “Short Shrift: The Supreme Court Shortlist as Political Anthropology,” popped up in my reader:

As an anthropological document, the Bloomberg News list [of Wood, Kagan, and Garland] reveals a good deal about the general fatigue of the court-watchers. We’ve become so reliant upon the old scripts about “activists” and “umpires” and abortion and religion that we prefer them to experimenting with new ones.

I believe that this latest round will be the last to follow the old scripts, and even then, it may depart from them.

  • Garland will be the only nominee of the three that needn’t depart by choice or force from the old script.  He’s a moderate, and the Republicans will not push hard against him if he’s nominated.
  • Kagan’s nomination will be novel only because she is not, nor has she ever been, a federal judge.  Historically, however, Solicitors General have been commonly put forward for the Court: the last SG to have been nominated was Bork, the last to have been confirmed was Thurgood Marshall.  Still, if you thought that Sotomayor reached a certain kind of performance art perfection in her confirmation hearing stonewall, Kagan’s may be even more fantastically opaque.
  • While Wood is a federal appeals judge, she will be the first full-fledged liberal nominee to the Court since Thurgood Marshall, even if her liberal jurisprudence would have been deemed only slightly left of center in his time.  Further, with her extensive paper trail and Congress’s Democratic majority, Wood may even break the post-Bork spell on fearful, know-nothing confirmation hearings.  If she can finally kill off that bit of the old script, then Obama and future presidents of either party may begin diversifying their Supreme Court shortlists to include other capable nominees, judges or not, who can be confirmed for what they say, not for what they don’t say.

UPDATE II: Newsy.com has compiled a video roundup of the recent Stevens hubbub:

SCOTUSReligion

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 8, 2010

Bob Barnes at the Washington Post has a column today that discusses whether the days of the Court’s religiously-reserved seats are over:

Here’s the kind of question that might violate the rules you learned about proper dinner conversation: Does President Obama’s next Supreme Court nominee need to be a Protestant?

If Justice John Paul Stevens decides to call it a career after he turns 90 next month, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations.

Turns out I’ve violated dinner conversation etiquette several times since I started F1@1F in December.

As I stated on F1@1F’s first day, I believe Obama will nominate Judge Diane Wood to preserve what has now become “the W.A.S.P. seat” when Stevens retires.   For this reason (though not only this reason) I disagree with Tom Goldstein’s prediction at SCOTUSBlog that Solicitor General Elena Kagan will be Stevens’s successor.

In fact, Kagan may have time yet before she gets her much-expected nomination to the bench.  I think Justice Ginsburg’s successor will be a person of color from a yet-to-be represented ethnic group.  Only when Justice Breyer retires will the President seek to preserve the Jewish seat.

By then, however, Kagan’s window may be closed by age or the President’s party affiliation.  And no amount of goodwill Kagan built up among the conservative legal professoriate during her Harvard Law deanship will compel a GOP President to nominate her.

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.

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Conservative Convergence = Liberal Freakout, Cont’d

Posted in Anticipation, Clairvoyance by Mike Sacks on January 20, 2010

Lyle Denniston at SCOTUSBlog writes about how Brown’s election may indeed rattle the Executive Branch if Justice Stevens retires:

[W]hile most legislative observers will be watching for signs of trouble for health care reform and energy legislation, the processing of nominees to the federal courts will be another arena of likely difficulty.

And the next ten months, of course, is the time span during which a Supreme Court vacancy may well occur.  If bipartisanship has any meaning any longer in the Senate, perhaps the President could find nominees who may have some appeal with moderate Republicans.  That almost certainly would translate as nominees decidedly more moderate in their views than the President’s first choice for the Court, Justice Sonia Sotomayor, who has taken a place comfortably in the Court’s liberal wing.  It might even be doubtful that a nominee with views aligned closely with those of Justice Stevens could get confirmed.

With President Obama still having three years to go in his term, Republicans who might be bent on obstructing any Court nominees would probably not be able to hold out long enough to prevent a centrist nominee for the Court from finally getting through.   But a nominee with an identifiable liberal record may well be doomed (assuming that the White House has any lingering interest in that type of choice).

Per Lyle’s forecast, however, Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.

To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit.  But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.

In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show  that when given a high enough platform and just enough rope, today’s GOP will hang itself.

The W.A.S.P. Seat

Posted in Clairvoyance by Mike Sacks on December 30, 2009

In my post below, I warn that not every name I bandied about in my quoted column should have been taken seriously.  One name that must be taken seriously, however, is Diane Wood.  For President Obama, Wood is the perfect successor to Justice John Paul Stevens, should his lagging clerk-hiring be an accurate predictor of his imminent retirement.

First, the basic qualifications: Wood is a well-known liberal judge on the Court of Appeals for the Seventh Circuit.  She was the first person President Obama interviewed for what is now Justice Sonia Sotomayor’s seat on the Supreme Court.  President Clinton nominated her to the Seventh Circuit in 1995 and she took her seat with the Senate’s unanimous confirmation.  She has since emerged as the Circuit’s most identifiable liberal voice amid her famously conservative colleagues, Judges Richard Posner and Frank Easterbrook.  That much had already been widely reported in the weeks following Justice Souter’s announcement of his retirement.

Now, what makes Wood the perfect fit for Stevens’s seat?

  • THE BEST WOMAN: President Obama will nominate a woman.  Period.  But Obama will not want to nominate just any political or legal star.  Unbound by any other identity concerns from his own political coalition, Obama will nominate the very best woman for the job: the woman that no man–or woman, for that matter–can plausibly contend is his inferior.
  • The W.A.S.P. Seat: Justice Stevens is the lone Protestant on a Court staffed by six Catholics and two Jews.  As critical mass has made “the Catholic seat” and “the Jewish seat” irrelevant, President Obama will find encouragement in the irony that by nominating Judge Wood, he is preserving a link to the Court’s–and the country’s–past.  In this sense, she’s a two-fer: the left’s traditional identity politickers can be satisfied with another step towards the Bench’s gender balance while the right’s neo-identity politickers–notably, the Senate Judiciary Committee’s W.A.S.P.s so perturbed by Sotomayor’s “wise Latina” remarks–can take a break from lamenting where their country has gone.
  • PRO-CHOICE: Judge Wood is unabashedly pro-choice.  In Planned Parenthood v. Casey, in which Justices O’Connor, Souter, and Kennedy affirmed a woman’s right to choose an abortion while narrowing Roe v. Wade‘s original protections, Justice Stevens argued that Roe needed no modification.  Judge Wood’s abortion jurisprudence has proven broader than Casey permits: when she creatively sidestepped the Court’s undue burden standard to find that an anti-abortion organization violated the Racketeer Influenced and Corrupt Organizations (RICO) Act through their protest activities, the Supreme Court reversed her, with only Justice Stevens dissenting.
  • A STRONG VOICE: The Court’s liberal bloc will lose its leader upon Justice Stevens’s retirement.  He has long served as a powerful counterweight to the Court’s conservative heavy-hitters.  Judge Wood will bring with her a decade and a half of sparring experience with Judges Posner and Easterbrook, whose intellectual reputations not only stand as tall as those of any of the Supreme Court’s conservative bloc, but also their forceful personalities rival even Justice Scalia’s.  Further, after nominating the prosaic Sotomayor, President Obama will want to put forward a “rock star of the written word,” who, as a Mother Jones reporter described, “Federalist Society members viewed—off the record, of course—as the left’s answer to John Roberts.”
  • NON-IVY LEAGUE: Judge Wood earned her undergraduate and law degrees from the University of Texas.  Currently, Justice Stevens, a Northwestern Law graduate, is the only member of the Court not to hold an Ivy League law degree.
  • UNIVERSITY OF CHICAGO LAW PROFESSOR: Judge Wood taught alongside President Obama on the faculty of the University of Chicago Law School.
  • SEVENTH CIRCUIT: Judge Wood sits on the Seventh Circuit, where then-Judge Stevens served prior to his confirmation to the Supreme Court.
  • AGE: As Joan Biskupic of USA Today noted on her blog today, Judge Wood’s age–she will be 60 this summer–may not be problematic, given that “President Obama has not been seeking younger candidates for the federal bench as GOP predecessors Ronald Reagan and George W. Bush did.”

Of course, these factors only speak to why Obama will nominate her, not to why the Republicans will support her.  They won’t.  Not even if she preserves the W.A.S.P. seat and would, however unlikely, vote less liberally than Stevens.  The Republican Party in the summer of 2010 will see Wood’s nomination as an opportunity to feed raw meat to their pro-life base in anticipation of the mid-term elections.

However, if Sotomayor was Obama’s pick for expanding the Court’s diversity, Wood will be Obama’s pick for bolstering the Court’s progressivism.  After the Republicans put up a near-united front for Sotomayor and Health Care, Obama surely recognizes that the days of gaining a broad consensus vote will not be returning anytime soon.  No matter who he nominates next, the vote will be nearly party line.  And with the specter of losing a sliver of his Senate majority next November, this summer may be Obama’s only opportunity to nominate the perfect successor to Justice Stevens.  Judge Wood’s time has come.

Fun with the Future

Posted in Clairvoyance by Mike Sacks on December 30, 2009

A few months back, Washington Post ran a contest called, “America’s Next Great Pundit.”  I entered.  But rather than do as prompted and write about the issues currently before us, I decided to have fun with the future.  I got rejected.

Take some of the cast of characters with a grain of salt.  But as to the other characters, turn over your hourglass and pay heed to how the grain of salt turns into a sturdy pile of sand.

July 2021

Justice Antonin Scalia, the 85-year-old senior member of the Supreme Court, held a press conference yesterday to announce his retirement.  Stooped over and weakened by three heart-attacks, he symbolized the conservative Court’s decline.

The iconic jurist had hoped to retire upon the election of Senator Eric Cantor (R-Va) to the Presidency.  The votes, however, weren’t there.

“Now I know how [former Justice] Bill Brennan felt,” the Justice chuckled, alluding to the liberal lion Scalia often battled during his early years on the Court.  Thirty years ago, the elderly Brennan suffered a stroke and promptly sent his letter of resignation to a President on the opposite end of the political spectrum.

Sources close to President Cory Booker report that he will make good on the campaign promise to nominate Barack Obama to the first vacancy on the Supreme Court.  Booker’s declaration relegated his Democratic Primary competitors to meek “me too’s” and helped catapult the former New Jersey Governor over incumbent President Biden at the polls.

At a dinner in Tehran with former Iranian President Mousavi commemorating the tenth anniversary of the fall of Ayatollah Khamenei, Obama told reporters that after five years of democracy promotion abroad, he’s ready to return to Washington for a new challenge should Booker nominate him.

“Iran is our ally and has helped make Iraq and Afghanistan the stable states they are today. Global nukes are approaching zero.  Israel and Palestine are partners in peace. We’ve gotten a lot done.  But look, the law is my first love.  And I’ve got a legacy to protect back home.”

But those hoping Obama will unite with Justice Diane Wood, his second Court appointment, to reconstitute the long-lost, full-throated liberal wing of the court will be disappointed.

“My health care legislation has been turned into a money pit.  My Wall Street regulations have turned into financial straitjackets.  After Justice Kennedy retired, my economic-based affirmative action reforms and abortion-control legislation have been in danger.”

Cantor’s quixotic campaign and its landslide defeat finally nailed the coffin on Scalia’s brand of conservatism, but the contested Democratic nomination points to Booker and Obama as the new vanguard of restraint against the Biden administration’s excesses.

If Obama can get his Tehran comments past the progressive members of the Senate Judiciary Committee, Scalia can satisfy himself with the irony that the liberal messiah of 2008 will be resurrected as the figurehead of new conservatism.

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