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Academic

: The Faculty Lounge

The Next Supreme Court Short List (or Long List)

By Alfred Brophy

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Many, many congratulations to Judge Sotomayor on her nomination to the United States Supreme Court. The confirmation hearings promise a robust debate on the role of empathy and on the role of experience in American law. Right now at Fox News one K.T. McFarland is making charges like, Obama and Sotomayor are throwing away millenia of judicial philsophy and principles. Oh boy, this is going to be an entertaining summer--I thought it would be spent sitting in my office writing about things antebellum and otherwise not having a lot of distractions.

At some point we should talk about President Obama's invocation of Holmes' aphorism that the life of the law has not been logic, it has been experience. I'm not quite sure that Obama was using it in the same way as Holmes--Obama seemed to be thinking of it in terms of a judge's life experience, rather than the legal system's experience, no?

Anyway, there's no time to let grass grow under our feet. Here at the faculty lounge, we love lists and rankings--lists of what we all make (even when such a list treads on the privacy of those of us in the lounge--just pointing this out, so that no one thinks we play favorites or go easy on the local folks), law review rankings, law school rankings, restaurant rankings, ...

So it's probably time to start thinking about the next list of Supreme Court nominees. There will be continued issues of diversity--race, gender, religion, region, and education. Partly I suppose the likely candidates will turn on who's being replaced. If Justice Ginsburg leaves next, there will likely be different considerations than if Justice Scalia leaves next. But I'd imagine the next list will start with the primary contenders for this position: General Elena Kagan and Judge Diane Wood. Might there be a chance to reach out to some other people, too--perhaps some key academics like Pam Karlan will be on the next short list?

Full post as published by The Faculty Lounge on May 26, 2009 (boomark / email).