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Justice Margaret McKeown?

By Jack M. Balkin

I would be delighted with the nomination to the Supreme Court of any of the people on the various "lists" that are circulating. I would take greatest pleasure in the the nomination of Elena Kagan, who, among other things, was a student of mine many years ago at Princeton and is a good friend. A more public-spirited reason is that she has, among other things, written one of the great articles on the modern administrative state, drawn in part on her own experiences during the Clinton Administration. Thus she would bring a variety of backgrounds and perspectives to the Court, as well as her well-demonstrated ability to herd cats as Dean of the Harvard Law School. That being said, I am assuming that she was appointed Solicitor General to be primed for the "next" appointment, which I assume will be coming within the next year or two (at the latest). I am also assuming that the President is unlikely to appoint a string of legal acaemics, which I assume makes far less likely the appointment of any of the other academics on the list (any of whom would grace the Court).

Although I strongly hope that the President will appoint at least one person from the world of elective politics--Jennifer Granholm or Janet Napolitano easily qualify--I also assume that at least one of the coming two or three appointments will stick to what has become the custom of drawing on the existing bench. I will declare another personal interet in Seventh Circuit Judge Diane Wood, an outstanding graduate of the University of Texas Law School and for that reason alone meriting appointment! It is probably also worth mentioning, though, that she's also a former academic, at the University of Chicago Law School, and has the benefit of knowing antitrust law, which, according to today's New York Times, will return, after 8 long years, as a priority of the Justice Department.

But I want to suggest one more potential nominee from the existing bench, Judge Margaret McKeown of the Ninth Circuit. (I should note, in the spirit of declaring any special interest, that my daughter clerked, very happily, for Judge McKeown some five years ago.) I mentioned Diane Wood's having graduated from U.T. As a matter of fact, I think it would be wonderful to have someone (besides Justice Stevens) on the Court who did not go to Harvard or Yale (and who did not hale from the Northeast). Right now, only Justices Stevens and Kennedy are from west of the Appalachians, and it has, I suspect, been years since either has spent much time in their home areas. (We know that Justice Stevens now spends most of his time in Palm Beach, Florida.) This degree of regional parochialism cannot be good either for the Court or for the country.

Judge McKeown is a native of Wyoming and, indeed, received her undergraduate degree from the University of Wyoming, Phi Beta Kappa. She went on to receive her law degree from Georgetown (i.e., not Harvard or Yale). She has worked on Capitol Hill for a Wyoming senator, I believe, and was a White House Fellow, where she was assigned to Cecil Andrus, Carter's Secretary of the Interior. She went to Seattle, where she became the first female partner in the city's leading law firm. Much of her work involved high tech and intellectual property. She was named to the Ninth Circuit by President Clinton in 1996, confirmed by the Senate a mere two years later (by a vote of 80-11). She moved to San Diego several years ago, where she now has her chambers (and does adjunct teaching at the University of San Diego Law School).

Although, technically, she is now a Californian, she is far more from the Rockies and the Pacific Northwest, a region unrepresented on the Court certainly since Justice White retired. She would, in every way, be a fine addition to the Court, especially if prior judicial experience is thought to be highly relevant. From my perspective, it is more important that she actually knows something about high tech and intellectual property, not to mention such issues as the Indian law--a subject, I suspect, basically unknown to the other potential nominees--and water law, which I suspect will start showing up with greater frequency on the Supreme Court's docket.

So, as the President looks around for someone who would contribute to the "team" that is the U.S. Supreme Court, I hope that he gives careful consideration to Judge McKeown.

Full post as published by Balkinization on May 11, 2009 (boomark / email).