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The next justice

By Dylan Matthews

With John Paul Stevens expected to retire within a month, the shortlist for Obama's next Supreme Court pick seems to have already narrowed to three: Solicitor General Elena Kagan, Diane Wood of the Seventh Circuit Court of Appeals and Merrick Garland of the D.C. Circuit. All would be good nominees. Wood would be my preference, given as she is the clearest of the three in calling for the Constitution to be interpreted in historical context and in a way that allows for the provision of unwritten rights. Kagan is a bit too fond of executive power, which is something I'm sure presidents look for in prospective solicitors general but is an unfortunate quality for a justice, but on other issues she's fine. Garland is less overtly liberal than either Wood or Kagan, but his record is generally solid, especially in a case where he ruled that a Guantanamo detainee could not be classified as an enemy combatant.

That being said, the fact that the field has closed this quickly is dispiriting. Given that Ruth Bader Ginsberg is the only justice other than Stevens expected to retire soon, Obama will likely not be able to replace a moderate or conservative justice. If he picks moderate liberals, he'll have a holding pattern but little more. The court won't move rightward, but the liberal bloc won't gain significantly. There are two ways around this. Obama could appoint a real William Brennan/Thurgood Marshall style liberal to the Court. This is a style of justice that has gone extinct in recent decades; for example, while the court's current liberals all support Roe v. Wade, Brennan and Marshall believed that Constitution required the government to fund abortions for the poor. A nominee like Pam Karlan or Kathleen Sullivan would be closer to this mold, and could move the court's center significantly leftward.

Alternately, Obama could appoint a politician capable of whipping votes on the court more effectively than a typical nominee. The model here would be Earl Warren, whose background as governor of California some credit with giving him a knack for gaining the votes of fellow justices. The hope would be that a nominee coming from a political career – retiring Michigan Gov. Jennifer Granholm and Massachusetts Gov. Deval Patrick are the obvious options here – would be better able to persuade Anthony Kennedy to form a majority with the court's liberals.

There's reason to doubt that a real liberal could make it past the Senate, or that Granholm or Patrick would be better able to sway Kennedy than a nominee without political experience. But Obama should be thinking about how to have an impact on the court, and his rumored shortlist suggests he's more interested in keeping it where it is.

-- Dylan Matthews is a student at Harvard and a researcher at The Washington Post.

By Washington Post editor  |  April 5, 2010; 9:42 AM ET
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If ultra conservatives like Roberts and Alito can make it past the Senate, but moderate liberals can't, then it's time to ditch the filibuster and hope Americans aren't stupid enough to again give the GOP control of both houses and the White House. I'm not hopeful.

The Dems are going to lose anyway, so I say ditch the filibuster regardless of the politics involved and anchor the liberal wing of the USSC so it remains in place for the next few decades as Americans take their time in figuring out how block-headed they were in repeatedly giving the GOP so much power.

Posted by: Lomillialor | April 5, 2010 10:22 AM | Report abuse

The whole process of nominating Supreme Court justices is broken. Senators try to politicize the nominee while the nominee tries to pretend that they've never had a political thought in their life. Presidents choose the nominee who's done a little to produce a paper trail with even the smallest amount of controversy.

It's all a farce, and I wish we could grow up about it. You can be liberal or conservative and still be a fair person and consider relevent points of view. We should really be focusing on the record that the nominee has made over the years and whether it shows them to be a fair person with a sharp mind.

Actually, my dream is that we'd have some kind of term limits for Justices. I like the idea of lifetime appointments, but they're just creating more trouble than they're worth now. The incentive is to nominate someone who's as young as possible, both because they've had less time to produce a record that could be held against them and because it means the nominating President will have a longer impact on the Court.

Ideally, I'd like one or two seats to open up per term. If someone dies mid-term, their replacement may only serve the rest of the term. It's the longest term in the government, but it does end, so we should have no need for nominating super young Justices or worry about Justices staying on the Court into extreme old age.

Ideally, this would push Presidents to nominate Justices with great minds, not bland histories.

Posted by: MosBen | April 5, 2010 10:42 AM | Report abuse

Obama he is my man, he shows his anger, to the public he gives no dam.

He is a progressive in every way, killing jobs is how he earns the union's back deal pay, in action he is a socialist even when he is just simply issuing a stay: he says he for the free, but he is bent on one single deed, providing a permitted May Day for all of America to see.

He oppresses many while calling them every name, then claiming he and his party is the victim, soaking in the more fame, he is very hypocritical in his blame, knowing every time it's always the same, this is Obama's favorite game.

He blame's others like the Tea Party, Insurance, Racist, Big banks, and Israel. Many of us knows his policies have already failed. He shows the signed of being dangerously narcissistic, but our media loves him, as he can fool them into believe he just pessimistic.

He is for big government every time, hurting our economy so we can't save a dime. He knows the socialism role, will be to take away all our dough. He made a promise not increase the deficit, this promise he knew, to be untrue, but if he created enough civil unrest, he could find some else to have the blame rest, for all his ugly mess, this is where Obama is truly the best.

With government spending billions in waste, I know our government will make it sound great and a honorable place, so they offer money to their cronies in this and every case.

President Obama helps unions gain their dues, no bill is done with out their un-ethical sausage dew. Soon our education system stench will endlessly protrude, and he has no care if you find this rude.

Go Obama, lets have Government take away more freedoms, come on man, you can transform, again claim the public is misinformed. Go Big G, rah rha ree, lets help our government take us to our knees

Posted by: rdurig | April 5, 2010 10:45 AM | Report abuse

I think that an Earl Warren type justice who can whip votes is vestige of a Court that doesn't exist anymore, one with much less ideologically centered justices.

Also, with respect to moving the center, let's not forget that Justice Scalia is 74 years old, so it's not outside the realm of possibilities that a two-term Obama would get to appoint his successor, and a Democratic administration that follows a two-term Obama administration would almost certainly replace him.

Posted by: JEinATL | April 5, 2010 10:54 AM | Report abuse

I'd be happy if he followed George Bush's lead and appointed someone like Alito -- though naturally from the liberal side.

I think that's the kind of 'compromise' candidate both Democrats and Republicans could rally around.

As far as Scalia is concerned, 74 seems almost youthful. There's no reason not to believe he'll wait out Obama's two potential terms.

Posted by: leoklein | April 5, 2010 11:15 AM | Report abuse

Kennedy's 74 also, so there's a chance that Obama could end up replacing them both. I imagine that even if he stuck with fairly moderate nominees he could get both of them to be more liberal than Kennedy.

Posted by: MosBen | April 5, 2010 11:19 AM | Report abuse

P.S. in re: rdurig. Notice how guys like him whine about "freedom" just because the Government's borrowing money in a recession to fund unemployment checks -- that's an attack on "freedom" -- but throwing people in jail without trial or tapping people's phones without warrants like when their guy was in power -- that's no problem.

Even get the feeling like their definition of "freedom" is something that none of our Founding Fathers would agree with?

Posted by: leoklein | April 5, 2010 11:20 AM | Report abuse

Leoklein, it all depends on health. I don't have any particular knowledge about Scalia or Kennedy, but let's face it, 74 ain't young. It's entirely possible that one or both of them could die in the next six years.

Of course, if they don't, it makes the 2016 election pretty important.

Posted by: MosBen | April 5, 2010 11:25 AM | Report abuse

Clinton created 33 million jobs.

Bush lost jobs in his 8 years.

In one year under Obama, we are finally seeing positive job growth for the first time in several years.

Yet some idiots have the audacity to see Obama as the anti-christ and paint him as the author of the current recession though it is clear that blame goes to his predecessors.

We have far too many rdurigs in this country and that is why I am not optimistic for the future here in the USA.

Posted by: Lomillialor | April 5, 2010 11:35 AM | Report abuse

What about Goodwin Liu?

Posted by: PorkBelly | April 5, 2010 11:50 AM | Report abuse

The process has been completely broken ever since Clarence "Coke Can" Thomas testified under oath that he -- a staunch Catholic -- had never thought about abortion and not a single senator stood up and said, "YOU LIE!"

Posted by: koolkat_1960 | April 5, 2010 12:08 PM | Report abuse

"I'd be happy if he followed George Bush's lead and appointed someone like Alito -- though naturally from the liberal side.

I think that's the kind of 'compromise' candidate both Democrats and Republicans could rally around."

No way. Alito is quite conservative -- and if Obama chose someone who was equivalently liberal, Senate Republicans would have an absolute conniption. But I don't think Obama would go for a true liberal anyway. (Don't get me wrong -- I wish he would!)

Posted by: Janine1 | April 5, 2010 12:18 PM | Report abuse

MosBen: "Leoklein, it all depends on health."

Frankly, I'm hoping the guy goes home every night and eats fried chicken and pizza. That said, these guys tend to linger.

Posted by: leoklein | April 5, 2010 12:24 PM | Report abuse

Rehnquist was something like 81 when he died. I think we can all agree, however, that Scalia's could be done during this Presidency, but will definitely be done by the next. Unfortunately, Thomas, Alito, and Roberts are all pretty young, and barring some intervening factor they're going to be around for a loooong time.

Posted by: MosBen | April 5, 2010 2:07 PM | Report abuse

I think Obama's just being pragmatic here, given that he's stuck with the filibuster. Repubs aren't going to let the second coming of Thurgood Marshall in, no matter how much we liberals might wish that. If Obama nominates a pragmatic moderate that will help him look reasonable to the media and public in the confirmation battle. This is one context in which Repub obstructionism could hurt them, since Supreme Court nominations get a lot of attention.

Posted by: beckya57 | April 5, 2010 2:09 PM | Report abuse

Justice Ginsburg is over 75 years old, and had surgery last year for a pancreatic tumor. Pancreatic cancer is a particularly rough form of cancer for survival rates.

I hope Justice Ginsburg has many more years on SCOTUS, but I would not be surprised to see her seat filled long before the departure of Scalia, Kennedy, or anyone else (besides Stevens) from the Supreme Court.

Posted by: Patrick_M | April 5, 2010 2:54 PM | Report abuse

Patrick_M, I thought we were all assuming that Obama would fill her seat relatively soon. but replacing Stevens and Ginsburg isn't going to be an opportunity for the President to change the tilt of the Court. If anything, it'll probably end up more moderate on the left side. The question of Kennedy and Scalia, however, is a question of the ideological bent of the Court. If Obama got to replace one or both of them, or if he's succeeded by a Democrat who does, the makeup of the Court will be more liberal than it's been in 20-30 years.

Posted by: MosBen | April 5, 2010 3:12 PM | Report abuse

Didn't Kagan come into the Solicitor General position with very limited Con Law chops? I recall that being a knock on her. I would like the next nominee to be someone who can be a serious counterweight to Scalia's originalism. Wood seems to be the only one of the top three who fits that. Pam Karlan could also, but doesn't look like she'll be nominated.

Posted by: gocowboys | April 5, 2010 3:43 PM | Report abuse

"Patrick_M, I thought we were all assuming that Obama would fill her seat relatively soon. but replacing Stevens and Ginsburg isn't going to be an opportunity for the President to change the tilt of the Court. If anything, it'll probably end up more moderate on the left side."


Some of the other commenters seem to be arguing that other justices might leave sooner, or that they might at least leave while Obama is still in office. I think that's something of a long shot, and my expectation is the same as yours: Obama will only be able to replace one or two liberal justices, and (if anything) the replacements he names are likely to be more "centrist" than Ginsburg and Stevens.

Posted by: Patrick_M | April 5, 2010 4:01 PM | Report abuse

Patrick_M, I agree that the most likely scenario is that Obama replaces Ginsburg and Stevens. In fact, assuming he has a second term I think it's pretty much a lock. Neither of them are in great health and they're both liberal enough to want to be replaced by Obama rather than risk a Republican as the next President.

Where I think we part ways, however, is in the discussion of Scalia and Kennedy. I don't think it's nearly as likely that Obama would get to replace the other two, but I do think it's a possibility. Rehnquist's death was pretty sudden, all things considered, and at the age of 74 it's not out of the realm of possibility that Scalia or Kennedy could die on the bench during Obama's presidency. Of course, as I said above, they both almost surely going to be off the bench during the next President's terms, so I really hope the Dems can get a good nominee in the pipeline.

Posted by: MosBen | April 5, 2010 4:44 PM | Report abuse

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