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February 4, 2010

Time to dust off (and double the size of?) the usual SCOTUS short lists

This new ABC News piece, which is titled "White House Prepares for Possibility of 2 Supreme Court Vacancies," suggests that speculations about SCOTUS short lists might need to go into double-time. Here are the basics from the piece:

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....

It is widely believed that Justice Stevens, 89, sent a strong signal of his intention to retire when he confirmed for The Associated Press last fall that he hadn't hired a full complement of clerks for next term.  The justice has been coy with the press, telling USA Today's Joan Biskupic that he was surprised by the media frenzy regarding his potential retirement.  "That can't be news" he said, declining to reveal his plans. "I'm not exactly a kid."

Justice Ginsburg, 76, announced a year ago that she had undergone surgery for early stage pancreatic cancer.  Sources close to Ginsburg dismissed retirement speculation, pointing out that she has been a lively and active participant in oral arguments this term and has on several occasions expressed an interest in serving for more years to come.

I have been assuming for some time that this year is likely to bring a close to Justice Stevens' remarkable tenure as an Associate Justice of the Supreme Court, but I also was inclined to assume that Justice Ginsburg would stay on as long as her health permitted.  I am not sure this new report changes my gut assumptions, but it does raise the specter of an extraordinary SCOTUS-nomination-focused summer.  And, to celebrate the possibilities, here are some of my "classic" short-list posts from earlier SCOTUS transition periods:

February 4, 2010 at 05:55 PM | Permalink


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If there are two vacancies at the end of the term, I would put my money on Diane Wood and Elena Kagan, with Leah Ward Sears also having a decent chance. If there is just one vacancy, I would bet on Elena Kagan.

Posted by: JC | Feb 4, 2010 6:48:54 PM

I'd throw Ann Williams into the mix as well. She's not quite the intellectual powerhouse of Diane Wood, but definitely sharp, highly accomplished (I would argue far more so than Sotomayor), and I believe younger as well. Additionally, the fact that she's a black female and not as much of a firebreathing liberal as Diane Wood would help avoid substantial pushback from the GOP.

Posted by: Res ipsa | Feb 4, 2010 7:16:02 PM

You all are kidding, right. The last thing Obama wants right now is another judicial nomination. If there is a vacancy this summer look for him to pick the most conservative justice he can lay his hands on. Given that this is an election year a controversial pick would give Republicans great TV fodder and gain nothing to the Democrats. This is especially so given that Obama has been unable to move his agenda at all and Rahm has lost so much patience with the liberals he calls them "retarded".

Kagan is DOA. She offers nothing. A black female might offer some interesting possibilities but there is already one black member of the court and in the identity politics of the Democratic party that matters. A middle of the road Asian might work. Koh has enough Republican support that it might prevent them from making too much fodder of his nomination.

Posted by: Daniel | Feb 4, 2010 7:57:54 PM

Someone explain the difference between a Stevens/Ginsburg and Roberts/Allito. All the public sees is a Mafia commission of a criminal cult enterprise. And with every decision, we know the loser, the public. Their sole legitimacy stems from Army Airborne. Outside of brute force, they have no legitimacy. They know nothing about nothing, these ignoramuses and incompetents. Yet they get to legislate from the bench in out of control insurrection against the Constitution, and they control every aspect of highly technical and complicated fields. Put a two year old in charge of a utility business, you would get better results than with these cappi di tutti cappi.

If they were good leaders, no one speak up. But they are incompetent, lawyer self-dealing, self-immunizing, waking nightmares for the nation. Their ilk caused the Civil War. Their ilk signed the death warrants for millions of viable babies, and repeatedly. We are all good Germans thanks to them. Thanks to these dunces, we have a growth rate of 3% instead of 9%. And now, thanks to these cult criminals, these incompetents, the economy is shrinking. One would have to be suicidal and insane to ever hire an American employee or to start a business. They made the entire country a judicial hellhole. And the system is rigged airtight. The crime victim and the falsely accused defendant have no legal recourse thanks to these dunces.

Posted by: Supremacy Claus | Feb 4, 2010 9:09:38 PM

"Kagan is DOA."

Are you sure you're not thinking of Secretary Napolitano? The Solicitor General is a highly qualified candidate for the Supreme Court.

Posted by: JC | Feb 4, 2010 10:03:41 PM


You missed my point. She may indeed by highly qualified legally. She's not highly qualified politically. And a SC nomination is first and foremost a political judgement, not a legal or judicial one.

Sotomayor may be well-qualified for the job. But so were dozens of others. She got the nod because of a political calculus. That was the decisive factor.

Posted by: Daniel | Feb 4, 2010 11:30:03 PM

If Ginsburg retires, Obama probably has to go with a female replacement, but if it's Stevens, I agree with Daniel--look for someone anodyne like Garland. Actually, my pet sleeper nominee is Carl Stewart of the 5th Circuit.

Posted by: Jay | Feb 5, 2010 12:25:34 AM

It is highly unlikely that two justices would retire simultaneously. As Ginsburg has no known health issues that would prevent her serving another year, I suspect that Stevens will be the only retirement.

I also suspect that whomever Obama nominates will be no more liberal than Sotomayor, and indeed possibly less so. He will want someone that can attract moderate Republican votes.

Posted by: Marc Shepherd | Feb 5, 2010 1:10:18 PM

you think they'll retire before they get the chance to see Perry, the case in front of Judge V. Walker, get to the Court?

Posted by: = | Feb 5, 2010 4:07:56 PM

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