Who I Want On the Court

Normally, this is the time on Sprockets when I would go into a weirdly comprehensive listing of the potential candidates and my thoughts on them, but I’ll spare y’all and just link to and excerpt this Campus Progress piece I wrote earlier in the year:

Some believe that Obama’s cautious political style will lead him to select a moderate liberal from the appellate Court benches, and will cause him to pass up candidates capable of more systemic change. One of his recent appointments, thankfully, suggests a different direction.

Elena Kagan, whom Obama appointed to the position of solicitor general, is the outgoing dean of Harvard Law School and has shown a strong commitment to social justice. She has a particularly outstanding record on speech issues and would make an outstanding Supreme Court justice. Winning confirmation for her may not be easy: When President Bill Clinton nominated her to a seat on the D.C. Circuit Court of Appeals in 1999, Sen. Orrin Hatch refused to even hold a hearing on her nomination. But by selecting her as solicitor general, which has been a stepping stone to the Supreme Court for past justices like Marshall and Robert Jackson, Obama may be signaling an intention to prepare her for a seat when one opens up.

Beyond Kagan, a number of other academics, including Yale Law School Dean Harold Hongju Koh and former Stanford Law Dean Kathleen Sullivan have impressive liberal credentials and would make excellent justices. Koh and Sullivan in particular would be historic appointments. Koh would be the first Asian-American justice and Sullivan would be the first openly gay one. Alternately, Obama could appoint a progressive politician like Deval Patrick or Jennifer Granholm. Historically, former elected officials like Earl Warren and Hugo Black have been tremendously effective as justices, due to their ability to count votes and lobby for their opinions. Patrick in particular would be a great choice. He has previous experience as assistant attorney general for civil rights and he has expressed strong support for Massachusetts’ state supreme court decision that legalized same-sex marriage.

Just a few notes: Kagan’s relatively easy confirmation as Solicitor General and the prolonged ordeal Koh has gone through to become Legal Adviser to the State Department seem to make the former much more attractive and the latter all but an impossibility. And picking Patrick could spare him an ugly reelection battle against Tim Cahill. So who knows. The conventional wisdom was it’ll be Sotomayor, but I think Kagan and Patrick would both win confirmation pretty easily, and would be far superior choices.

One last thing: I am totally biased in this regard, and I know this sounds like an excuse to name-drop, but having taken a class with him I can say with the utmost certainty that this guy would be a truly great justice. Glenn Greenwald will flip his shit, but it’ll be more than worth it.

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