FIRST ONE @ ONE FIRST

A Difficult Case, Indeed

Posted in Case Reports by Mike Sacks on February 23, 2010

This report is cross-posted at the ABA Journal’s website.  Read here, read there, comment and share everywhere!

Early in this morning’s oral argument in Holder v. Humanitarian Law Project, Justice Anthony Kennedy plainly remarked, “this is a difficult case for me.”  The issue was whether a 1996 federal law banning “material support” to designated terrorist organizations infringed on the First Amendment rights of a group seeking to train Turkey’s Kurdistan Workers’ Party (PKK) and Sri Lanka’s now-defeated Tamil Tigers in international law advocacy and peacemaking.

But Kennedy’s pondering the disputed law’s ephemeral distinction between proscribable conduct and protected speech appeared to come to an abrupt halt when Solicitor General Elena Kagan conceded to Justice Kennedy that the law could ban lawyers from submitting amicus briefs on behalf of designated terrorist organizations.  Here was the government telling attorneys who they could and could not represent in a court of law–not a winning argument before a tribunal of, well, attorneys.

The Court’s liberal bloc–Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor–had already displayed their skepticism towards the government’s asserted ability to criminalize speech meant to assist a terrorist organization’s legal activities.  Sotomayor even suggested that “[u]nder the definition of this statute, teaching these members to play the harmonica would be unlawful.”

In response Kagan quipped, “I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas.”  Justice Antonin Scalia, the lone vocal supporter of the government’s argument, saved the Court further talk of harmonicas by shoving Sotomayor’s hypothetical into an absurd vision of chief 9/11 hijacker “Mohammed Atta and his harmonica quartet” touring the country to “make a lot of money.”

Meanwhile, Justice Clarence Thomas just this week marked his streak of silence’s fourth anniversary, but one could assume he’d ally with Scalia in this case, given his previous willingness to prohibit intensely disfavored expressive activity by casting it as pure conduct.

If Kagan’s amicus-ban assertion seemed to crystallize for Kennedy the infirmity of the law in question, Justice Alito may have fallen off the government’s wagon when Kagan explained that Congress did not intend to criminalize one’s meeting with or joining a designated terrorist organization.  Queried Alito:

Could you explain how someone could be a member of one of these organizations without providing a service to the organization? Simply by lending one’s name as a member; that might be regarded as a service. If you attended a meeting and you helped to arrange the chairs in advance or clean up afterwards, you would be providing a service to the organization.

However, Alito may have asked this question simply to get Kagan to walk back her distinction between simple membership and criminal service-providing so that he could more easily side with the government.  After all, he was the sole supporter of the government’s position in United States v. Stevens, in which the Court is likely to rule a federal ban on depictions of animal cruelty to be an unconstitutionally overbroad restriction on speech.  But walk it back Kagan did not.

Even if Alito still finds a way to join Scalia, even if the loquacious Kennedy forgets that lawyers may be silenced, and even if silent Thomas sides at conference with Sotomayor, Chief Justice Roberts signaled an openness to killing the law as applied to HLP.  That is, as long as the Court got no government blood on its hands.

During HLP counsel David D. Cole‘s rebuttal, Roberts asked, “why don’t we remand it to the lower courts to apply strict scrutiny if we agree with you that” the law does, in fact, prohibit pure speech as opposed to conduct that incidentally touches speech?

Cole quickly endorsed this plan, knowing that strict scrutiny is nearly always “strict in theory, but fatal in fact.”

But just as soon as Chief Justice Roberts offered up a pleasing resolution for this “difficult” case, Justice Sotomayor jumped in to close the morning with the argument that if money is speech–as the Court strongly affirmed in Citizens United–then Congress could have been onto something after all when it found that money is so fungible that “if you give [terrorist groups] money for legitimate means…it’s going to be syphoned off and used for illegitimate means.”  Such a justification for a ban on money-as-speech, Sotomayor suggested, could be “enough under strict scrutiny or under a lesser standard, reasonable fit standard.”

Perhaps Sotomayor believed this, perhaps she was trying to impress upon her conservative colleagues the duty they owed to HLP if they were to remain fully faithful to the First Amendment principles they forcefully articulated in Citizens United.

Either way, Sotomayor’s mixed signals forced the Court to submit HLP the same way it entered: a difficult case, indeed.

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Sotomayor @ SNL

Posted in Non-justiciable by Mike Sacks on January 31, 2010

Faux-Soto’s got a point: “Just imagine if I mouthed off like that!”

Vodpod videos no longer available.

SOTU: POTUS v. SCOTUS

Posted in Justicespotting by Mike Sacks on January 27, 2010

Present at tonight’s State of the Union address: Chief Justice Roberts and Justices Kennedy, Alito, Ginsburg, Breyer, and Sotomayor–who put on her neck doily for the occasion.

But the big news belongs to Justice Alito’s reaction to the President’s taking the Court to task for Citizens United. Here’s what Obama said:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Moments after I took this photo, Justice Alito shook his head and mouthedNo, that’s not true,” becoming the only non-impassive face in among the robed.  Watch here at 48:35.

NYT’s The Caucus blog agreed with Alito:

But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.

Here’s more from Politifact.com.  So let’s not be so fast to call this Alito’s “Joe Wilson Moment.”  Last year Wilson had no proof to shout that Obama lied.  Even if Alito broke from the justices’ traditional SOTU decorum, he certainly knows what Kennedy’s majority entailed and what it didn’t, however it may have been characterized by Stevens in his dissent.

For the Justices’ actual words on foreign companies’ contributions, see Kennedy’s opinion at pp. 46-47 and Stevens’s dissent at pp. 33-34.

UPDATE: Alito’s break with decorum made it to Wikipedia for a split second (h/t Scott Hechinger, NYU 3L):

During Barack Obama’s January 27, 2010 State of The Union Address, Justice Alito can be seen shaking his head in the negative and uttering the words “That’s Not True.”

Also, Ben Smith at Politico has the stand-alone scene.

Kennedy Doesn’t Like to Watch

Posted in Case Reports, Clairvoyance by Mike Sacks on January 13, 2010

The Court just issued its first party-line, 5-4 opinion of the term, staying the broadcast of the Prop. 8 trial underway in California to federal courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena.*  Read SCOTUSBlog’s write-up and download the opinion here.

The majority paints its decision in procedural terms, though I find it difficult to believe that the vote would break down similarly if the potentially broadcasted case’s substance was, say, tax evasion.  In such a case containing no hyper-charged political pretext, we could have very well seen a nearly-unanimous vote one way or the other.

Also, note Sotomayor’s vote with the dissent.  If Souter’s distaste for Supreme Courtroom cameras extended on down to the district court level, perhaps he would have voted with the majority, lending the decision a modicum of integrity.

Finally, I am intrigued as to whether this opinion says anything about Kennedy’s potential vote should (when, really) Perry v. Schwarzenegger comes up to the Court.  While one can be fairly certain that the other eight justices voted their policy preferences for Perry‘s underlying issue, something tells me that Kennedy remains eminently swingable.

On the other hand, Kennedy’s vote with the majority today could mirror his abortion jurisprudence.  That is, just as he upheld abortion rights in Casey only to limit its reach in Gonzales v. Carhart, so too could marriage exist beyond the bounds of Kennedy’s gay rights rulings.

*Thanks to commenter Mark for correcting my original statement that the Court stayed the YouTube broadcast.  They didn’t.  But the Court’s temporary stay may be the functional equivalent of a permanent stay on all broadcasting, writes Linda Hirschman for NPR/The Nation:

As a technical matter, the temporary stay is only good until the Court addresses a formal appeal for a permanent stay. But the standard for extending the temporary stay includes the requirement that the court thinks a majority of its members would vote in favor of making the stay permanent. So this 5-4 division looks like the ball game.

Post-Needling

Posted in Case Reports by Mike Sacks on January 13, 2010

Today’s argument in American Needle Inc. v. NFL offered two lessons to the packed courtroom: first, the Solicitor General’s office can rob both parties of a clear victory; second, if Justice Breyer isn’t kept on a tight leash, he will crack jokes all morning.

American Needle was a hotly anticipated case that asked whether the thirty-two teams in the NFL served as a single entity when they granted Reebok an exclusive license to market NFL apparel.  American Needle, Inc., a sportswear company that once did business with the NFL, argued that the NFL violated the Sherman Antitrust Act because the league’s thirty-two teams, all independent companies, acted together to limit the market in their agreement with Reebok.

Whereas American Needle petitioned for certiorari seeking a reversal of the Seventh Circuit’s holding that the NFL constituted a single entity for intellectual property and trademark purposes, the NFL, rather than oppose American Needle’s petition, decided to run up the score.  It urged the Court to grant certiorari and expand the Seventh Circuit’s holding beyond trademark and intellection property.  NFL wanted the Supreme Court to find that the league is a single entity in general, which could potentially shield the NFL from anti-trust scrutiny.

Faced with these two extremes, the Court called for the views of the Solicitor General’s office, which responded in amicus by adopting the Seventh Circuit’s more modest approach.  This morning, the Court made clear its ambivalence towards both parties’ arguments, suggesting its ultimate allegiance to the Solicitor General’s approach.

Indeed, at no point did any justice clearly come down for or against either party.  Rather, they all seemed interested, though non-committal, in testing the limits of the rule of reason–antitrust law’s case-by-case balancing test to determine what is and isn’t an unreasonable restraint on the market–in NFL teams’ relationship with the league itself.

For instance, during American Needle’s argument, Justice Alito wondered whether certain teams, under NFL’s rules, are allowed to schedule more games for themselves to get more money.  Chief Justice Roberts inquired whether the NFL’s rules and regulations are horizontal rules among the teams or issued by a single, central entity.  Justice Stevens followed up by exploring–and subsequently repeating throughout the argument–the idea that NFL’s licensing agreement with Reebok could actually have an overall “pro-competitive” effect on the market by giving more public attention, and therefore more sales, to less popular or successful teams.

Glen Nager, American Needle’s lawyer, responded by stating that the anti-competitive aspects of the NFL’s control over each team’s merchandizing outweigh the possible pro-competitive situations.  Teams, Nager argued, should get together to forge an agreement in which each team will individually market its own logos.

And this is when Crazy Legs Stevie Breyer grabbed the ball and ran.  After fumbling to think of the Patriots’ arch-rival, first settling on the Saints, and then inventing inter-sport play by replacing the Saints with the Red Sox, Breyer threw up his hands and proclaimed, “I know baseball better.”  Laughter filled the Courtroom.  And for the rafter-swinging Breyer, who scans the audience with satisfaction after almost every one of his questions, laughter proves a potent drug:

Breyer: I don’t know a Yankees fan who will take a Red Sox sweater if you gave it to them!

Nager: A three-year-old could be persuaded.

Breyer: They have very small allowances, those three-year-olds.

Irked by his roadshow adversary‘s getting all the guffaws, Justice Scalia grumbled, “Why am I worried about this other stuff?”  Nager dead-panned: “because Counsel has an obligation to engage justices’ questions.”  After making the case for the relevance of his comical questions, Crazy Legs Breyer took himself out of the game, giving Nager permission to “blow off” his questions.

By the time Gregg Levy, the NFL’s lawyer, took to the lectern, the courtroom had returned to its silent decorum.  Levy argued that, among other reasons, the NFL deserved single entity status because its primary purpose is to centrally and cohesively promote the game of football as authorized by all thirty-two teams.  Justice Scalia did not buy that line and pithily stated that the NFL’s purpose–particularly through its licensing deal with Reebok–“is to make money.”  Sotomayor piled on: “you are seeking through this hearing what you haven’t got through Congress: an absolute bar to anti-trust claims.”  Yet the old ambivalence soon overtook the momentary shot of antagonism.  The justices went back to their exploration of the rule of reason and Scalia admitted that the individual teams constituting the NFL would be “worthless if the NFL disappears.”

American Needle came into the Court as potentially transformative of sports law, if not anti-trust law in general, but by the time Chief Justice Roberts banged his gavel and submitted the case, it was clear that the case, to switch to Justice Breyer’s sport of choice, would be sent back down to the minors for further development.

UPDATE: The official transcript is available here.  Excoriate my own transcription prowess in the comments.

Post-Comstocking

Posted in Case Reports by Mike Sacks on January 12, 2010

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.

Orthogotive?

Posted in Case Reports by Mike Sacks on January 11, 2010

Briscoe has been argued and submitted.  A few quick impressions:

1) Justice Sotomayor owns this case. The general sentiment among those in the know who were standing out in the cold this morning was that this case would be decided by Justice Sotomayor.  If there was any doubt, Sotomayor herself put it to rest at argument.  She came out swinging as the first justice to question the advocates for the petitioners and respondent.  She appeared to be carving a middle path between the majority and dissent in Melendez-Diaz. To Briscoe’s lawyer, she emphatically stated, “I trust the trial process,” signaling her former prosecutor/trial judge’s sympathy to Virginia; yet she asked Virginia’s lawyer how the Court could articulate a rule that would satisfy Briscoe and seemed bothered by Virginia’s assertion that a trial by affidavit would satisfy the Confrontation Clause.

2) Justice Scalia isn’t budging. It took until the end of the argument, but Scalia made his displeasure clear to the entire courtroom, interrupting Virginia’s counsel to ask, “Why is this case here?”  That question, he noted, wasn’t directed towards the Commonwealth; it was for the Court.  Melendez-Diaz made Briscoe redundant, so the only reason Briscoe was before the Court was to overturn Melendez-Diaz on a “spite cert” (my term, not Nino’s) by Melendez-Diaz’s four dissenters.

3) Breyer is budging. Justice Breyer was in the dissent in Melendez-Diaz, but seemed receptive to Sotomayor’s difference-splitting as a way to limit Melendez-Diaz without overturning it.  Indeed, he tipped his hat to stare decisis, demanding Virginia justify its statute under Melendez-Diaz even after he “laid his cards out on the table” that he didn’t agree with the case.

4) The case may not be a simple 5-4. Sotomayor’s difference-splitting may be enough to get a broad majority to affirm the core of Melendez-Diaz, which held that if the prosecution seeks to introduce a forensic report, the lab technicians must be made available as live witnesses for defendants to cross-examine.  Such a majority would discard Scalia’s formalistic requirement that the witness must be the prosecution’s.  At argument, justices from both sides of the Melendez-Diaz divide seemed to accept that Virginia may construct an efficiency-oriented statute that allows for the defendant to call a lab technician to the stand as an adverse witness, provided that Virginia not only bear the costs of presenting the witness, but also suffer the consequences if the witness no-shows.  Up to seven justices could be satisfied by such a scheme, as Scalia (and probably Thomas) will likely refuse to modify Melendez-Diaz.

5) Alito and Ginsburg agree: GVR. At the end of the argument, both Justices Alito and Ginsburg asked Richard Friedman, counsel for petitioner-defendant Briscoe, why the Court shouldn’t just Grant, Vacate, and Remand the case back to the Virginia Supreme Court to test whether its former statutory scheme adequately protected Briscoe’s right to confrontation.  If these two, who were on opposite sides in Melendez-Diaz, can agree, then perhaps the rest of the Court could, too.  Even Scalia would be happy to do so: the Court would avoid chipping away at Melendez-Diaz, and he would not have to waste his time firebombing his colleagues on Briscoe‘s merits.

6) Orthogotive? Richard Friedman busted out a word that none of the Court had ever heard.  He repeated it several times, but I remain unclear what the word was.  I will wait for the Court’s official transcript.  Until then, I will relish the memory of a Supreme Court lit up with the excitement of learning a new word.

More later: I’ve been up since 3am!

Sotomayor’s Imminent Impact

Posted in Anticipation, Clairvoyance by Mike Sacks on January 4, 2010

The WSJ Law Blog calls its readers’ attention to a New Yorker feature on Justice Sotomayor:

[W]e were delighted to open our digital copies of the New Yorker this week to find a lengthy and wide-ranging article about Sotomayor. The timing, in our minds, couldn’t have been better.

The article, by reporter Lauren Collins, is worth reading for a host of reasons. But for our money, the piece is a standout largely due to the nuance with which it treats its subject. She’s eminently personable, but has already raised eyebrows with her aggressive questioning from the bench. She’s a stickler for preparation, but isn’t averse to letting down her hair as well. She’s a liberal given to quoting the likes of Carol Gilligan, but still rules for the prosecution the vast majority of the time.

To me, the timing couldn’t be better particularly because of this final point.  On Monday–F1@1F’s first, freezing day in line–the Court will hear Briscoe v. Virginia, and Sotomayor could very well be the fifth vote to reverse last year’s 5-4 decision in Melendez-Diaz v. Massachusetts.

Melendez-Diaz held that the Sixth Amendment’s Confrontation Clause requires prosecutors to put forensic analysts on the witness stand rather than simply enter their lab reports into evidence.  Justice Scalia wrote the for the majority, in which he was joined by Justices Stevens, Souter, Thomas, and Ginsburg.  Justice Kennedy dissented for himself, Justices Breyer and Alito, and Chief Justice Roberts.  As we all know, Souter has since been replaced by Sotomayor.  Importantly, she is a former prosecutor whose Second Circuit record is friendlier to the prosecution than Justice Souter’s criminal law jurisprudence.

Whereas Scalia and Thomas sometimes find that their originalism incidentally leads them to liberal results, such as in Confrontation Clause cases, Stevens, Souter, and Ginsburg had long established themselves as friendlier to criminal defendants than to their government prosecutors.   Meanwhile, in Melendez-Diaz, Roberts, Kennedy, and Alito voted for conservative law-and-order principles, but Justice Breyer’s pragmatism led him to contest that Scalia’s holding would be simply too heavy a burden on the system.

For Scalia, his Constitution wins regardless of the practical effects.  But Briscoe addresses the concerns that Scalia ran roughshod over in Melendez-Diaz, suggesting that Scalia’s Confrontation Clause ideals have their limits.  By forcing governments to expensively transport their limited numbers of lab technicians all over the place, Melendez-Diaz could consequentially require the technicians not only to spend more time on the stand than in the lab, but also lead to hairy procedural defaults when a single analyst’s work for different cases comes to trial in several courtrooms at once.

As a trial and circuit judge, Sotomayor exhibited the law-and-order streak and experience-based pragmatism that animated the Melendez-Diaz dissenters. Briscoe is Sotomayor’s first test over whether she will bring her Second Circuit preferences to the Supreme Court.  If she does, Melendez-Diaz will fall after only one year as precedent, even if her eight senior colleagues don’t budge.

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.

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