Reid Wilson's survey of the field in The Hill quotes a law professor at Columbia who wonders if Obama will start with an easy consensus choice, knowing that he'll probably have at least two more seats to fill down the road. Not to exploit Obama's popularity while he has it would be a foolish waste of a powerful resource. If Obama fields a consensus nominee, he'll do so because his political instinct (as it often seems to be) is to achieve broad consensus -- and because he has genuine respect for the nominee.
If, on the other hand, a decisive factor in President Obama's decision will be (as he said yesterday) the potential nominee's empathy for the powerless, Obama will have to battle conservatives (including some in his own party) who will put up the usual fuss. A nominee who openly agrees with Obama's view that the Constitution should be construed to protect the powerless from the powerful, or who even suggests that laws enacted to protect the powerless should be construed to protect the powerless, will promptly be fed into the conservative branding machine and come out labeled anti-business, socialist, and soft-on-crime.
I have no clue whether Obama will choose a relatively liberal judge who might need to be sold to conservative Dems, or a scholarly, middle-of-the-road judge who won't make liberals or conservatives overly happy or pained. I don't know if he will feel the need to add Hispanic representation to the Court, although I hope that gender will be at least a tie-breaking factor.
Another "I don't know": whether Obama's affiliation with the University of Chicago will produce a nominee from the Windy City. Wilson's suggestion that "Obama could pick Richard Posner, a nominee even conservative sources said would face little opposition before the Senate," is stunning. "Even conservative sources"? Conservatives love Judge Posner's cost-benefit approach to the law. Cost-benefit analysis set free to run wild in our highest Court is a frightening thought. And with all due respect to Judge Posner's keen intellect, empathy is not his strong suit.
Wilson floats Cass Sunstein, about whom BTD has had much to say, as another Chicago connection. There seems little upside for Obama in Sunstein or Posner.
Solicitor General Elena Kagan seems a more likely choice. She met Obama while she was teaching at the University of Chicago Law School, but that connection (like the Larry Summers connection) is less important than her resume: law clerk to Thurgood Marshall and Abner Mikva, White House lawyer and domestic policy adviser in the Clinton administration, Professor of Law and then successful Dean of Harvard Law School, and now Solicitor General. President Clinton nominated Kagan to the court of appeals, but Republicans refused to give her a hearing. Kagan's confirmation to the Supreme Court would be sweet payback.
The final Chicago connection is Seventh Circuit Judge Diane Wood, who earns a mention in two of the linked articles. Obama could do much worse than Judge Wood. She might be considered "reasonable" more than "liberal," but she's a credible candidate who would probably be confirmed without controversy.
Women dominate this Los Angeles Times list. And why shouldn't they? Since Justice O'Connor's departure from the Court, Ruth Bader Ginsberg has been the only female Justice on a Court of nine. She must be going nuts.
Second Circuit Judge Sonia Sotomayor brings a different set of factors to the table than Kagan or Wood. Having been appointed to the federal district court by the first President Bush, then promoted to the appellate court by President Clinton, she might appeal to Obama's inner consensus child. She would also give him the chance to put the first Latina on the Supreme Court. That combination and a supposed "tip" seems to have prompted the Telegraph to declare Sotomayor the nominee.
Jennifer Granholm and Chris Gregoire, the governors of Michigan and Washington respectively, are long-shots. Unless Obama has already decided on one of them. Who knows?
My guess is that Obama will fill the first two vacancies with women and that Elena Kagan will be one of them. If he wants Sonia Sotomayor on the Court, he'll probably seek her confirmation now, when Democrats may deem it politically wise to stand together and give their popular president what he wants. Somebody like Koh might get the nod for a third vacancy, but assuming that one of the nominees takes Justice Ginsberg's seat, that would still leave but two women on the Court. In a long term bet that I hope will be long forgotten before I'm called on it, I think Obama will nominate women to the three seats he's likely fill in his first term.
