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April 13, 2010

Who might sentencing fans want added to the latest SCOTUS short list?

The question in the title of this post is prompted by this new National Law Journal article headlined "White House Said to Be Widening Search for High Court Nominee."  Here is how the piece starts:

Washington's spin machine cycled into high gear Monday, churning out a new set of names as possible contenders to fill Justice John Paul Stevens' seat on the U.S. Supreme Court.  For months, the list of hopefuls has been thought to include Solicitor General Elena Kagan, Judge Diane Wood of the 7th U.S. Circuit Court of Appeals, Judge Merrick Garland of the D.C. Circuit, as well as Michigan Gov. Jennifer Granholm and Homeland Security Secretary Janet Napolitano.

On Monday, the Associated Press reported that Sidney Thomas, a judge on the 9th U.S. Circuit Court of Appeals, "was one of about 10 people under serious review."  The AP confirmed that Wood, Garland, Kagan, Granholm and Napolitano were on the list.  The wire service, citing an administration official, added former Georgia Chief Justice Leah Ward Sears to the list.  ABC News also reported that Sears is under serious consideration.  Other names floated Monday by various news outlets and blogs included: Secretary of State Hillary Rodham Clinton; Sen. Sheldon Whitehouse, D-R.I.; and Secretary of Commerce Gary Locke, a Democrat and former governor of Washington.

Though speculation about the potential nominee always widens in the day or two after a justice's retirement, the flurry of new names may also signal a genuine effort by the White House to broaden its list.  As one Washington insider close to the nomination process said Monday, "I can almost hear [Obama] saying, 'Who else you got?' other than Kagan, Wood, Garland ... he has to at least go through the motions of a larger search."

In lots of prior posts in conjunction with other SCOTUS opennings, I have long pushed the idea that SCOTUS jurisprudence (and especially sentencing jurisprudence) might be much improved if more members of the Supreme Court had experience as a district judge (or at least had not spent a lot of years as a circuit judge).  As I encourage readers to suggest (realistic?) potential nominees, let me be content to link to just some of this prior commentary rather than reiterate these (tired?) points.

Some related SCOTUS short-list posts (both recent and distant):

April 13, 2010 at 10:33 AM | Permalink


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I propose a judge who has spent at least one night in jail.

Changes your entire perspective.

Posted by: Praga | Apr 13, 2010 3:50:54 PM

Maybe Dawn Johnsen withdrew from OLC so she could take a better job? (kidding)

Posted by: David | Apr 13, 2010 3:58:09 PM

Someone from the state courts. Carlos Moreno of the California Supreme Court was on the consideration list last time.

Posted by: Kent Scheidegger | Apr 13, 2010 5:33:34 PM

The illusion here is that this is about anything but politics. If you want to figure out who it will be, look at the criteria Obama used last time: Who is politically most beneficial, and who can be sold to the country and the Senate as a "moderate" yet be a reliably liberal vote.

Obama is facing a mid-term election that could significantly curb his agenda. He has lost the independents according to a bunch of polls. His best strategy, therefore, is to nominate someone who would unify and energize the Democratic base.

For the reasons I set forth on Crime & Consequences, this is not all that hard to figure out:


No serious person thought that Sotomayor was the very best qualified person in the United States to sit with the Supremes. The reason she got the nod was (1) she helped Obama with Hispanics, and (2) she could be sold as a moderate, since she had been appointed to the district bench by Bush. She was also nominally qualified. In terms of political shrewdness, saleable "moderation," and nominal qualifications, Hillary will do fine. Plus putting her on the Court effectively eliminates Obama's most serious potential primary challenger in 2012, if things really head south.

Posted by: Bill Otis | Apr 13, 2010 6:02:44 PM

I agree with Mr. Otis. Hillary would be a superb choice: very experienced, very tough, and very very smart.

Posted by: anon 13 | Apr 13, 2010 6:11:30 PM

Hillary? Nah, Obama has effectively nutralized her so why put her in a position where she may actually do something that may be contrary to his agenda.

Posted by: Just Saying | Apr 13, 2010 6:38:23 PM

I've heard Hu Jintao is under serious consideration as well. As a known socialist-fascist totalitarian, Obama has long wanted to leave his communist mark on the country by placing a known red in a lifetime appointment position. Also, appointing Hu Jintao would neutralize a world leader that has been a big pain with getting Iran sanctions off the ground.

Posted by: Res ipsa | Apr 14, 2010 11:03:03 AM

I applaud your wish, but the reality is we will probably not even get a nominee who has spent even a day in trial! My wish, which rarely comes true when it comes to judicial appointments, is for the person to be someone who's represented a human being in court at the trial level. Not holding my breath though.

Posted by: David | Apr 14, 2010 12:01:52 PM

There is ZERO chance Hillary Clinton gets nominated.

And I mostly agree with David. I would like to see a Justice who has actually "represented a human being in court" (regardless of whether that court be at trial or appeal).

Posted by: DEJ | Apr 14, 2010 12:17:11 PM

Jeff Fisher would be a terrific Associate Justice.

Posted by: Victor Haltom | Apr 14, 2010 12:29:10 PM

I agree with David. Has any Justice currently sitting on the Supreme Court ever defended a person in a criminal jury trial? I think not.
I prefer a person with political background--a governor or someone from Congress. These schmucks from Yale and the DC Circuit Court of Appeals who clerked for Justice so and so and worked for corporate law firms do not have the average person under their wing.

Hillary did the Children's Defense thing and has political savvy. She gets my vote.

Posted by: mpb | Apr 15, 2010 3:37:58 AM

Hillary's husband created the Prison Industrial Complex concept. He legislated the "Three Strikes" law. He severly limited an inmate's Habeas Corpus rights.

Hillary was the only candidate out of the original 8 or 9 (I forget how many) who was opposed to making the reversal of the crack/powder cocaine disparity retroactive.

I'd like to see Diane Wood get it, but that would leave no one with a heart and a fair mind on the Seventh Circuit.

Posted by: hope4justice | Apr 16, 2010 12:38:50 AM

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