Amy Coney Barrett (Part 2)--"Non-Hack"

Source: Elizabeth Frantz/NY Times

“The Supreme Court’s second-newest justice is proving herself to be a non-hack —to the increasing consternation of MAGA.”

That's Matt Ford, Associate Editor of the politically liberal The New Republic magazine.

But it's not just liberals who have nice things to say about Justice Amy Coney Barrett. Edward Whelan, former law clerk to Justice Antonin Scalia, holder of the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, and one of the nation's foremost conservative legal commentators had this to say: "She’s a careful, precise thinker, and she’s been thrust into this very volatile environment.” 

Jodi Kantor, who has reported behind-the-scenes stories about the Supreme Court for the New York Times, compared Barrett favorably to others on the Court: "Justice Barrett has favored a more deliberate approach than some of her colleagues."

These views of Amy Coney Barrett are far more common among the less-partisan observers of the Court than those of the uber-MAGA crowd, some of which were included in the previous post. (See Amy Coney Barrett (Part 1)--"Rattled Law Professor.")

Again, the facts. Here is my graph from the previous post that shows how Justice Barrett has been voting:

(click to enlarge for a better view) 

In the 29 ideologically laden cases last term--i.e., those clearly identifiable as "politically conservative" versus "politically liberal" among the 64 full-appeals decided--Barrett was unmistakably on the conservative side of the Court. No doubt about that when her 62% conservative voting is contrasted with the 7% and 10% conservative records of Justices Jackson and Sotomayor, respectively. Of course, her record is also a far cry from the 93% conservative voting of both Justices Thomas and Alito. So yes, it's clear to see why she would be a disappointment to the partisans who expected her to be or hoped her to be far more ideologically disposed.

But worse than that for the most die-hard Trump supporters is her record in cases directly involving Trump himself or his policies. Let's take a look at Barrett's record, as well as those of her colleagues, in those cases.

There were 22 such cases. These included 16 that were decided on an emergency basis--i.e., the so-called "shadow docket," where there were no arguments held and no full briefing. Just a petition for relief by a party unhappy with a decision by a lower court, and a vote in conference by the Justices to grant or deny the request. 

In fact, most of the cases directly involving Trump or his policies were decided that way last term. And most of the time, the Court's majority gave absolutely no reason for its decision. As the headline from one of veteran Court reporter Adam Liptak's column summarized the situation: “Supreme Court Keeps Ruling in Trump’s Favor, but Doesn’t Say Why.” (NY Times, July 16, 2025.) 

Here's what the voting looked like in all those 22 "Trump Cases"--full appeals and "emergency" decisions: 

(click to enlarge for a better view) 

As was clear from the previous graph showing Justice Barrett's 62% politically conservative voting in the full appeals, her 68% voting in favor of Trump and his policies, as depicted above, is hardly the record of a political liberal. Certainly not when contrasted with the 0% and 5% pro-Trump voting of Justices Jackson and Sotomayor.

But neither is Barrett's record even close to the 100%--yes, 100%--pro-Trump voting of both Justices Thomas and Alito. No, Justice Barrett's voting in the cases directly involving Trump or his policies--full appeals plus emergency decisions--is not a record of a blind partisan. Not a record of a blind Trump loyalist. Hence, the ire of the uber-Trumpists and the respect of just about everyone else. Even cautious optimism among some liberals.

By way of illustration, Barrett's record this year included voting in a 5-4 majority to order the Trump administration to unfreeze nearly $2 billion in foreign-aid reimbursements, in another 5-4 majority refusing to recognize Trump's claimed presidential-elect immunity, in a 6-3 majority to preclude presidential hiring and firing of certain "lesser" executive officials, and in dissent with the three liberal Justices to uphold broad authority of the Environmental Protection agency. 

Lest it be thought that Justice Barrett's voting last term could have been an aberration. Perhaps it was a particular mix of cases that resulted in her voting "pro-Trump" much less than other Republican appointees on the Court. It turns out that Barrett's record in cases involving Trump or his policies has consistently been much less pro-Trump than some of her colleagues.

Indeed, eminent Supreme Court scholar Lee Epstein, who probably tracks the voting records of the Justices more closely than anyone else, has compiled all the votes on former and current President Trump since Justice Barrett was appointed to the Court--by Trump--in 2020. Here's what Lee Epstein and her colleagues found: 

(click to enlarge for a better view) 

According to the Epstein & Colleagues calculations, Barrett has voted pro-Trump less than any other Republican appointee. Her 59% record since she joined the Court is not only just above 50-50 pro-Trump, but it is a far cry from the 94% for Justice Alito and the 88% for Justices Gorsuch and Thomas.

To be sure, her voting is also a far cry from the heavily anti-Trump records of Justices Sotomayor, Jackson, and Kagan. But still, Barrett's record is hardly one to be applauded by the MAGA crowd or even the more moderate Trump partisans. 

A "rattled law professor," "Amy commie Barrett," "evil," and "a disgusting fraud." Or perhaps a "non-hack," "careful, precise thinker," one who "favor[s] a more deliberate approach than some of her colleagues."

Well, the facts of Justice Barrett's voting record demonstrate that she is certainly a political conservative. She wouldn't be confused with a liberal--let alone a communist. Except by the most ideologically or politically fanatical out there.

But neither does Justice Barrett's record confirm what many political liberals feared she would be. Nor does it confirm the view adhered to by many political liberals that she remains hopelessly tied to the right wing of the Court. Conservative, yes. But also a Justice who, like Justices Sandra Day O'Connor and Anthony Kennedy before her--or even John Marshall Harlan II before them--has a strong, confident, independent streak. She has shown herself to be unafraid and unhesitant to break from her usual or expected ideological allies on some of the most politically-charged cases before the Court.

Splinters in the 6-3 Supreme Court (Part 2: Amy Coney Barrett cont'd)

Justice Barrett with liberal Justices Sotomayor, Kagan, and Jackson.
Credit: Supreme Court Collection

On January 9, shortly after this series began (see Part 1), the Supreme Court rejected then-President-Elect Donald Trump's request to halt the New York State criminal proceedings against him. Specifically, he sought to have the Court stay the sentencing proceedings incident to his multiple state criminal convictions. In a 5-4 decision, the Court declined to do so.

(click to enlarge for a better view)

As is customary, the Court's order was unsigned. But Justices Thomas, Alito, Gorsuch, and Kavanaugh did go on record that they disagreed and would have granted Trump's request.

Most notably, perhaps, Justice Amy Coney Barrett, who, like Gorsuch and Kavanaugh, was appointed by Trump, joined Chief Justice Roberts and the three liberal Justices--Sotomayor, Kagan, and Jackson--to deny Trump's request. She is increasingly showing signs of independence and distance from the Court's most politically conservative Justices--Thomas, Alito, and Gorsuch. Her vote in this case is another illustration of what appears to be her emergence as a moderating voice within the 6 - 3 conservative Republican majority. 

Here are some other recent examples:

Trump v. U.S. is, perhaps, the most publicly debated decision of the last term. The 6-3 majority, speaking through Chief Justice Roberts, ruled that presidents--here, Donald Trump--are absolutely immune from criminal prosecution for any acts in the course of exercising core presidential functions. They are also presumptively immune regarding other presidential functions.

Justice Barrett, while labeling her separate opinion a concurring one, actually dissented in major part:

I agree with the dissent that the Constitution does not justify such an expansive view.... [For example,] a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.

Barrett also took direct aim at the majority's rule prohibiting any mention of the protected presidential function related to the president's criminal activity. That made little sense, according to Barrett. It effectively precluded prosecution, not only for the exercise of a presidential function, but for the clearly criminal conduct itself:

The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution...excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability. 

[I cannot resist adding that several Justices, who insist that they adhere to the text of the Constitution and do not make policy, nevertheless embraced presidential immunity, which is nowhere mentioned in the Constitution, and they did so purely for policy reasons.Which is not to say anything about the merits of the policy. Only that it is policy, and not constitutional text.]

Trump v. Anderson, although not as heatedly debated as the immunity decision, is no less controversial among constitutional and judicial scholars. The seemingly plain language of the 14th Amendment's section 3 declares that an insurrectionist is simply disqualified from holding any official government office: No person shall...hold any office...under the United States, or under any State, who...shall have engaged in insurrection or rebellion.

Despite that language of automatic disqualification, the Court, in a per curiam opinion, unanimously rendered a practical decision that "States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."

The Court was divided 5-4, however, on an equally critical matter. If a state cannot enforce the disqualification under the 14th Amendment and keep an insurrectionist off the state's ballot, then who can? The 14th Amendment says nothing about that. Again, it simply declares that an insurrectionist is ineligible to hold office, without any conditions. But the bare majority of five held that the "responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress." 

Among the remaining four Justices, three of them--Sotomayor, Kagan, and Jackson--in a joint opinion, took issue with the majority for deciding a question unnecessary to the case and deciding it wrongly:

The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation...In doing so, the majority shuts the door on other potential means of federal enforcement.... It [for example,] forecloses judicial enforcement of that provision....[N]othing in Section 3’s text supports the majority’s view. 

Justice Barrett--like the three liberal Justices, but in a very brief, restrained separate opinion--said that the majority should not have specified a single, lone means of enforcing the insurrection disqualification of the 14th Amendment. Not only was that unnecessary, but at a particularly volatile time, it generated intense disagreement within the Court--which she also viewed as unfortunate. As she put it, this case,

does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. 

In another case related to the January 6, 2020 rioters at the Capitol, Fisher v. U.S., the Court ruled that the phrase "obstruction of an official proceeding," as used in the Sarbanes-Oxley Act of 2002, was intended to apply only to impeding official access to records, documents, and similar evidentiary objects.

Justice Barrett--writing for herself and liberal Justices Sotomayor and Kagan--disagreed with the other five Republican appointees (who were joined by Justice Jackson).

Barrett minced no words. In her view, the statute's application was "straightforward," and the majority was stretching the limits of the judicial role by limiting the very terms the legislature chose. The actions of the January 6 "mob" clearly fit within the scope of the statute:

The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results. Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. 

The Court...does textual backflips to find some way— any way—to narrow the reach of [the statutory language].

In other cases, unrelated to the conduct of Trump or the January 6 "rioters," Barrett also broke with her more natural conservative Republican allies on the Court. A brief glimpse at her positions in a sampling of these demonstrates an unmistakably independent, more moderate jurisprudence.

In Ohio v. Environmental Protection Agency, she dissented--joined by the three liberal Justices--from the majority's holding that the EPA's "Good Neighbor Rule" [i.e., protecting downwind states from upwind states' air pollution] was, in the words of Justice Gorsuch, "arbitrary" and "capricious." Barrett criticized the majority for underestimating the consequences of its decision to block the EPA rule: “leav[ing] large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years.”

In the Murthy case, Barrett wrote for a 6-member majority, above the dissent of the Court's most politically conservative Justices--Thomas, Alito, and Gorsuch. Rejecting the lawsuit brought against Biden administration officials for communicating with social media companies, Barrett explained that the complaining parties failed to show any "substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant.”

In the Chiaverini case, Barrett joined that same 6-Justice majority over that same 3-Justice dissent. She signed onto Justice Kagan's opinion that upheld the validity of a malicious-prosecution claim based on a legally meritless criminal charge, even if there was some justification--i.e., probable cause--for some other charge in the same criminal proceeding. 

In Moore v. Harper, Barrett again joined the six-judge majority over the dissent of Thomas, Alito, and Gorsuch. This time, she agreed with Chief Justice Roberts's opinion that the Constitution, although giving state legislatures the power to draw the lines for congressional districts, did not mean free a state legislature to violate state constitutional law or decisional rulings in doing so.

Finally--for this post at least--in Haaland v. Bracken, Barrett penned the majority opinion, over separate dissenting opinions of Justices Thomas and Alito. (Justice Gorsuch joined the majority to embrace, as he usually does, the position more favorable to Indian tribes.) The Court, in an opinion by Barrett, upheld the constitutionality of the Indian Child Welfare Act of 1978. Among other provisions, aimed at keeping Native American children with Native American families, the Act mandates a preference that Native American children, who are removed from their biological families, be placed with extended family members or other Native homes. 

Again, this is just a sampling of cases in which Justice Amy Coney Barrett sided with positions opposed by other conservative Republican appointees on the Court. Sometimes her positions differed from those adopted by all the other five Republican appointees. Sometimes she was at odds with only the three most politically conservative Justices--agreeing not only with the Court's three liberals (Sotomayor, Kagan, and Jackson), but also with the Court's other more moderate conservatives (Roberts and Kavanaugh). 

The point here is not whether Justice Barrett's positions are preferable when she opposes the more politically conservative positions of some of her colleagues. [Although--disclosure--I do personally prefer her positions.]

Or that her positions are more legally correct. [Unless one is ideologically blind, it must be acknowledged that there are strong legal arguments on both sides in these cases.]

Nor is the claim here that Barrett is turning liberal. No, she still joins the politically conservative Justices on most issues that divide the Court. [Again, unless one is ideologically blind, it's hard to be certain that she is less wise and fair when she's with the conservatives and more so when she opposes them.]

The only point here is that Justice Barrett is showing an independence--at least some significant sparks of it-- from her more politically natural allies on the Court. In this regard, she may be less of what political liberals feared the most about her. Indeed, she may be evolving--like Justice Sandra Day O'Connor did--to become a centrist on the Court who typically avoids the more ideological extremes-- of either side of the Court's spectrum.

[I, for one, do hope so.] 

Today's Partisan Gerrymandering Case: 7-2 for "It's Still Unsettled"

In Gill v. Whitford, the case involving hyper-partisan gerrymandering, the Supreme Court chose not to render a final decision. Instead, the Court returned the case to the lower court for further proceedings.

At issue was the carving of voting districts by a state legislature--here, in Wisconsin--in such a way that favors the political party in power (the Republicans) over a different party (the Democrats), in gross disproportion to the votes the respective parties received statewide, even when the disfavored party receives a majority of those votes. Several Democratic voters challenged the gerrymandering as an unconstitutional dilution of their right to vote. The Supreme Court neither rejected nor upheld their challenge.

What the Court did do was to send the case back to the court below for a fuller exploration of the question of "standing." That is, the Supreme Court returned the case to the lower federal court to allow the two sides an opportunity to more fully litigate whether the challengers had suffered a personal and particularized injury to their voting rights. If the challengers can demonstrate that, then they have the right to bring this lawsuit complaining about the gerrymandering and the Supreme Court has the constitutional authority to hear the case on appeal. If the challengers cannot so demonstrate, then the opposite.

Chief Justice Roberts wrote the majority opinion which was joined by all the Justices except Thomas and Gorsuch. Those two would simply have dismissed the challengers lawsuit and put an end to the case.

In any event, despite the Court's decision not to reach the merits of the case and to rule on the constitutionality of hyper-partisan gerrymandering, today's ruling is not without some especially notable aspects. Let's consider a few of them:

• Four of the Justices--the Court's liberals: Ginsburg, Breyer, Sotomayor, and Kagan--fully joined Chief Justice Roberts majority opinion. But they also joined together in a separate concurring opinion, authored by Kagan, making clear their shared view that hyper-partisan gerrymandering is unconstitutional. As Kagan put it: "Courts have a critical role to play in curbing partisan gerrymandering...Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law."
• Chief Justice Roberts' opinion for the Court--which those 4 liberal Justices joined--did not reject the substance of Kagan's concurring opinion. Instead, Roberts' opinion made plain the Court's view, which the liberals shared, that the question of standing had to be resolved as a threshold matter before the Court would reach the substantive merits--i.e., the constitutionality of hyper-partisan gerrymandering.
• Related to that, Chief Justice Roberts' opinion for the Court left the door open to reconsidering the Court's past decisions which severely limited challenges to partisan gerrymandering--challenges that Kagan's concurring opinion would allow. Roberts' opinion twice referred to "our cases to date." [My emphasis.] His opinion also noted that "We leave for another day consideration of other possible theories of harm" expressed in Kagan's opinion. So again, the Court did not reject the possibility of challenges to hyper-partisan gerrymandering. Rather, the Court actually suggested the possibility of revisiting past decisions in order to allow them.
• Justices Thomas and Gorsuch were alone in rejecting the Court's decision to allow the challengers an opportunity to demonstrate that their complaint is about "individual legal rights," not simply "generalized partisan preferences."
• Among the critical questions to be addressed in the further proceedings at the lower court and, ultimately, at the Supreme Court when the case almost assuredly returns are:
• Can the challengers demonstrate injury to their voting rights that go beyond their own voting districts?
• Can they demonstrate that their injury necessarily involves the neighboring districts--i.e., redrawing those districts necessarily affected their own districts and, therefore, their own voting rights?
• Can they demonstrate that their injury involves the entire statewide redrawing of districts, because that affected the statewide influence of their own district representatives?
• How narrowly personal or more broadly systemic will the Supreme Court construe the challengers' standing--and thus their right to challenge and the Court's jurisdiction to hear--complaints about partisan gerrymandering?
• Finally, the Court's narrow disposition of this case somewhat mirrors the Court's disposition of the Masterpiece Cakeshop case (where the baker refused to create a cake for the celebration of a same-sex marriage; see The Cakeshop case: What the Court Did NOT Decide). In that case, the Court refrained from deciding whether or not religious objectors are entitled to an exemption from an anti-discrimination law. Although the Court's opinion in that case outlined the pros and cons on that issue, it ruled on the narrow ground that the baker had not been given a fair hearing below. In that case, as in this gerrymandering case, the Roberts Court garnered a broader consensus, by avoiding the broader underlying question and, instead, issuing a narrower and less final resolution. This may well be the approach Chief Justice Roberts resorts to, when possible, to avoid yet another decision where the Justices are deeply divided--and embarrassingly so--along strict partisan lines.

We may get another decision in a major case this coming Thursday. There are some tough, controversial ones to come. (See Supreme Cases Awaiting Decision.) We shall see.

(Part 11--Sotomayor's & Kagan's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Justices Sonia Sotomayor and Elena Kagan, both appointed by President Obama, are the Court's newest members. Sotomayor joined the Court in August 2009. Kagan in August 2010. Consequently, unlike the other Justices whose records we have already reviewed, Sotomayor and Kagan have participated in only a few of the racial discrimination cases decided by the Court under Chief Justice Roberts.

Sotomayor has participated in only 7. Kagan in only 5. That's not much of a record for either Justice. Indeed, the sample is simply too small to tell us anything meaningful for some of the categories of voting we've been considering.

On the other hand, for some categories, the voting patterns for Sotomayor and Kagan are so consistent and so clear that even the relatively small samples are revealing. Let's take a look.

We'll begin with voting on what I've been categorizing as "racial equal protection." As explained in previous posts, this category of voting reflects the degree of support for equal treatment regardless of race--e.g., support for measures to eliminate unequal treatment, whether racial discrimination or racial preferences; support for the enforcement of equal rights and benefits; support for strict equal treatment regardless of whether Whites or Racial Minorities favor the result or may be the beneficiaries in any particular case.

(click graphs to enlarge)

GRAPH 1

The figures depicted in graph 1 reflect voting in 5 non-unanimous cases for Sotomayor, and 4 for Kagan. Notably, although the samples are relatively small, both Justices voted in support of strict equal treatment in every one of the cases in which they participated. These involved enforcing voting rights protections, supporting racial discrimination lawsuits, enforcing laws against retaliation, and prohibiting racial preferences in college admissions absent the showing of a compelling need.

Notably also, in all of these cases but one, the Court was divided 5-4, with the 5 Republican Justices on one side and the 4 Democratic Justices--including Sotomayor and Kagan--on the other. Stated otherwise, in every one of those cases but one, the 5 Republican Justices opposed the enforcement of equal treatment; the 4 Democratic Justices supported it.

The 2 Junior Justices & NY Judges (Part 6 of Supremes vs NY Court of Appeals: Judicial Output [with Charts!])

There are 2 members of each court whose judicial output we have yet to survey. Sonya Sotomayor and Elena Kagan of the Supreme Court. Jenny Rivera and Sheila Abdus-Salaam of the New York Court of Appeals. The most recently appointed Justices and Judges.

As mentioned in the last post, there's a wrinkle here. Neither Judge Rivera nor Judge Abdus-Salaam was on the New York court for the entire year. (Recall, we are reviewing summer break 2012 to summer break 2013). Rivera didn't join the court until February. Abdus-Salaam till May.

So for the purposes here, let's combine the records of each of those Judges with the records of their predecessors who sat on the court in the earlier part of the year. Rivera with that of Carmen Ciparick (who left because of mandatory age retirement at the end of 2012). Abdus-Salaam with that of Theodore Jones (who tragically passed away in November 2012).

But even those combinations do not constitute a full year. The Ciparick to Rivera seat was vacant for the Court of Appeals' January session and 1/2 of the February one. The Jones to Abdus-Salaam seat was vacant most of the year--neither Judge participated in decisions of appeals rendered from November through May.

Nevertheless, simply for the sake of completeness, we'll include those combinations in the graphs for this post. But we'll also include the averages for the Court of Appeals as a whole--and for symmetry, that for the Supreme Court as well--to have something meaningful with which to make comparisons.

With the foregoing in mind, let's get going.

CHART 1

(click to enlarge)

First, remember that the figures for the 2 New York Judges represent less than full years. And yet, the total number of judicial opinions authored by the Ciparick-Rivera seat (24) was still greater than that for Justice Sotomayor (17) and virtually the same as that for Justice Kagan (25).
(The number of total opinions by the Jones-Abdus-Salaam seat represents only 1 and 1/2 months of cases and, consequently, is not really amenable to any meaningful comparisons.)

Regarding that total number of judicial opinions by Justice Kagan, it is very close to the Court of Appeals average (27). In fact, it is greater than the Supreme Court average (~21) which, in turn, is lower than that of the New York court.

Let's look inside these figures. First, majority opinions.

CHART 2

The 7 Supreme Court Justices we've looked at in previous posts each authored 8 or 9 majority opinions. Sotomayor and Kagan were no different. That's half the Court of Appeals average (~17). In fact, it is half the number of majority opinions authored by the less-than-full-year Jones-Rivera seat (17).
(Again, the number for the Jones-Abdus-Salaam seat, representing only 1 and 1/2 months of cases, is not really amenable to any meaningful comparisons.)

(Part 3--the "Yoots") Court Elders: The Septuagenarian Justices

In parts 1 and 2 of this series, we took a quick look at the 4 septuagenarians currently on the Court--Justices Ginsburg, Scalia, Kennedy, and Breyer. Specifically, we pointed to their ages-- now and when President Obama's 2nd term ends--their ideological leanings, and the likelihood of their retiring in the next 4 years.
[See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012.]

Here's a recap:

(click to enlarge)

In short, their ages range from the oldest, 79 ( Ginsburg), to the youngest, 74 (Breyer); and by the end of Obama's term, 83 to 78. Their years on the Court, by that time, will range from 30 (Scalia) to 22 (Breyer).

As for the remaining 5 Justices, they are all at least 10 years younger than the youngest septuagenarian. Just how young are these relative young-ens (or "yoots," per Joe Pesci's Vinny Gambini in My Cousin Vinny)?

Part 10: Focus on Retired Justice Stevens. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice John Paul Stevens.
Now retired; he was the immediate predecessor of Justice Kagan.

His final year on the Court was 2009-2010.
That's the first of the 2-year period we've been examining in this series of posts.
So, if for nothing else but completeness, we'll look at Stevens record for that year.

He was appointed by a Republican, President Gerald Ford.
But over the years, Justice Stevens' voting became increasingly liberal.
He eventually became the leader of the liberal wing of the Court.

Stevens sympathized with the policy priorities and preferences of liberal Democrats on most issues, and his scathing dissent in Bush v. Gore was no surprise. In fact, that dissent actually mirrored others he authored condemning the rightward--and Republicanward--drift of the Court on many issues.

Let's take a quick look at his record in that final year before he retired.

(click to enlarge)

GRAPH 1

Of the 12 highly partisan-charged cases decided by the Court in the 2-year period we've been examining in this series, 7 were decided during Stevens' final year. He voted the same way a Democratic politician would be expected to vote in all but 1. That's 86%.

Part 9: Focus on Justice Kagan. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Elena Kagan.
President Obama's 2nd appointee.

Neutral, non-partisan, non-ideological, disinterested, detached, moderate, and leaving policy up to the other 2 branches.

Just like the rest of the Justices.

Which means not really, not much, maybe not at all.

Justice Kagan was a member of the Court for only the latter of the two terms examined for this series of posts. But even after just one term, there is little that's ambiguous about her record. At least with regard to the partisan and ideological character of her voting.
[For earlier discussions on New York Court Watcher about Justice Kagan and her confirmation hearings, see
http://www.newyorkcourtwatcher.com/search/label/Kagan_Elena]

So, what does Kagan's record look like for that one year--her first year on the Court? Let's begin, as usual, with those highly partisan-charged cases.

(click to enlarge)

GRAPH 1

100% voting like a partisan Democratic politician would.

Guns & Rights & The States (Concluding Q's from the Kagan Hearings, Part 8)

[Yes, the full Senate confirmed Elena Kagan by a vote of 63 to 37 on August 5th. She has already been sworn in as a Justice of the Supreme Court. But questions, about her and about the questions at her hearings, are hardly resolved. Ditto for the Supreme Court's 2 recent decisions about gun rights. And those, in turn, raise perennial questions about the role of the Justices and about constitutional rights.]

The 2d Amendment's purpose was to guarantee that the federal government would not interfere with the right of states to maintain their own "well-regulated" armed forces. Only by ignoring the explicit prefatory language of the 2d Amendment can the conservative Justices (or conservative Senators or anyone else) insist that the 2d Amendment was intended to guarantee an individual's rights. And only by tortured logic can the 2d Amendment's right of states against federal restrictions be made to apply against the states themselves.

Sorry, but the conservative Justices and Senators are fudging (to put it as kindly as possible). Driven largely by ideological intransigence.

But that's only half the story.

Freeze-Dried Constitution?--The Intent of Equal Protection (continued--Q's from the Kagan Hearings, Part 6)

I'll go out on a limb. America is a far better place because the Supreme Court and its Justices eventually went beyond the original narrow purpose of Equal Protection. The Nation was well served when the Supreme Court and its Justices moved beyond a strict application of "the intent" of the 14th Amendment's Equal Protection and, instead, applied the grand American principle and ideal of equal treatment embodied in that provision.

I'll go further out on that limb. Most of those who insist on the Court and its Justices applying "the intent," or "strict interpretation," or "original meaning," or however they label it, actually approve the decisions that eventually applied the grander principle and ideal. They will reject the earlier, narrower, stricter, intent-based decisions. At the least, they will say that they do.

Remember what we're talking about. As discussed in the last post, Equal Protection was introduced into the Constitution following the Civil War, with the ratification of the 14th Amendment in 1868. It was only intended to insure narrowly contemplated legal rights for the newly freed Black slaves. E.g., the right to make contracts, to own property. to sue and testify in court, and the like.

Equal Protection at the time was NOT intended as the ideal that Americans cherish today and view as a birthright. It was NOT intended to end racial segregation. It was NOT intended to allow Blacks to marry Whites. It was NOT intended to give women equal rights. NOT even to own property or enter the manly professions. It was NOT intended to insure the fair treatment of the elderly or the disabled or the foreign-born, etc., etc., etc.

Freeze-Dried Constitution?--The Intent of Equal Protection (Q's from the Kagan Hearings, Part 5)

Black children attending the same schools as white children. No.
Blacks riding in the same train cars as whites, or in the same section of the bus. No.
Blacks staying in the same hotels and motels or eating at the same restaurants as whites. No.

Blacks being treated the same as whites in criminal law. No.
Blacks marrying whites. No.

Equal rights for women. No.
Women voting. No
Women entering the professions. No.
Women able to attend the same colleges and universities as men. No.

Equal rights for Asian-Americans. No.
Equal rights for foreign born legal residents. No.

Equal rights for children born to non-married couples. No.
Equal rights for fathers in adoption and custody. No.

Equal rights for gays and lesbians. No.

Equal rights for whites. No.

No. None of that was intended by Equal Protection in the Constitution.

Our Founding document, the Declaration of Independence, did declare that "all men are created equal." But when the Constitution was adopted 11 years later, the Framers had not included any provision reflecting Thomas Jefferson's "self-evident truth." The Bill of Rights, ratified 5 years after that, included no such provision either.

Kagan Nomination--Even More Q's, Pt. 4 (Judicial Interpretation: "law as written," "the intent," "precedent," "legislative & people's wishes," etc.)

Haiti
6 Months Since the Earthquake
[Again: No, I'm not there. Just keeping Haiti in mind, as well as other places where tragedy has caused suffering that demands assistance and reminding.]
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It's pretty plain that the plain language of the law often isn't so plain and, even when it is, it often can't be applied that way.

"Intent," whether "original" or "particular" or "what they meant" or any other variant, presents just as much difficulty. Let's look at that.

If the plain language of the law is clear and its application makes sense, there is usually little reason to unearth the law's "intent." But as we discussed in the last post on New York Court Watcher--and in other previous posts to a point approaching ad nauseam--for Judges or Justices to simply apply the law "as written" would oftentimes make for extremely unreasonable decisions. In fact, the decisions would horrify the most ardent proponents (Senatorial & otherwise) of applying the law "as written."

We saw this with the Constitution's explicit tolerance for "no law" limiting 1st Amendment freedoms. No restrictions on any speech at all? We also saw this with the 14th Amendment's categorical prohibition against "any person" being denied equality under the law. Any person whatsoever, regardless? Likewise for the 2d Amendment's unqualified dictate that the right to bear arms "shall not be infringed." Not even reasonable limitations?

We also considered the difficulties in simply applying "as written" the Constitution's "due process" protection of "liberty." Neither of those terms, let alone the clause within which they are contained, are particularly amenable to extracting some plain meaning. The contours of "liberty"? The process that's "due"?

[See the discussion in Kagan Nomination--More Questions, Pt. 3 (Judicial Interpretation: "law as written," "the intent," "precedent," "legislative & people's wishes," etc.) , July 12, 2010.]

Kagan Nomination--More Questions, Pt. 3 (Judicial Interpretation: "law as written," "the intent," "precedent," "legislative & people's wishes," etc.)

Haiti
6 Months Since the Earthquake
[Again: No, I'm not there. Just keeping Haiti in mind, as well as other places where tragedy has caused suffering that demands assistance and reminding.]
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Those Kagan hearings are over. But, as with hearings in the past, there are plenty of questions. Both about the nominee and, perhaps even more so, about the issues raised. Yep, "The song is over, but the melody lingers on."

[For anyone interested, a video of a brief interview I did with Liz Benjamin on the hearings is available at:

http://capitaltonight.com/2010/06/vins-take-on-kagan-hearings/.]

The questions raise questions. About the nominee, about the Senators who questioned her, and especially about the questions themselves. About the Justices' and the Court's role in interpreting (should be "interpreting") the law. In the long run, it's those questions that are the most critical. The assumptions they make. The nonsense, that is, that they--and the Senators who ask them--presuppose.

Will the nominee apply the law "as written"? Will the nominee interpret the law in accord with "the intent" of those who enacted it? Will the nominee abide by "precedent"--and especially "settled precedent"? Will the nominee defer to the "wishes," or "choices," of the people and their representatives in Congress and in the States?

And the question that should be asked of those who ask such questions: Really? [Or with due credit given to the SNL Weekend Update skit with Seth and Amy: REALLY!?!]

So when the Justices decide a case, we want to be sure they do what the Senators suggest, and sometimes insist? When the Court confronts Constitutional issues--because that's what the Senators are virtually always asking about--the Justices should abide by the Senators' exhortations?

Kagan Nomination--Questions for Her & Her Questioners, Part 2 ("Judicial Activism" & the Constitution [Free Speech])

Free Speech.

Free: "no law abridging the freedom."

Speech: "of speech."

That's how the First Amendment of the Constitution states it.

Pretty unequivocal: "no law."

Pretty unambiguous: "speech."

So strict interpretation should be simple. Just applying the law rather than making it should be a cinch. Objectively and neutrally enforcing the law, and avoiding one's own opinion of what's wise and reasonable should be a snap.

Well, the only thing that's simple, a cinch, and a snap is that none of those things really are. And THAT should be a fairly easy one for Elena Kagan and for the Senators questioning her.

Strictly interpreting free speech, just applying it, and avoiding one's own opinion is more than difficult. It's impossible. And this is true--even more so--for other provisions of the law that are not as straightforward as the First Amendment. That would include most legal provisions. Indeed, it would include virtually all legal provisions that raise issues difficult enough to make it to the Supreme Court for the Justices to interpret.

So when the Senators ask Kagan about these sorts of matters and insist on strict interpretation, just applying the law, etc., etc., ad nauseam, you know it's the purest nonsense. And if a nominee robotically responds, "I-will-just-apply-the-law-to-the-facts-of-each-case-before-me-and-my-own-personal-views-will-not-affect-my-decisions" [like the previous nominee, now-Justice Sotomayor did at her hearings], you know that is also the purest nonsense.

Kagan Nomination--Questions for Her & Her Questioners ("Judicial Activism" & the Constitution)

Like the topic addressed in the immediately preceding post on New York Court Watcher (judicial experience), this one will be somewhat easy to deal with. (See Supreme Court: Kagan Nomination--the "No Judicial Experience" Bugaboo, June 2, 2010.)

The issue of "judicial activism" itself is NOT easy to deal with. THAT's what's easy.

Any suggestion to the contrary--i.e., that "judicial activism" is a simple issue--is nonsense. Any suggestion, intimation or outright insistence by Senators at the confirmation hearings or by commentators that judicial activism is inappropriate, illegitimate or even evil is based on ignorance, amnesia, crass political posturing or ideological blindness. "Judicial activism," like virtually anything else of consequence, is not a simple yes or no matter. THAT--not "judicial activism" itself--is easy.

To illustrate, let's consider the issue of judicial activism at work. And we won't put it to work in the context of some obscure, ambiguous, or technically complicated legal text. Let's see how it works in the context of some familiar, unequivocal, and clear (pellucidly so!) law. Let's take a well-known provision of the Constitution. Not something buried in one of the Articles. But something prominent and right up front.

The First Amendment, for example. Specifically, the guarantees of freedom of religion, free speech and free press. The language could not be more direct. "Congress shall make no law...prohibiting the free exercise thereof [i.e., "religion"--the term previously stated and being referred to]; or abridging the freedom of speech, or of the press."

Elena Kagan, President Obama's Supreme Court nominee, will surely be questioned about judicial activism. She'll be asked about (and no doubt warned against) making law rather than merely applying it, about loosely or expansively interpreting the law rather than strictly doing so, about injecting her own views into the law rather than reading it objectively, etc., etc.

She'll be asked in a variety of ways about whether she will be restrained as a Justice or be an "activist." Whether she will simply apply the law itself to the facts of the cases that come before her? Or whether she will apply her own sense of what's wise and foolish, what's just and unjust, what makes sense and what does not, what's true to the nation's ideals and what isn't, what's good for the Republic and what is not?

The Senators doing the asking should themselves be asked--or ask themselves--if they've really given much thought to those questions. If they've really considered the ramifications of those questions. If they really believe what they are suggesting about restraint versus activism. About simply and strictly applying the law (the apparently unvarnished good). Versus injecting a Justice's own view of what makes sense and what is just (the supposedly self-evidently bad).

So for Kagan and the Senators questioning her, let's put that to work on the very first Amendment to the Constitution. "No law prohibiting the free exercise of religion." "No law abridging the freedom of speech." "No law abridging the freedom of the press."

Supreme Court: Kagan Nomination--the "No Judicial Experience" Bugaboo

This is probably the easiest consideration to deal with, and to dismiss.

In fact, it is so clearly a non-issue for any serious student of the Supreme Court, that any Senator or critic of Elena Kagan who raises it as a concern is either ignorant of Supreme Court history or simply being a bit less-than-clever in using it as a proxy for something else. Maybe something less speakable.

Felix Frankfurter--the FDR confidant and then Court appointee, who might well have been the most influential man in American national policy at the time--might have been exaggerating. But just a bit. In his famous lecture addressing the subject, he made no bones about it: "One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero."

Zero! And history seems to confirm his assessment.

Chief Justice William Rehnquist had no judicial experience when he was first appointed to the Court by President Nixon. Neither did Chief Justice Earl Warren when Eisenhower appointed him. (That's one of the leading conservatives in the Court's history, and one of its leading liberals. There's no partisan or ideological side to this issue.)

Among other Chief Justices, there's Harlan Fiske Stone (when first appointed to the Court by Coolidge), Charles Evan Hughes (when first appointed by Taft), and the universally acclaimed "Great" John Marshall (appointed by John Adams, his only experience being a "recorder" in a city court in Richmond, Virginia for a couple of years early in his legal career).

Indeed, about 40% of all Justices had no prior judicial experience. More pointedly, among the truly great Justices in the Court's history, most had no or virtually no prior judicial experience.

There is considerable consensus about who the "great" Justices were. And of the dozen or so widely considered to be the greatest in Court history--in repeated studies, rankings and polls of Court scholars (law, political science and history)--virtually all of them were judicial-experience-challenged. Let's take a quick survey.

Kagan's Nomination, The Roberts Court at 5, Lippman & the NY Court, Decisions & Voting, Etc.--and the Road Trip

Haiti

[Again, just to be clear: No, I'm not there. Just keeping Haiti in mind, as well as other places where tragedy has caused suffering that demands assistance and reminding.]
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Back to New York Court Watcher after a BBQ Road Trip with my son Martin in celebration of his graduation from law school. [More about that below for anyone interested.]

Supreme Court: Short List to Replace Stevens (Part 1: Elena Kagan)

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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Whoever is appointed to succeed Justice John Paul Stevens will not "replace" him in any true sense of the word. The new appointee will fill a seat on the Court following a vacancy created by Stevens' retirement. But, it will be a long time before the new appointee, regardless of who that might be, will have the wisdom and experience, both judicial and life, of Stevens.

That's a different question than the one we're dealing with in this post. We'll do a couple--maybe a few or even several--on the short list and then on whomever President Obama actually nominates. [Which also raises the timeless question of the precise difference between "few" and "several." Then, of course, there's the perhaps more temperamental cum rhetorical and semantical issue of when "several" becomes "many" or, alas, "too many." Now that's a debate we can all sink our teeth into.]

In any event, for this 1st post in an inevitable series on New York Court Watcher dealing with the short list to replace Stevens--i.e., my speculation + presumption + semi-informed supposition of whom Obama is really considering--we'll look at some women who are possibilities. Some of them were on the short list (or, what I figured was the short list) the last time to replace Justice David Souter.

Here is the first of them. She is considered the frontrunner by many. A brief description and a few political considerations follow.

Elena Kagan
She's the former (and first woman) Dean of Harvard Law. She was educated at Princeton, Oxford, and Harvard Law. She was as a law clerk to Justice Thurgood Marshall; she was a clerk at the U.S. Court of Appeals for D.C. Circuit before that. She was a professor at Chicago before working in the Clinton administration as an assistant White House Counsel. She is currently part of the Obama administration as Solicitor General--hence, she is responsible for representing the United States before the Supreme Court.
In short, one incredibly extraordinary resume. Very very hard to beat in terms of educational and career pedigree.

Political considerations:
She is a New Yorker and there are already 3 on the Court. (Scalia, Ginsburg and Sotomayor.) She is a Jew and there are already 2 on the Court (Ginsburg and Breyer). [Hey, some of us might not care. But don't forget, there are parts of the country that equate America and Christianity. As for me, I think of Brandeis, Cardozo and Frankfurter, the 1st 3 Jewish Justices, then I think of Ruth Bader Ginsburg currently on the Court, and I'd be thrilled with as many of that caliber and character as we can possibly get on the Court. But I also recall that President Hoover had objections to Cardozo because that extraordinary jurist was a New Yorker and a Jew, and the Court already had a representative of each. Fortunately for the nation, Hoover was ultimately embarrassed by Senators of his own Republican party to disregard those apparently negative factors and go ahead and nominate Cardozo.]
Related to the previous consideration: she is not Protestant. When Stevens is gone, there will be 6 Catholics, 2 Jews, no Protestants. That will be an enormous, if generally unstated, concern. Don't kid yourself. In some parts of the country, and among some parts of the electorate, all Catholics and Jews will not sit well.
She is not a White Man, and Obama is having political difficulties with white men. Picking another Northeastern liberal woman will not gain him any support among the white men who are upset that everyone else is getting special treatment but them.
Oh, and she's been very pro gay rights. You know, the radical, un-American notion that people who are gay in America should be treated equally. Again, tough to swallow in a large part of the country and with a large part of the electorate. And then there are the rumors--I have no idea and don't care if they're true--that she herself is a lesbian.

So, lots of strong pluses on the merits side. But some real minuses politically.

Next on New York Court Watcher, 2 other women who were on the last short last and almost certainly are on this one as well. And the reports in the press say they are: Diane Wood and Leah Sears.

Supreme Court: Souter's Replacement--A Short List

A few things at the outset.

President Obama will choose a liberal. Forget anything to the contrary. Whoever Obama picks will be on the opposite side of the hot-button issues from the very politically conservative Justices Scalia and Thomas, as well as the somewhat more moderately conservative Chief Justice Roberts and Justice Alito. Yes, Obama might choose someone who is "centrist" or "moderate" in a vacuum. But in the context of the current Court, that someone will be on the liberal side of the spectrum.

Let's be serious. Obama's not going pick someone who would have written the "torture memos." He's not going to appoint someone whose views on abortion rights, gay and lesbian rights, separation of church and state, the rights of the accused, affirmative action, civil rights, international legal obligations, and other politically charged issues would be aligned with conservative Republicans. On all or most of those kinds of questions, Obama's appointee will surely share the views of liberal Democrats. Certainly "liberal" on the national political spectrum.

Additionally, Obama's pick for the Court will have very strong credentials. Remember, the President graduated from Harvard Law, he was the editor-in-chief of its law review, he married a Harvard lawyer, and he taught Constitutional Law at the University of Chicago. He's not going too far down the legal food chain to select a Justice for the high Court.

His appointee will almost certainly be someone educated at an Ivy League institution or at an equivalent such as Virginia, Chicago or Stanford. And his appointee will have a very impressive post-school resume. A prestigious judicial clerkship, work in an important federal or state law enforcement office, experience as a judge on a federal appeals court or state supreme court or as a governor or U.S. Senator, or a distinguished academic career.

Of course, there's at least one more consideration that can't be ignored. Diversity. Obama's pick will very likely fill a gender or ethnic gap on the Court. Maybe both. Only one woman currently on the Court! Embarrassing for an institution committed to equal justice under the law. The President and his wife know--and feel--that. So a woman appointee is a good bet.

No Hispanics on the Court! Never been one. (OK, some might ask about the great Benjamin Cardozo. I asked the same when Governor Cuomo appointed Carmen Ciparick to New York's high court and she was heralded as its first Hispanic judge. What about Cardozo's earlier tenure on that court? Well, fact is, Cardozo's family ultimately derived from what used to be called Iberia--the land mass now including Spain and Portugal. But his family came from the latter part. I've been told--no, lectured--that Cardozo was therefore Portuguese, not Hispanic, and that I should keep the two distinct. I have ever since.) Of course there are political reasons for Obama to choose an Hispanic. So there's a pretty fair chance for that as well. And if not this appointment, then the next one.

Two more considerations. One judicial, one political. (Okay, there's a thin line if any between them. At least in the sense of governance. But I'm speaking here about decision-making that simply happens to occur inside the Court versus that which simply happens to occur in and between the legislative and executive branches.)

As for the judicial, Obama will surely want to do more than merely replace Souter's one liberal vote for another. If he wants to change the direction of the Court, alter the somewhat conservative leanings that have characterized its jurisprudence for almost a third of a century, Obama will need to do more. He will need to appoint someone whose influence on the institution goes beyond casting votes with the liberals. He will need to appoint someone who can influence other Justices. Someone who can get votes. Someone who by strength of intellect or personality can persuade some Justices to vote contrary to their more typically conservative instincts.

As for the political, Obama has no need for a bruising confirmation battle. He has far too much on his plate. The economy, health care, two wars, etc., etc. He can't afford to expend too much political capital by nominating someone too offensive to the Republicans and perhaps, as a consequence, unpopular with too much of the public.

With that as a preface, here's my short list of who might be on Obama's short list. There's 3 judges, 2 deans, and 1 governor.

Sonia Sotomayor.
She would seem to have it all. Certainly for a President looking for a well qualified, politically appealing Supreme Court nominee. (At least on paper. See "Possible drawback" below.)
Appellate experience--she's a judge on the 2d Circuit, the federal appeals court that sits in Manhattan. First rate education--Princeton undergraduate and Yale Law. Litigation--she was a prosecutor in the Manhattan (i.e., Robert Morganthau's) district attorney's office, the nation's most prestigious and distinguished DA's office. Bi-partisan--she was appointed to the federal trial bench by Bush, Sr., and to the appeals court by Clinton. She's 1) a woman and 2) Hispanic (Puerto Rican heritage). And to top it off, she has a moving life story of rising from modest and difficult circumstances.
She is the current conventional wisdom's front runner.
BUT...
Possible drawback: serious questions have been raised about both her intellect and her personality. For starters, there are some who say she is hardly the intellectual heavyweight or infectious personality needed to counter the conservative candlepower of a Scalia, Roberts or Alito. If true, she would not be much help in bringing change to the Court's conservative leanings.
Who knows for sure? I don't. Not personally. She could actually be brilliant and charming. But she could also be quite far from either--which is what is being said.
In any event, what has been written and said, by those who might well know (see Jeffrey Rosen's "The Case Against Sotomayor"), is more than enough to give pause. Let's be blunt, if Obama has heard what Rosen has been told--and what I too have been told by people who would know--it's hard to imagine that he would choose her. Indeed, if the assessments and criticisms are at all accurate, she does not belong on the Court.

Diane Wood.
She apparently does have the candlepower. Lots of it. And she's had to use it on the 7th Circuit, the conservative federal appeals court that sits in Chicago. She has had to deal with Richard Posner and Frank Easterbrook, two of the acknowledged genuine brilliances of the federal judiciary. Her dissents on that court evince an uncowered intellect ready and willing to go toe to toe with the best and brightest--a class that would certainly seem to include herself.
She has already worked at the Supreme Court. Following her graduation from Texas Law and then a clerkship at 5th Circuit, she served as a law clerk to Justice Harry Blackmun. She then practiced at Covington & Burling, one of the nation's truly premiere law firms. She was a professor at Georgetown Law and then at Chicago (along with Obama), where she continues to teach. She served as an assistant attorney general in the Clinton administration until he appointed her to the appeals court.
Possible drawback: her dissents in some high profile cases, which are critical of her colleagues' conservative decisions, may serve as political fodder for Republican senators who want to take a stand against the President for nominating a "liberal activist" judge.

Leah Sears
The Chief Justice of Georgia. The first African-American woman to hold that position. Also the first woman and youngest person ever to sit on that court. She is very well respected by those who study state supreme courts. Indeed, she was the 2007 Brennan Lecturer at NYU Law. She's a graduate of Cornell, Emory Law and Virginia graduate law. [She is also on the board of State Constitutional Commentary, an annual issue of the Albany Law Review. Disclosure: I am the editor of that issue and I invited her onto the board because I think very highly of her.]
Possible drawback: Governor Perdue and the Georgia Republican party actively opposed Sears's reelection as Chief Justice in 2004. That may well be a preview of Republican senators' opposition to her as, you guessed it, one of those "liberal activist" judges.

[Sears is one of several exceptional woman chief justices heading state high courts around the country. In a recent post on New York Court Watcher, I identified 9 of these state chiefs who I truly believe would make a much better Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.]


Elena Kagan
Former (and first woman) dean of Harvard Law. Education--Princeton, Oxford, Harvard Law. She has already worked at the Supreme Court as a law clerk to Justice Thurgood Marshall, which followed her clerkship at the D.C. Circuit. She was a professor at Chicago before working in the Clinton administration as an assistant White House Counsel. She is currently part of the Obama administration as Solicitor General--hence, she is responsible for representing the United States before the Supreme Court.
Possible drawback: she was already blocked once for a judicial appointment when Clinton nominated her for the D.C. Circuit.


Kathleen Sullivan
Former (and first woman) dean of Stanford Law and previously a professor at Harvard. A graduate of Cornell, Oxford, and Harvard Law (where Laurence Tribe is quoted as saying that she was the "most extraordinary student" he ever had). She clerked at the D.C. Circuit, she has argued many high profile cases before appellate courts including the Supreme Court, and she is widely considered one of America's most influential lawyer's and one of its most distinguished constitutional scholars.
Possible drawback: as with any academic, especially a true scholar, she has an extensive paper trail in which she has explored difficult issues and undoubtedly expressed views that could be exploited by Republican opposition because of their unfamiliarity or unpopularity with the general public.

Jennifer Granholm
The current Governor of Michigan. Graduate of Berkeley and Harvard Law. (Both with honors. So no need to be distracted by her past as a beauty queen and her attempts at a Hollywood career.) Following law school, she clerked at the 6th Circuit. She then served as a federal prosecutor and the Michigan Attorney General before being elected and reelected (the state's first woman) Governor.
An active supporter of Obama for President, she played the role of Sarah Palin in mock debates with V.P. candidate Biden. She was a member of Obama's transition team.
Possible drawbacks: as a Governor in a state with the declining auto industry and a failing economy, she has her hands full with crisis after crisis and with decisions unpopular with her Republican opposition in the state senate--some of which might well spill over into Republican opposition in the U.S. Senate.

So there are the 3 judges, 2 deans and 1 governor that make up my short list--of Obama's possible short list.

But let's remember Mine That Bird. A 50-1 shot winning the Kentucky Derby last weekend. So, this may well be the season for long shots. Here are a few other possibilities. And their odds are probably much better than the Derby winner's were.

What about a few guys? Okay.

Mariano-Florentino (Tino) Cuellar
Harvard, Yale Law, Stanford PhD
Stanford Law professor
Presently on Obama's Domestic Policy Council
Hispanic




Charles Ogletree
Stanford, Harvard Law
Harvard Law professor (taught both Obama and Michelle)







Eric Holder
Columbia, Columbia Law
Presently the Attorney General (the first African-American)




And 2 more women.

Kim Wardlaw (sorry, the best pic I could find)
UCLA, UCLA Law
Appointed by Clinton to the 9th Circuit, the appeals court sitting in San Francisco
Hispanic (Mexican-American mother), and the first to sit on that court






Need I say?

Hillary Clinton
Wellesley, Yale Law
Appointed by Carter as Chair of the Legal Services Corporation
First Lady
U.S. Senator from New York
Presently Secretary of State




Now there are some extraordinary potential Justices among those I've listed. (Excluding, perhaps, the supposed front runner. Is that ironic or what?) I'm not sure who I'd put at the top. Excluding the men wouldn't make it easier. For me, it would be very difficult to choose between Diane Wood, Leah Sears, Elena Kagan, Kathleen Sullivan, and Hillary. Although I must admit, I think the world of Hillary and I'd personally be thrilled if she got the nod.

But then, it would be great if Diane Wood were nominated, or Leah Sears, or....