Selecting Souter’s successor
By Jennifer J. Foster
CNN reports today that President Obama has narrowed the list of potential Supreme Court nominees to about six, and he may make his selection in the next two weeks.
The goal is to have the Court’s successor to Justice David Souter in place by the opening of the Court’s next term in October.
Senate leaders have indicated their willingness to accommodate the president on that timeline, but only if he does not send up “a very controversial nominee,“ according to Senate Minority Leader Mitch McConnell.
So ... the list, according to those all-important completely anonymous sources:
Among the finalists are federal appeals court judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and Michigan Gov. Jennifer Granholm, said the sources, who asked not to be identified because they were not authorized to speak by the White House.
SIDEBAR: “...they were not authorized to speak by the White House.“ Believe that one, and I’ll tell you a few more. The source might not have been openly authorized to speak to the press. But rest assured, the White House knew that this news was going to be leaked out. It’s called “floating” names; you let it slip that someone is under consideration in hopes of drawing out whatever undesirable stuff might be out there about that person, so there are no surprises. If the news is so bad that the prospect is unrecoverable, no harm done; you have what Washingtonians call “plausible deniability,“ and you can just say that you weren’t ever seriously considering that person, anyway. END SIDEBAR
CNN notes that women make up all but one of the top candidates currently being given serious scrutiny, not surprising in the least given that Justice Ruth Bader Ginsburg is the only one of the nine on the current court who’s ever had ovaries.
But there is one man under consideration:
Also on the list, a source said, was California Supreme Court Justice Carlos Moreno. The 60-year-old Los Angeles, California, native was not among the early favorites mentioned by legal analysts and the media. White House press secretary Robert Gibbs previously hinted some of the names under consideration were under the political radar.
That is interesting.
Meanwhile, U.S. Sen. Jeff Sessions (R-AL), the new ranking member of the Senate Judiciary Committee (thank you, Arlen “I’m-a-happy-Democrat” Specter), met with four other white guys and President Obama today to discuss what would and what would not be palatable to Senate Republicans who still cling to the power of the filibuster—at least until Norm Coleman arrives.
I’ve heard the names of all the women before, and I have to say that I’m surprised that Napolitano and Granholm are meriting a mention here. I can’t imagine that Obama, the former constitutional law professor, would nominate someone to the Supreme Court who has never—EVER—tried a case before or written the first legal opinion.
(Wait a minute: Maybe that’s WHY they’re on the list: No opinions, tougher to oppose. I can think of another justice who didn’t have much of a paper trail as a Supreme Court nominee. His name was ... David Souter.)
Napolitano would have to leave her post as head of Homeland Security, and that would mean yet another Cabinet position that Obama would have open. In an interesting twist, she also represented Anita Hill when Hill testified against now-Justice Clarence Thomas at his confirmation hearings.
Not that that’s a disqualifier, but it would be ... awkward.
Granholm was an attorney general in Michigan. But enforcing the law, no matter how well you did it, hardly passes for the kind of experience and expertise that’s needed to interpret and shape the law. I can’t believe she’s even on this list.
As for Kagan, the Los Angeles Times pointed out about 10 days ago that she was a controversial pick even for solicitor general:
Kagan, nominated to be solicitor general, the government’s top lawyer at the Supreme Court, barely cleared the 60-vote threshold needed to avoid a filibuster in the Senate. Groups opposed to abortion rights had said Kagan supports public funding for abortions and would not defend restrictions such as parental notification statutes.
Sessions might not be looking at abortion rights as a litmus test. But ask him what he thinks about parental notification statutes. You’ll probably get a different story.
Oh, yeah; for what it’s worth (and when you’re interpreting law, it’s worth a lot), Kagan doesn’t have a day’s worth of experience on the bench, either.
So, if we were to rank this incarnation of the short list, I’d have to put my money with Sotomayor. Not only could Obama place a woman on the Court, but he could place the Court’s first Hispanic on the Court, and he has been explicit about his concern for diversity on the bench.
One name I noticed dropped off the prospect list, at least in this incarnation, was that of Dawn Johnsen. Johnsen is a former lawyer for NARAL Pro-Choice America. Her current nomination to lead the Justice Department’s Office of Legal Counsel “remains in limbo, largely because of” her work with NARAL, the Times reports:
Much of the heat on Johnsen stems from a brief she wrote 20 years ago in an abortion rights case. In one footnote, she wrote that “statutes that curtail [a woman’s] abortion choice are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment.“
Johnsen maintains that she wasn’t drawing a comparison between abortion and slavery and that her remarks were taken out of context.
No. She just used the phrase “disturbingly suggestive.“
I think that’s disturbingly suggestive of an analogy.
Anyway, even Democratic senators are backing away from Johnsen for the OLC post; Obama sending her name to the Senate for the Supreme Court would be like tossing a Molotov cocktail into the Senate after everything in it had been marinated in kerosene.
Here’s the bottom line: Republican senators expect to receive a Supreme Court nominee who is pro-choice. They accept that reality. The dealbreaker will only surface if that person has staked out an extreme position on the abortion issue, as Kagan and Johnsen have.
In other words, you can’t always win the game ... but you don’t have to be run-ruled, either.
