Back when I started up F1@1F, Kiyemba v. Obama stood to be argued this morning as the next installment of the Court’s Guantanamo cases, following 2008’s landmark ruling in Boumediene v. Bush. The case asked whether a federal judge had the power to relocate into the United States the few remaining Uighurs held at Guantanamo after they were determined not to have been enemy combatants.
But then the Swiss agreed in early February to resettle the remaining Uighurs just before the Government’s brief was due to the Court. Despite some arguing that the Court should still hear the case for the legal issues presented, the Court remanded the case for further review, stating that “[n]o court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.” Five of the Uighurs remain in Guantanamo after refusing multiple relocation offers from countries without established Uighur communities.
Without Kiyemba on the docket, this week has held little promise for F1@1F. I thought about going to this morning’s remaining case, New Process Steel v. National Labor Relations Board, just to see what the line would be like for a case asking whether two people equals three people (really!). But my alarm this morning also woke in me some bleary-eyed clarity: the Court could be handing down major opinions from its October sitting this morning and I would be attending a lunch talk by Judge Diane Wood. I could very well be writing about these things through the afternoon and evening, so I chose to get a few more hours of sleep rather than watch the justices themselves pass out during an argument about an NLRB quorum.
Without writing material from the Court, I went off to see Judge Wood speak at an ACS lunch discussion. Whether she was in DC solely for this event, or if she had some more important matters in DC, no one said. In fact, her talk and the accompanying Q&A focused almost exclusively on Seventh Circuit practice.
The only noteworthy quotes came from Tom Goldstein of SCOTUSBlog, who, in introducing Judge Wood, recognized the “undeniable subtext” of why I and nearly all of the Supreme Court press corps was in attendance: “if the stars align and the Left shows some guts, Diane Wood should be on the Supreme Court.”
It was a necessarily glowing, but no less sincere, introduction from the man who predicted last month that President Obama would pass over Wood for the younger, more confirmable Elena Kagan. F1@1F, however, continues to maintain that Wood will be the next justice should Justice Stevens retire at the end of this term.
Even though I left the talk without a story, it was good to have a potential before-she-was-a-justice moment. Still, here’s to a more fruitful next week for F1@1F.
Finally, two bits of miscellaneous debris from yesterday:
- ABC’s Ariane de Vogue wrote yesterday about Goodwin Liu’s nomination to the Ninth Circuit, with a sub-headline of, “Contentious Hearing for Lower Court Nominee to Foreshadow High Court Battles to Come.” The article reports out and builds upon what I observed here in January.
- The Atlantic’s Marc Ambinder has a “you heard it here first” post about Ben Mizer, Ohio’s Solicitor General. Ambinder seems to suggest deeply between the lines that Mizer, who argued before the Court yesterday, stands a chance well down the line of becoming a Justice.
UPDATE: Dahlia Lithwick makes me wish I went to this morning’s case after all…
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.