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.
He’s too detached and cerebral. Too deferential to Congress. Too willing to compromise. And he’s too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished.
These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.
Rosen continues with a couple of his fantasy scenarios:
It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won’t run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy.
I believe my fun with the future is less fantastical, at least in terms of a Justice Obama timeline. As I implied in one of my very first F1@1F posts, should there be a Democratic President at the dawn of the next decade, Obama is more likely to succeed Scalia than he is to swap himself out for Ginsburg during his own presidency.
Even if my own peyote prediction trumps Rosen’s silly scenarios, the rest of Rosen’s column remains quite compelling. He invokes Justice Brandeis as the prototype for a Justice Obama:
Brandeis, who served on the high court from 1916 to 1939, offers a good model for Obama. Known as “the people’s lawyer,” he was an economic populist, criticizing the “curse of bigness” that led oligarchs such as J.P. Morgan to threaten the entire financial system by taking reckless risks with “other people’s money” and then to demand government bailouts after their bad bets. But Brandeis opposed bigness in government as well as in the private sector, and during the New Deal he preferred regulations that prevented companies from getting too large in the first place — such as the Glass-Steagall Act separating commercial from investment banking — rather than the creation of huge federal bureaucracies to regulate the economy.
On the high court, Brandeis generally stood for judicial restraint, denouncing conservatives for striking down progressive state economic regulations. But he also believed fiercely in the First Amendment and freedom from unreasonable searches. Both a pragmatist and a civil libertarian, he provides a judicial ideal for Obama, whose record resembles his in many respects.
Besides Obama’s judicial qualities listed by Rosen, Obama also has an ambitious vision of his place in history. But he also knows that making history is all in the timing, and he won’t make history by simply becoming a Justice. Even if he’d be the first Justice from Hawaii, he wouldn’t be the first Harvard Law graduate, University of Chicago professor, Senator, African-American, or President to turn up on the Court.
But he could be the momentous fifth vote to turn the Court back to the left. He won’t make that history if he replaces Stevens or Ginsburg. And don’t think Obama doesn’t know that–if Obama has his eye on the Court, of course.
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.
- Leah Ward Sears, former Chief Judge of the Georgia Supreme Court
- Neal Katyal, Principal Deputy Assistant Solicitor General, Georgetown Law professor, and winning advocate in Hamdan.
- Harold Koh, State Department legal advisor, former Yale Law School dean
- Elena Kagan, Solicitor General, former Harvard Law School dean
- Cass Sunstein, OIRA administrator, Harvard Law School professor
- Seth Waxman, Chair of WilmerHale‘s Appellate and Supreme Court Litigation Practice Group, former Solicitor General
- Deval Patrick, Massachusetts Governor, former Assistant Attorney General for Civil Rights
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.
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.
Conservative principles of law-and-order and limited government clashed this morning in United States v. Comstock. At issue was the constitutionality of 18 U.S.C. § 4248, which provides for the federal government’s civil commitment of sex offenders after they have served out their full sentences in federal prisons.
On the one hand, section 4248 keeps off the streets convicted sex offenders deemed by federal authorities to be a continuing threat when they otherwise would be released back into the state where they committed their offense. This much seems wise: if a state is unwilling to exercise its police and public welfare powers by rehabilitating its violent sexual offenders upon their release from federal prisons, the federal government surely shouldn’t just let those deemed a continuing danger to society roam free among, well, society. This is the United States’ position in Comstock.
On the other hand, section 4248 relies on provisions of the constitution that may not authorize such federal action, however wise or well-intentioned. Specifically, Comstock argues that the Commerce Clause and the Necessary and Proper Clause of Article I, both relied upon by Congress in creating section 4248, do not cover civil commitment of criminals when the federal government’s power, through the prison sentence has been exhausted.
Solicitor General Elena Kagan rested her argument for the United States largely on the Necessary and Proper Clause, with barely a nod to the Commerce Clause. That much in itself was a victory for the late Chief Justice Rehnquist’s “federalism revolution,” which, to varying degrees of success, sought to limit the expansive reach of the Commerce Clause to issues more closely connected to interstate commerce than the permissive post-1937 Courts often allowed.
But only Justice Scalia truly seemed to believe that 4248 also strained the bounds of the Necessary and Proper Clause to maintain law and order. Justice Scalia looked to the text of the Necessary and Proper Clause, finding nowhere that it authorizes the federal government to act according to what is “necessary and proper for the good of society.” Rather, he maintained that the clause enabled the federal government’s actions that were necessary and proper to execute another power given to the federal government by the constitution itself. As such, he agreed with what would be the defendant’s argument that the states and states alone are responsible federal prisoners whose sentences have run.
Kagan countered that indefinite civil commitment of sexual offenders under 4248 was necessary and proper to the “responsible exercise of operating the criminal justice system.” On this point–that the federal government needed its own civil commitment regime as a “backstop” for when the state governments refused responsibility for released federal prisoners–Justices Alito and Breyer seemed sympathetic. They peppered G. Alan DuBois, a veteran federal public defender and counsel for Comstock, with hypotheticals about the constitutionality of the federal government’s ability to deal with prisoners who grows more violent while in prison or, in the opposite instance, is injured in jail in an attack by another prisoner as his sentence ends. Per these and several other hypotheticals, Alito and Breyer both seemed to believe that the federal government does have the power to retain custody over prisoners that it deems dangerous to public health and safety, or to themselves, upon their scheduled release from federal custody.
As Justice Breyer persisted in exploring the federal government’s power to set up, for example, national mental hospitals, Justice Scalia clutched his head in frustration: “No, No, No! The Issue is not setting up hospitals, it’s detaining and committing people!” Scalia simply could not believe that any governor or state attorney general, upon receiving a note or a call from the federal government, would deny his or her obligation to civilly commit a sexual offender and rather face the electoral consequences of letting such a criminal roam the state without rehabilitation. Justice Stevens then took the opportunity to look at the statute from the opposite end of Scalia’s looking glass, suggesting that the Court look to the wisdom of the statute and “assume there are cases out there that there is no solution” like Scalia’s belief that all states would naturally accept responsibility for rehabilitating federal prisoners released within their borders.
But DuBois stood firm against Stevens’, as well as Justice Ginsburg’s, apparent approval of the federal “backstop” when states refuse to cooperate. Chief Justice Roberts tested DuBois’s position, asking that “if a state says no” to receiving a released, but still dangerous, federal prisoner, “then the federal government says, ‘you have to’?” DuBois dug in: “Yes, the Constitution requires it.”
Scalia remained astonished that the other justices even entertained the federal government’s claims of responsibility. Noting that states have involuntary commitment procedures, he wondered why the federal government could not simply fund an office that brings state proceedings for involuntary commitment. ”They should do that!” Dubois actually shouted in reply. When Stevens tried to get the Court back to assessing whether 4248 itself was constitutional, Scalia shot back that the statute “isn’t even necessary!”
Towards the end of the argument, Justice Sotomayor interjected with a compromise, asking DuBois if it would be constitutional for a judge to mandate civil commitment for a sexual offender during his trial’s sentencing phase. If such a mandate contained protections to avoid turning indefinite commitment into interminable detention, then it would be constitutional, replied DuBois.
Sotomayor’s trial-judge pragmatism may persuade all but Scalia (and possibly the ever-silent Justice Thomas) to side with public safety over rock-ribbed federalism and uphold 4248 as constitutional. If this happens, then Scalia, confronted with Sotomayor’s aggressive questioning this term and her possible coup over his Melendez-Diaz decision in yesterday’s Briscoe v. Virginia, may finally be meeting his match.
UPDATE: Read the official transcript here and use the comments section to call me out on my own transcription errors.
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.