Glenn Greenwald writes a very compelling case for Seventh Circuit Judge Diane Wood to sit on the Supreme Court. I'm convinced. Now, how to convince Obama? I think the tail end of Glenn's article makes the best case for why picking Wood to replace Justice Stevens is not only good progressivism but good politics:

What makes Wood so unique is that she combines her principled convictions with an extraordinary ability to secure the support of other judges for her opinions. Her creative and flexible intellect enables her simultaneously to stay within the confines of the law while finding the most equitable outcomes that attract a broad range of support. The 7th Circuit is one of the more conservative circuits in the country, yet Wood's influence on that court and her ability to induce right-wing judges to support her rulings is remarkable, an attribute particularly important for replacing Justice Stevens. It's impossible to provide anything close to a comprehensive assessment of her 15 years of written opinions in this regard, but a few illustrative cases can be highlighted.

Given the need to persuade Justice Kennedy (and I have been convinced by some smart people that in fact Kennedy is persuadable), this is a critical skill. But there is another political upside - putting forth an intelligent exposition of the progressive view of the law, and putting it to the test. In that sense, Greenwald's associate Daniel Novack makes a strong point:

I want someone like Pam Karlan for the Court. But I would accept someone like Elena Kagan. Who would I oppose? Someone like Cass Sunstein. - BTD

Glenn Greenwald wrote:

I'm glad this debate [over Elena Kagan] has been triggered. No matter what else happens between now and 2012, Obama's choice to replace John Paul Stevens will be one of the most consequential decisions he makes. [. . .] There's no reason that those who advocated for Obama's election -- as I did -- should adopt a passive posture of simply waiting quietly for Obama's choice and then go forth and dutifully support his nominee. From the start, my objective has been to document all the available facts so that everyone can exercise their own independent, critical judgment about whether replacing Stevens with Kagan is remotely justifiable given long-standing progressive goals with regard to the Supreme Court.

(Emphasis supplied.) I completely agree. Indeed, I agree with this about every issue. It is a longstanding argument of mine that progressives should decouple their advocacy from Obama's actions. When they agree, strongly support. When they disagree, strongly criticize. That said, I think it is important to be accurate in your criticisms. I've taken issue with Glenn's interpretations on Kagan. But I also think there is an implicit assumption in Glenn's approach that is unrealistic - to wit, that Obama wants a progressive on the Supreme Court. I see no evidence to support such an implicit assumption. More . . .

Former President Bill Clinton was on ABC's This Week this morning. Jake Tapper asked him whether he'd like to be on the Supreme Court. His answer:

“I think I would enjoy it, but I don't think it would be a good idea…I'm already 63 years old, I hope I live to be 90…I love what I'm doing now and what I'm doing now is something that I'm uniquely qualified to do, whereas there are many people who could be good on the court.”

He also said both he and Hillary are too old to be put on the Supreme Court now -- not because they can't do it but because it would be better to pick someone with more energy in their 40's or 50's....meaning someone who will serve longer.

As to who Obama should pick:

“My advice to him would be to first of all see what the court is missing…The important thing is that you think they're smart and they're competent and they understand the lives of ordinary people. Now one thing I think he should think about is have we…gone too far in this process that assuming only judges can be elected? That somehow you're not qualified if you weren't a judge."

With Solicitor General Elena Kagan the likely pick to be the next Supreme Court Justice, I am going to start providing some primary source materials for consideration. Earlier, I discussed Kagan's 2001 law review article on Executive power. I have previously discussed my views on preventive detention. In this post, I provide the transcript of Kagan's testimony in the Senate Judiciary Committee hearings on her nomination to be Solicitor General. Below the fold, I provide the quotes from her exchange with Senator Lindsey Graham on preventive detention:

Walter Dellinger's piece on Elena Kagan (it reaches similar conclusions to my own piece) raises important questions for progressives regarding a desire for a strong regulatory state while at the same time fearing a strong President. Dellinger writes:

Kagan's 2001 Harvard Law Review article "Presidential Administration[]" [. . .] does not endorse anything remotely like the Bush-Cheney view of broad presidential power to evade laws passed by Congress. [. . .] Kagan's views on the president's power to direct the executive branch are in fact fully consistent with the positions taken by Justice Stevens. [. . .]

As a matter of policy, moreover, Kagan writes that she sees presidential supervision of federal agencies "as a mechanism to achieve progressive goals" in areas such as environmental protection. [. . . ] The Bush-Cheney view of executive power was wrong not because it asserted that the president could direct administrative agencies to achieve policy goals. It was wrong because it allowed for the president to ignore decisions made by Congress and assert unilateral power to violate duly enacted laws. That is a view of presidential power that Kagan expressly rejects. She believes that the president has to comply with the law, writing that, "If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter."

(Emphasis supplied.) This was the point I made in my post earlier this week. But Dellinger continues to an equally significant point:

When discussing Solicitor General, and probable SCOTUS nominee, Elena Kagan's views on the unitary executive theory, it is important to understand what is meant by the theory of the unitary Executive Branch. I made this distinction during the Alito hearings of 2006. The Bush Administration took what I believe is a respectable theory of a unitary Executive Branch and distorted it to support their lawlessness:

In a speech to the Federalist Society in 2001, Alito said:

When I was in OLC [] . . ., we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. [. . .]

What does that mean? Here's what it means for Bush:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

The infamous Bybee Memo put it this way:

I plan on being an advocate for the nomination of Elena Kagan to the Supreme Court. My friend and highly respected legal analyst Glenn Greenwald presents the case against her. One important point that I agree with that Glenn makes is:

[T]the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan's lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination.

I believe that the confirmation process can address this concern, so long as the approach I have long advocated - that nominees must be obliged to answer substantive questions on issues from the Senate - is adhered to. Failure to answer questions and provide information should be disqualifying. I argued for such a standard when John Roberts was nominated to be Chief Justice.

In any event, read Glenn's piece. It is quite good. I will be publishing a rebuttal in the next day or so.

Speaking for me only

Leave it to Sen. Orrin Hatch to stir up rumors and serve up distraction, this time, with comments about whether Obama would nominate Hillary Clinton for the Supreme Court. Hatch says it's possible.

Stay focused, people. It's not going to happen.

Many legal observers expect the President to nominate Solicitor General Elena Kagan to fill the seat being vacated by retiring Justice John Paul Stevens. As expected, an early salvo has been provided by Glenn Greenwald:

The danger that we won't have such a status-quo-maintaining selection is three-fold: (1) Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of "post-ideological" attribute Obama finds so attractive; (2) for both political and substantive reasons, the Obama White House tends to avoid (with a few exceptions) any appointees to vital posts who are viewed as "liberal" or friendly to the Left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial (indeed, The New York Times' Peter Baker wrote last month of the candidates he said would be favored by the Left: "insiders doubt Mr. Obama would pick any of them now"); and (3) Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General, and the desire to have on the Court someone who has demonstrated fealty to Obama's broad claims of executive authority is likely to be great.

I think this is a misreading of Kagan. I will try and offer a cogent rebuttal in the next few days. But in the meantime, Greenwald begins to develop what will be the principal case against Kagan from the Left - her supposed fealty to Executive Branch power. I think this misreads Kagan. I'll try to persuade you tomorrow.

Speaking for me only

Senator Pat Leahy, Judiciary Committee Chair:

When the Supreme Court recesses on Justice Stevens’ final day on the bench, it will mark the end of an extraordinary judicial career spanning four decades, including 35 years on our highest court.

The last Justice from “the Greatest Generation,” John Paul Stevens first answered the call to service when he joined the Navy during World War II. Our nation called on him again years later, and he returned to public service as an appellate judge before accepting President Ford’s nomination to serve on the Supreme Court. He has since become one of the longest serving Justices on the Court. His confirmation was the first of a dozen Supreme Court nominations I have considered in my years in the Senate. As a young, freshman senator, it was a privilege to support his confirmation in 1975.

[MORE . . .]

The AP and MSNBC are reporting that Justice John Paul Stevens will be retiring this year from the SCOTUS. From the SFChronicle.

Let me be the first to say NO TO SUNSTEIN!

Also, a proper tribute post to Justice Stevens, who was an excellent Justice imo, will be forthcoming in a few days.

Taking a look at the names most frequently mentioned as a possible replacement for Justice John Paul Stevens who is widely expected to retire this year or next, prospects aren't looking good for progressives.

Elena Kagan and Merrick Garland seem to be at the head of the pack. Garland, now on the D.C. Circuit Court of Appeals, is a former DOJ top prosecutor (Associate Deputy Attorney General) who supervised the Oklahoma City Bombing case. Conservatives would welcome him since he's known for siding with the Government in criminal cases and tough on terrorism. He's been called the Democratic version of John Roberts.

The third person who appears to be in the running is Judge Diane Wood of the 7th Circuit, who is considered more progressive than Kagan or Garland. (She, too, is a former prosecutor -- deputy assistant attorney general under President Bill Clinton.)

Republicans are trying to influence the decision already, promising "bruising battles" and saying Garland is his best bet. Why does Obama have to play it safe? He's already got his "signature issue" -- the health care vote -- behind him. He really has an opportunity here to effect some change, one that could last decades. I hope he doesn't throw it away. And can we please have someone who didn't spend decades working for the Justice Department?