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February 15, 2010

Any Presidents' Day advice for Prez Obama on likely upcoming SCOTUS nominations?

As detailed in this National Law Journal article from Tony Mauro, which is Talk Grows of 2 Openings at High Court: White House reportedly preparing for more Supreme Court exits," the buzz surrounding possible SCOTUS openning(s) continues to grow.  Here is the start of Tony's interesting and effective piece:

If two U.S. Supreme Court vacancies materialize this spring, they may have the same impact on the nation's capital that two heavy snowfalls have had this month: gridlock, paralysis and frayed tempers.

Stories raising the possibility that justices John Paul Stevens and Ruth Bader Ginsburg may leave at roughly the same time have suddenly become part of the Washington conversation, already fueling nightmare scenarios of dragged-out battles between a weakened President Barack Obama and a fiercely contentious Senate over possible replacements.

"Republicans are out for blood, and Democrats are out for a fight," said Steve Wermiel, professor at American University Washington College of Law. "We're close to a peak of partisan wrangling in Washington."

Speculation about potential nominees has already begun, with Solicitor General Elena Kagan and Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit winning the most mentions at this early stage. Secretary of State Hillary Clinton is also the subject of growing speculation as a possible nominee.

In a number of prior posts (some of which are linked below), I have urged readers to provide advice (or predictions) about whom President Obama should nominate for any open SCOTUS seat.  In this post, I would be eager to hear reader advice to President Obama concerning how he should try to respond to one or two open SCOTUS seats.

Specifically, do readers think Prez Obama should try to name a replacement for John Paul Stevens and/or Ruth Bader Ginsburg extra quickly after an announced retirement, or should he take a lot of time to try to build speculation and support around a particular short-lister?  Should Prez Obama actively reach out to Senators for suggestions (as I recall President Bush did before nominating Harriet Miers)?  Should Prez Obama be drawn to a more moderate nominee (as defined by reputation and work history) or toward a more exteme nominee?

Here's my two cents of advice:  I urge Prez Obama pick more "first" types of nominees, which could involve any varied combination of gender, racial, ethnic and/or professional and personal backgrounds.  I also urge him to nominate whichever "first" he thinks will make the best Justice, and to name this person as quickly as possible after a sitting Justice announces she or he is stepping down, and to urge hearings and a vote on this nominee ASAP.  I believe that following this script will, for all practical purposes, prevent a filibuster no matter what the perceived politics of the nominee.

Some related new and old posts:

February 15, 2010 at 03:26 PM | Permalink


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I nominate Scott Ballenger!

Posted by: Stanley Feldman | Feb 15, 2010 6:49:22 PM

Hillary Clinton would make a superb choice: brilliant, independent, compassionate, and an equalled breadth of real-world experience.

Posted by: Michael R. Levine | Feb 15, 2010 9:51:54 PM

last post should say "unequalled" sorry.

Posted by: Michael R. Levine | Feb 15, 2010 9:53:36 PM

What a horrible, Yale indoctrinated Hate America, traitor lawyer Hillary Clinton is. One of the most annoying and condescending people on earth. She knows what is good for you much better than you do. Then she has to speak extra slowly because you are too dumb to understand her brilliant plans for your future. A waking nightmare for the nation.

How about a non-lawyer for a change? Anybody, off the street, a wine besotted bum puking in the gutter, for an instantaneous upgrade in logic, legality, and clarity of the decisions of this horrible, out of control, and lawless court.

Posted by: Supremacy Claus | Feb 15, 2010 10:23:02 PM

I actually like Hillary too as a SCJ but she would never do it. She would see it as the equivalent of staying home and baking cookies.

Posted by: Daniel | Feb 15, 2010 10:46:30 PM

"I urge Prez Obama pick more 'first' types of nominees, which could involve any varied combination of gender, racial, ethnic and/or professional and personal backgrounds."

Janice Brown would meet that criterion.

But I won't hold my breath.

Posted by: Kent Scheidegger | Feb 15, 2010 11:21:56 PM

I agree with most of what Doug said. I would like a non court of appeals person, a non judge person. Our best judges had varied political experience and brought other things to the table. Some of the things that they brought to the table did not seem like they would bode well but the persons turned out excellant. Hugo Black (KKK), William Douglas (SEC), Earl Warren (Japanese internment).
It would be nice to have someone who has tried a criminal jury trial for a defendant at least once in their life. A lawyer who tried civil rights jury trials would be a switch. We only had one-- in Marshall. A Governor. Someone with military background. Foreign affairs experience. A Senator.
A Mayor of a big city.

I would welcome a filabuster on any topic. The Senate does not get anything done anyway. The Senate came to discredit- the filabusters-- when they actually filabustered anti lyncing laws and civil rights legislature. I want to see jerks like Jeff Sessions get up and read the Bible on national tv. It will show he can not read.

I would clear it with Hillary, nominate her on the first day and push for a vote.
Hillary brings a lot to the table: civil rights for kids, did not stay home to bake cookies, Secretary of State, Senator, First Lady in time of successful economic growth, wounded in battle (matrimonial but that makes her tough), good law school credentials.

I do not think that Stephens is going anywhere though. And Ruth is tough. The speculation must be coming from the Court Chambers, or from some Whittaker Chambers?

Posted by: mpb | Feb 16, 2010 7:08:29 AM

Go outside the judiciary, and outside the Ivy League. Everybody up there now has basically the same bio.

Posted by: Gritsforbreakfast | Feb 16, 2010 9:10:05 AM

Judge Diane Wood, the one he should have nominated last time.

Posted by: John K | Feb 16, 2010 11:26:43 AM

A nice "first" would be a former public defender. But I think a former state trial judge could be an interesting addition, too. Anyone who has more of a ground-level understanding of the criminal justice system.

Posted by: Sara Mayeux | Feb 16, 2010 11:39:59 AM

(To be clear, I'm not advocating or expecting that Obama go down into the ditches and pick someone who's currently a public defender or trial judge. Just that someone who had that experience early in their career could bring a different perspective -- along the lines of the perspective Sotomayor presumably brings, having started out as a New York prosecutor.)

Posted by: Sara Mayeux | Feb 16, 2010 11:41:35 AM

Please, let's have somebody who has tried some cases, preferably in the criminal field, as about one-fourth to one-third of the court's docket involves criminal matters. Robert Jackson was the last real trial lawyer on the Court. It's time for another, who will know, from first-hand experience, what the practical results of the Court's decisions will be.

Posted by: Greg Jones | Feb 16, 2010 11:42:37 AM

I nominate Seth Waxman!

Posted by: Speculator | Feb 16, 2010 11:58:50 AM


I love the sentiment, but I'm going to say highly unlikely thanks to the institutional nepotism that plagues judicial nominations as a whole these days, especially to the Supreme Court. At one time diversity was valued on the Court--now it's a question of strategically picking those who are most unlikely to get filibustered. Apparently a judge with an Ivy League degree, even if accompanied by unremarkable academic and professional performance, is filibuster-proof--why that is, I do not know.

In the meantime, I'll await an angry response from an Ivy Leaguer that it's not institutional nepotism, but simply that the most qualified are invariably from the Ivy League and nowhere else. Shame on my reverse-elitism.

Posted by: Res ipsa | Feb 16, 2010 1:28:06 PM

I recommend President Obama actually nominate some district court judges.

There's a growing need for more judges who actually hear and make the calls on active cases on a daily basis.

This administration has made it clear that it doesn't see nominating judges to the district and even circuit courts as a priority.

Politics aside, it's a shame. We all need more district court judges to actually move cases.

What's the administration waiting for?

Posted by: Pedro | Feb 16, 2010 11:52:58 PM

First non-lawyer and first wheelchair-bound Justice: Charles Krauthammer.

Posted by: Bill Otis | Feb 18, 2010 3:04:21 AM

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