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Brian Leiter
University of Chicago Law School

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Saturday, April 17, 2010

You Heard It Here First: Janet Napolitano Will be the Next Supreme Court Justice

I was talking with a colleague elsewhere at a conference the other day, and she had a very persuasive explanation of why former Arizona Governor Napolitano, who is now head of Homeland Security, will be Obama's choice.  Bear in mind, as my colleague David Strauss has said (in various news articles over the last year), that Obama does not have a court-centered agenda:  he isn't looking for a liberal maverick, and he doesn't want to expend his political capital on Supreme Court battles.  As the choice of Sotomayor shows, he likes to get some political benefit out of an appointment, and he certainly doesn't want a Justice who will create problems for his real agendas.  So why Napolitano?  In roughly ascending order of importance:

1.  She's a she.

2.  She's a Protestant, replacing the last remaining Protestant on the court.

3.  She's not yet another Yale/Harvard, "inside the Beltway" nominee, who has done nothing but be a judge or DC lawyer or law professor.  She has political experience, as well as prosecutorial experience.

4.  She's not an East Coast insider either--she's a "real" Westerner.  Geographic diversity!

5.  Like Kagan, but unlike Wood (and Garland), she could easily serve 25 or more years on the court given her current age.

6.  She has the strong support of the two Republican Senators from Arizona, which will help neutralize Republican opposition.

7.  She was confirmed without opposition to her current post--and that wasn't long ago.

8.  She's a solid Democrat, but not obviously a liberal--there's little ammunition for the crazy right.  She even put people to death as a prosectur in Arizona!

9.  She's politically skilled, and, esp. with the support of the Arizona Senators, could likely win over other Republicans.

10.   She doesn't have the baggage of Kagan or Wood.  In the case of Wood, a long judicial record creates lots of fodder for the right-wing kooks.  In the case of Kagan, she has limited experience (she is no John Roberts), a somewhat odd academic career (tenured at Chicago, but then unable to get hired back to the faculty after leaving the Clinton Administration; a visiting stint at Harvard led to an appointment, which was then followed by a successful Deanship, but she's had a relatively limited scholarly output); and even her nomination as Solicitor General produced more than 30 'no' votes in the Senate.

Judge Wood is the best choice on the legal and moral merits in my view.  But I'm persuaded that it will be Napolitano.  The only knock against her is silly (a sound-bite comment that came off badly after the last attempted terrorist attack). 

UPDATE:  Here's a good statement of the case for Judge Wood on the merits of her work as a judge and scholar.

http://leiterlawschool.typepad.com/leiter/2010/04/you-heard-it-here-first-janet-napolitano-will-be-the-next-supreme-court-justice.html

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