Wednesday, November 5, 2008
So what will an Obama Presidency mean for the U.S. Supreme Court? (Put aside that, as Professors Klarman, Powe, and Rosenberg have all shown, the Court is a follower, not a leader, so doesn't matter nearly as much as the public seems to believe.) Bear in mind that despite Senator Obama's decisive victory in the popular vote and the electoral college, the Democrats did not do nearly as well as they had hoped in the Senate, and will be well short, it seems, of a filibuster-proof majority of 60, and that their majority includes, in any case, some relatively conservative Southern Democrats and not-so-closeted Republicans like McCain supporter Joe Lieberman. That will operate, one expects, as a significant check on nominating the liberal counterparts to Justices Alito, Roberts, and Thomas.
Orin Kerr (George Washington) speculates that Justice Souter--who is widely rumored to dislike the job and to be eager to return to New England--will announce his resignation at the end of the current term, and be replaced by Dean Elana Kagan of Harvard Law School. (Some readers will recall that Kagan was nominated by President Clinton to the D.C. Circuit, but the nomination never came to a vote.) Kagan and Obama would have been colleagues at Chicago in the mid-1990s, and she is obviously well-qualified for the position. The loss for Harvard Law School would arguably be greater than the gain for the Supreme Court, but one can imagine there are folks in New Haven who are dearly hoping for her 'elevation.'
In the same spirit of free-wheeling speculation, here are a few surmises of my own about what's in the store for the Supreme Court. Many wonder whether the fellow (sometimes) in the office next to mine, Cass Sunstein, who has been an advisor to Obama, will be nominated for a Supreme Court vacancy. I've never discussed this with Cass, I have discussed it with other colleagues. Cass is, fairly obviously, not nearly as liberal as, say, Alito is conservative: he is, at best, a "moderate" on many issues, but he takes very liberal positions on gay marriage and animal rights, and those positions have the potential to generate substantial conservative opposition in the Senate and the media. Whether the fact that Cass is the single nicest human being in the legal academy would be enough to overcome that kind of opposition is hard to say.
More likely, it seems to me, for an early vacancy is Judge Diane Wood of the 7th Circuit who, like Kagan and Sunstein, was Obama's colleague on the Chicago faculty. (Wood--a graduate of my former school, Texas, as it happens--was the first woman to hold an endowed chair on the Chicago law faculty, before being appointed to the 7th Circuit; she is, like Judges Easterbrook and Posner, a "Senior Lecturer" at the Law School.) Wood is well-regarded by her fellow judges and lawyers, and while she has a longer 'paper trail' than, say, Chief Justice Roberts at the time of his nomination, she is so manifestly well-qualified (as long as we are pretending, as I assume we will continue to do, that 'ideology' doesn't matter) that it will be hard to oppose her nomination except on nakedly political grounds.
Beyond that, I can offer only two firm predictions: I will not be nominated to any court during the Obama Administration, nor will Steve Calabresi. At least some things are certain in life!
UPDATE: One informed observer tells me that some in the Obama camp may think Judge Wood, who was born in 1950, is "too old" for purposes of a Supreme Court slot that one could count on for decades ahead. (She is older than both Alito and Roberts.) Age would favor Kagan.