Less than a week after Justice John Paul Stevens announced that he will retire from the Supreme Court this summer, the great guessing game among the Chattering Class in the media and on the Washington cocktail circuit began.
“Who will succeed Stevens?” people in the know and out of it chorused over the weekend. No one, of course, yet knows whom Barack Obama will select to fill the second vacancy on the High Court of his presidency. But by Monday, the guessing game had come down to a “ Big Three” : U.S. Solicitor General Elena Kagan, and U.S. Court of Appeals Judges Merrick Garland (D.C.) and Diane Wood (Chicago).
For now, the odds favor the 57-year-old Garland, Harvard Law graduate and former Clinton Administration official. Considered a liberal, although not as far left as Stevens, Garland nonetheless has offended few Republicans. Sen. Orrin Hatch (R.-Utah), a past Judiciary Committee chairman, speaks highly of Garland and is considered likely to back him if he’s nominated. Prominent in both national legal circles and on the Washington social scene, Garland first gained notice for doing much of the legal work after the Oklahoma City bombings in 1995.
Dubbing Garland “a kind of Democratic version of Chief Justice John G. Roberts, Jr.,” The New York Times concluded that he would be Obama’s “safest choice” if the President wants to avoid a confirmation battle with Senate Republicans in an election year. With his healthcare measure causing the number of voters planning to back Republican congressional candidates to rise dramatically, the President may not want to hand his opponents another issue with which to arouse the GOP base.
In contrast to Garland, the 59-year-old Wood has a longer paper trail on the bench marking her as a strong liberal or “progressive.” Wood’s spirited dissents on cases in the conservative-heavy 7th Circuit Court would surely spark a nationwide crusade on the right against her confirmation to the Supreme Court. Moreover, her pro-abortion rulings have already drawn a warning salvo from Americans United for Life trying to dissuade Obama from nominating his old teaching colleague from the University of Chicago Law School.
Even more unacceptable to conservatives is Michigan Democratic Gov. Jennifer Granholm, who was frequently mentioned for the last Supreme Court vacancy that went to Sonia Sotomayor and has been in some of the media speculation about this seat. Not only did the former state attorney general oppose pro-life legislation in Lansing, but she also twice vetoed bans on partial-birth abortion, bans Congress has approved and the public overwhelmingly favors. So Scratch Granholm. Also, scratch other seasoned office-holders such as Secretary of Homeland Security and former Arizona Gov. Napolitano, who has showed up on many lists of court possibilities. Politicians used to be common appointees to the high court but not any more. The last major elected official to be named to the Supreme Court was California GOP Gov. Earl Warren, named chief justice by President Eisenhower in 1954).
The last of the “Big Three” possibilities to succeed Stevens is U.S. Solicitor General Elena Kagan, past dean of Harvard Law School. Although she lacks a “paper trail,” Kagan has such a reputation as a strong liberal that the Senate Judiciary Committee thwarted President Clinton’s attempt to name her to U.S. Court of Appeals for the D.C. Circuit. For all the puffing she has received as a justice-in-waiting since she became solicitor general, Kagan got low marks last year for her performance arguing the government’s losing side in the landmark Citizens United campaign reform case (in which the court struck down numerous limits on campaign spending).
Working in Kagan’s favor is her age (49, making her about a decade younger than Garland or Wood and thus likely to be on the court much longer. Working against her is the “judge factor”—Kagan has never served on a court of any kind. Although no law says a justice needs to be a former judge (or, for that matter, a lawyer), the last time anyone was named to the court without prior judicial experience was back in 1971 when William Rehnquist, an assistant U.S. attorney general, was named an associate justice.
Given that run-down on the possibilities and the strong belief that Obama does not want to hand Republicans a campaign issue with a controversial court appointment—the odds at this point favor Merrick Garland’s getting the nod.