Two Vacancies this Summer?
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:
- 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.
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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.
FIRST ONE @ ONE FIRST 
How about Jennifer Granholm? If he’s picking another former judge to fill a Justice’s seat, I think he should throw a curveball and put in someone with political experience, since we haven’t had one since SOC. Also, if Stevens and Ginsburg retires, I wonder if Obama should do what Reagan should have done with Bork – slip him in as the second nominee right after tiring out the opposition in Congress a controversial one (Rehnquist). Because Reagan went with Scalia, who was largely unopposed at the time, over Bork, Democrats were able to recharge and knock Bork out, ending up with Kennedy instead. So since Wood is likely going to draw a huge amount of heat, what’s your thoughts about slipping a more radical nominee, say Pam Karlan, in behind Wood, and daring Republicans to fight both battles?
I thought about Granholm, but I believe that Obama would only consider her in competition with Wood, not alongside her.
I don’t think Obama will go more radical a la Reagan’s third nomination. Obama could try to mimic the Rehnquist/Scalia one-two punch by putting forward for his first nominee someone the GOP will find objectionable (e.g. Koh’s international law views; Katyal’s representation of Bin Laden’s chauffer), allowing for a party-line vote on that nominee, and then put forward someone otherwise far more objectionable like Wood, hoping that she’d get an overwhelming vote from an exhausted opposition party a la Scalia.
But in today’s climate, I don’t think that would be a wise choice. If the Republicans’ heads overheat over a more moderate nominee, their heads will explode with a more liberal nominee. Today’s Senate Democrats, afraid of the 2010 elections, may not have the political will to withstand GOP vitriol for two immediately successive nominations.
Further still, if Ginsburg does retire, she will certainly coordinate with Stevens so that there will not be two vacancies into November by a filibustering GOP minority. Unless one retires and the other unexpectedly dies–a la O’Connor and Rehnquist–I don’t think we will see a double vacancy this summer.
I’m willing to bet you on that Obama as 3rd Justice, Mike – your choice of bet if reasonable terms. My guess is Koh doesn’t have much of a shot because of the incredible xenophobia and anti-internationalism rampant in our ‘representative institutions.’ Wood or Kagan seems likely enough though. (Or McKeown?)
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