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Goldstein's Nomination Speculation

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Over at SCOTUSblog, Tom Goldstein has this long post on Supreme Court nomination prospects. "John Paul Stevens very likely will retire.  Ruth Bader Ginsburg definitely will not."

So who gets the Stevens seat? Tom emphasizes the political calculations, which I believe is correct for the Obama/Emanuel White House. Appointing a judicial activist is not as high on this President's agenda as boosting his political capital at a time when the yellow gas tank light is on. As Tom puts it,

Unfortunately for progressives who want the Administration to invest its political capital in a nomination, this summer is likely to be a profoundly difficult time in political terms.  It is hard to overstate the Administration's view of the significance of the loss of the sixtieth Democratic Senate seat.  The point isn't actually that there is a realistic chance that a Supreme Court nominee would be filibustered....

Instead, the effect of the vote is to reduce the Administration's political capital and maneuvering room at a time when both are in short supply.
What is "unfortunate[] for progressives" might be very fortunate for the people's right to govern themselves through the democratic process and not be ruled by philosopher kings with the power to propose and ratify their own constitutional amendments. Or it might not.
Tom concludes that CA7 Judge Diane Wood has no chance. He also has this interesting comment about the previous nomination.

Whereas progressives may look back on the Sotomayor hearings as a tremendous lost opportunity, because Democrats failed to articulate a vision of progressive judging, the White House is likely to take exactly the opposite view of the process's success.  The Administration's priority last summer, and once again this summer, is not to have a debate about visions of judging.  Rather, it defines success in a confirmation hearing as confirming a great nominee.  The admittedly early indications are that Justice Sotomayor in fact is an extremely intelligent and very hard-working judge who shares the same values and perspectives when it comes to judging as does President Obama.  Her tenure on the bench likely will be no less of a success for this Administration than Chief Justice Roberts and Justice Alito were for President Bush.
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If the Constitution allowed Justice Sotomayor to fill two seats, the White House would nominate her again.  Seriously, if you are the Obama Administration, what do you think has gone better for you in the past year than the Sotomayor nomination?  And why would you try to change a thing about your previous strategy?

So who gets the nod? Some previously mentioned candidates are no longer mentioned. "'Associate Justice Elliot Spitzer' doesn't trip off the tongue the same way it once did," Tom says. I previously gagged on the thought myself, but the point is still valid and funny. Tom bets on Kagan to win. His second choice is CADC Judge Merrick Garland, who is handicapped by Y-chromosome disorder.

Janet Napolitano, previously mentioned where it matters most, has probably lost a shot at the high bench over one gaffe. Such is politics. That's too bad. Personally, I share the President's view that her experience would bring something to the Court it is lacking now.

Tom correctly, IMHO, dismisses Bill, Hillary, and autoappointment speculation as "bizzaro-world lunacy."

So how good a Justice would Elena Kagan make? We actually don't have enough information to know. Her academic track record did not really involve the key question of judicial activism. It is unlikely that anything useful will come out of the confirmation process. Nothing has in many years.

When Harriet Miers was nominated, I read every article she had published and still had no clue where she stood on the Great Question of enforcing the social contract according to its original understanding, reserving to the people the exclusive power to change it, versus the view "that [the Supreme] Court should amend the Constitution by interpretation to keep it abreast of modern ideas...." (McGautha v. California, 402 U.S. 183 (1971) (Black, J., concurring).) I don't know much more about what Elena Kagan thinks of this.

One thing we do know. All government officers have a tendency to drift toward an expansive view of their own turf. After appointment, many Justices drift in the direction of judicial activism, but few drift in the direction of judicial restraint. (Justice Black was arguably one of the few. The quote above is difficult to reconcile with the fact he concurred in Miranda, for example.) If an unknown quantity is appointed, drift toward constitutionalizing whatever opinions that person holds on matters of policy is likely.

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Just for the record, Justice Black was off the Court (and had died) by the time Furman was decided. The quotation actually originates in his concurring opinion in McGautha (and is then quoted in Justice Blackmun's dissent in Furman).

[Thanks, I've corrected the post. -- KS]

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