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.
How young? He received his bachelor’s degree in 1991, which makes him 40 years old if he graduated at 21. This should satisfy Obama’s critics on the left who have complained that his nominees thus far have been too old.
How liberal? He is the current Chair of the Board of Directors at the American Constitution Society. This should make Liu a trial balloon for the resistance to be faced by Obama’s chosen successor to Justice Stevens (if he does indeed retire). Of course, there’s a big difference in Senatorial apoplexy between nominating a liberal to 1) a circuit court and 2) the Ninth Circuit; and nominating a liberal to the Supreme Court.