Federal Courts and Nominations

An Alternative Short List for the Next Supreme Court Justice


Is New York Law School’s Annette Gordon-Reed, the Pulitzer Prize-winning law professor/historian, on President Obama’s Supreme Court ‘short list’? Or, Alabama lawyer Bryan Stevenson, a MacArthur Foundation ‘genius’ award recipient and tireless advocate on behalf of indigent defendants and prisoners? How about veteran consumer rights champion Alan Morrison and University of Notre Dame Law School Dean Patricia O’Hara?

Probably not. But they appear on the short lists of more than a dozen constitutional law and Supreme Court scholars asked by Legal affiliate The National Law Journal to step into Obama’s shoes to pick a nominee to succeed retiring Justice David Souter. These scholars, who vary ideologically and geographically, most often recommended four women who are reportedly on Obama’s short list, giving the most nods to Pamela Karlan, a leading constitutional law scholar, voting rights authority and founding director of the Stanford Law School’s Supreme Court Litigation Clinic.

‘She’s young, smart and very witty,’ said Michael Dorf of Cornell Law School, echoing comments by Richard Primus of the University of Michigan Law School and others. ‘She’s pretty clearly to the left of anyone on the current court, but is not a throwback to iconic liberals like Earl Warren, William Brennan and Thurgood Marshall. She would be a liberal for the Obama era, not someone fighting a rear-guard action attempting to preserve the remnant of the Warren Court’s jurisprudence.’

Close on Karlan’s heels with an equal number of recommendations were: constitutional law scholar Kathleen Sullivan, the first female dean of Stanford Law School and now head of the appellate practice at Quinn Emanuel Urquhart Oliver & Hedges; Judge Diane Wood of the 7th U.S. Circuit Court of Appeals; and Solicitor General and former Harvard Law School Dean Elena Kagan. Barely given a nod by those surveyed was Judge Sonia Sotomayor of the 2nd Circuit, strongly supported by Hispanic groups, and Homeland Security Secretary Janet Napolitano.

With the exception of Wood, the other top choices would be considered ‘outside the box’ nominees. The ‘box,’ as Senate Judiciary Chairman Patrick Leahy, D-Vt., has said, is the ‘judicial monastery,’ sitting judges in general, federal appellate judges in particular. Federal appellate courts have been the primary source of high court nominees now for more than half a century.


Although these scholars differed on their ‘favorites’ for the nomination, they all agreed that the president should select a woman or another nominee who would bring racial, ethnic or background diversity to the court. ‘I do think it is scandalous to have a Supreme Court with only one woman on it,’ said separation-ofpowers scholar Peter Shane of Ohio State University Michael E. Moritz College of Law, and ‘unfortunate there’s only one person of color on the court.’

If a woman or diversity candidate is not named, New York Law School’s Nadine Strossen, former head of the American Civil Liberties Union, said, ‘It would create a negative implication — there are no extraordinary, well-qualified women or underrepresented minorities available.’

High court litigator Jay Sekulow of Pat Robertson’s American Center for Law and Justice said the president should nominate the most qualified individual with whom he is comfortable. ‘Having said that, there is a tremendously deep pool of wellqualified diverse candidates and qualified white men.’

Declining to recommend anyone to Obama, he did note that private-practice lawyers could be a source of qualified candidates, he said, such as Paul Smith, the openly gay chairman of Chicago-based Jenner & Block’s appellate practice who has ‘significant Supreme Court experience and is extremely well-respected by right, left and center.’

At opposite ends of the ideological spectrum, Strossen and high court scholar Douglas Kmiec of Pepperdine University School of Law surprisingly place the same person at the top of an Obama list: Kathleen Sullivan, who, like Karlan or Smith, would be the first openly gay nominee. ‘A forceful advocate, a great intellect, a wonderful scholar, someone deeply involved in practice and litigating, she has the experience of being a dean, which is not just ivory tower experience, and brings diversity to the court, including ideological diversity,’ Strossen said.

Kmiec said, ‘She is somebody who could go toe-to-toe with the best minds on the bench, who would at the same time break lots of stereotypes about sexual orientation and the like and would do that without hitting people over the head. She has the capacity, like William Brennan, to engage people in discussion.’


But they and the other scholars also have their off-the-grid favorites.

Ohio State’s Shane: human rights and equality scholar Martha Minow of Harvard Law and Bryan Stevenson, founding director of the nonprofit Equal Justice Initiative. ‘I don’t think there is anyone alive who would better combine more sheer analytic capacity with deeper thinking about the impact of a particular decision on justice to the actual parties in a case than Martha,’ Shane said. ‘Very few lawyers have done as much for social justice as Bryan has; he is also smart as they come.’

Pepperdine’s Kmiec: Notre Dame’s O’Hara: ‘One of the brightest legal talents in the land, she has demonstrated tremendous administrative ability; a defender of the mainstream, but liberal in the kind of things the president would seek; a strong sense of social justice, and a securities law scholar.’

New York Law’s Strossen: New York Law’s Gordon-Reed, a self-taught historian and law professor, and Yale’s Stephen Carter, ‘a genuine intellectual,’ who, like Gordon-Reed, ‘confronts each issue anew based on a deep reservoir of knowledge.’

And, she asked, why not someone whose understanding of and commitment to the law have been tested in the most difficult circumstances, such as FBI whistleblower and lawyer Coleen Rowley and former U.S. Navy Lt. Cmdr. Charles Swift, who represented Guantanamo detainee Salim Hamdan?

Duke Law School’s H. Jefferson Powell: Teresa Wynn Roseborough, senior chief litigation counsel at MetLife Inc. and former deputy assistant attorney general in the U.S. Justice Department’s Office of Legal Counsel, a ‘brilliant mind, and from her life experience and from her innate temperament she has the qualities of empathy and understanding of the world that President Obama rightly thinks important.’

Douglas Kendall, head of the Constitutional Accountability Center: John Payton, director, counsel and president of the NAACP Legal Defense and Educational Fund, ‘one of the nation’s finest Supreme Court advocates’ who ‘would add a desperately needed voice to the court, particularly in terms of advocating for an accurate interpretation of the post-Civil War amendments.’

Duke’s Paul Carrington: Alan Morrison, co-founder of Public Citizen and professor, George Washington University Law School, ‘someone who has served the public in a variety of ways, is very smart and unlikely to be overwhelmed by the other justices.’


All of their choices fit the chief qualification sought by Lee Epstein of Northwestern University School of Law — nonjudges. ‘I think it’s time to break that norm,’ said Epstein, suggesting that Michigan Gov. Jennifer Granholm, who, because she is a politician, would be an even more nontraditional choice than Karlan and Kagan, whom she also likes. ‘I think Diane Wood is great, but I would reserve her.’

But there is ‘good reason to pick justices who have some judicial experience, as prior judicial conduct is the best measure of judicial temperament,’ said Jonathan Adler of Case Western Reserve University School of Law.

Georgia Chief Justice Leah Ward Sears, Adler and others said, would be ‘an intriguing and potentially quite compelling pick.’ But if he were advising Obama, adopting the president’s criteria, the obvious pick is Wood.

‘She has a wide range of experience, including substantial government service; she has the intellectual heft to go toe-totoe with the court’s conservatives; she is reliably liberal on the issues the administration and its base are likely to be most focused on (including abortion); she has experience that would seem to satisfy the president’s concern for empathy, including being a working mother while on the faculty at the University of Chicago when they did not have maternity leave.’

Randall Bezanson of the University of Iowa College of Law also sees Wood as the top choice, calling her an ‘extraordinary judge.’ Karlan, he added, is his ‘outside the box’ pick. And, Geoffrey Stone of the University of Chicago Law School also named Wood, as well as Kagan and Harvard Law’s Cass Sunstein, ‘partly because I’m familiar with them and all fit the description of what I assume Obama would be looking for.’

Richard Lazarus of Georgetown University Law Center has another 7th Circuit judge in mind: Ann Williams, appointed to the district court by Ronald Reagan and promoted by Bill Clinton.

‘I like that — crossing bridges — the way I like Sonia Sotomayor (who is also a Bush and Clinton appointee),’ he said. ‘It’s Obama-like.’

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