Legal Commentary

With election day less than five months away and the Presidential nominees seemingly chosen, I was going to begin a discussion of prospective Supreme Court nominees, but Doug and the various commenters beat me to the punch.  Most of the names that are on my list have come up before, either in the comments to Doug's post, in Tommy Goldstein's extensive discussion last summer, or in other media speculation.  Still, I'm curious what people think of my analysis.  Without further ado, here is my highly subjective lists of the ten people most likely to find themselves on the Supreme Court at the end of a first Obama term (with a McCain list to follow later in the week).  I encourage all who desire to procrastinate to play along.

(1) Diane Wood--One of the two or three most often mentioned candidates in the press.  It's hard to find a knock on her candidacy.  She has the credentials, the experience, the intellectual heft, fits demographically, and as woman from Chicago would make a neat substitution for either Justice Stevens or Justice Ginsburg.

(2) Elena Kagan--Another candidate who seems to have nearly perfect credentials.  She certainly has the stature, has high level Washington experience, is the perfect age for a long run on the Court, and is respected across the political spectrum for her handling of hiring issues at Harvard.  About the only fly in the ointment is the fact that she would either have to accept a short stint on the Court of Appeals or join the Court as the first Justice since Lewis Powell and William Rehnquist without any judicial experience.

(3) Merrick Garland-- With David Tatel aging out of the contest, widely considered to be the leading contender among white male sitting judges and--hey--that group has done pretty well in prior nomination contests.  Also, happens to be smart and well-connected.

(4) Cass Sunstein--Most of the career academics who make these lists are completely implausible but there are reasons to think that Sunstein might be the exception that proves the rule.  After all, how many academics are there who have written as much high-quality scholarship as Sunstein without saying any single disqualifying thing (though, we need to keep an eye on the recent controversy over Justice Scalia's use of his article on the death penalty and deterrence)?  He's one part liberal powerhouse and one part technocratic moderate.  That combination has worked pretty well for Justice Breyer.  And--unlike most of the other candidates--we already know he has Obama's ear.

(5) Teresa Wynn Roseborough--If, as is widely expected, this African-American former Stevens clerk/Gore lawyer/ACS founder is appointed to the Court of Appeals in the first months of a Democratic Presidency, she will complete her goldplated resume and become a fixture on Democratic shortlists for decades to come.

(6) Leah Ward Sears--Chief Justice, Georgia Supreme Court.  Of all the new names I have encountered through the Great Mentioning Game, the one that is most plausible.   A Southern African-American woman of the right age with strong academic credentials and--from what I can tell--an excellent judicial record/reputation.

(7) Sonia Sotomayor--If the pundits are right, she has already locked down the first nomination.  I am a bit more skeptical.  She will probably get an interview, but she will still have to out-interview a couple of equally stellar candidates with more sparkling personalities.  Plus, her record on the bench is cryptic enough that she might well incense the right without exciting the left.

(8) Deval Patrick--Was already on a lot of lists before we knew his friend was going to be the nominee.  The rare elected official with all the right legal credentials.  Would be much higher if not for the rockiness of his term as governor.

(9) Eric Holder--The likely favorite for Attorney General in the Obama administration is not often mentioned as a high court candidate, but he has the credentials, including a stint as a judge in DC, and might be an appealing inhouse option for a second or third seat.  Involvement in the controversial pardon of Mark Rich would be an obvious target for confirmation attacks.

(10) Barrington Parker, Jr.--A bit on the old side, but an incredibly credentialed, connected, competent, and confirmable African-American appellate judge.