Legal Commentary

Jockeying Over the Next Nominee

By Jonathan H. Adler

The WSJ?s Jess Bravin has an interesting article on a debate within Democratic circles over President Obama?s next Supreme Court pick.

Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.

One thing found interesting about the story was its characterization of various prospective nominees.  Specifically, Bravin reports that the President?s lagging approval ratings could prompt a ?less-controversial? nominee, such as D.C. Ciruict Judge Merrick Garland or Solicitor General Elena Kagan.  I certainly agree that Judge Garland would be a relatively uncontroversial choice, as Garland has a well-deserved reputation as an exceptionally intelligent, moderate judge.

SG Kagan also commands wide respect, and is highly qualified even if she lacks judicial experience, but I wonder whether she would be a ?less-controversial? choice than some prospective alternatives.  As Ed Whelan notes, 31 Republicans voted against her confirmation to SG, suggesting she her nomination would start with a significant base of GOP opposition.  Given the prevailing political winds, I also wonder whether some Republicans will be more willing to fight against a nominee picked from within the administration.

I was also struck by the article?s suggestion that Judge Diane Wood would spark greater opposition than Kagan, largely due to her opinions in abortion cases.  As I?ve noted before, I?ve long thought Judge Wood was an obvious Democratic choice, and is so well-qualified that she would be safely confirmed.  I would also think that, right now, it would be easier to confirm a highly regarded appellate judge from the midwest than an administration insider.  But what do I know, I?m just a midwestern academic who?s old-fashioned enough to believe the Senate should be relatively deferential to a President?s judicial picks.

UPDATE: Justice Clinton? Color me skeptical.

UPDATE: More speculation here.

Full post as published by The Volokh Conspiracy on February 09, 2010 (boomark / email).