Federal Courts and Nominations

Speculation starts on retirements, nominations in Obama’s second term

By Lawrence Hurley


No sooner had President Obama won re-election Tuesday than speculation started to mount in legal circles as to when Justice Ruth Bader Ginsburg will retire from her position on the Supreme Court.


Although the 79-year-old justice has not indicated what her plans are, it has long been assumed that the President Clinton appointee would consider stepping down in an Obama second term, thereby allowing a Democratic president to appoint her successor.


“Based on her own statements, I would expect Justice Ginsburg will retire toward the end of the second Obama term,” said Doug Kendall, president of the progressive-leaning Constitutional Accountability Center.


The Ginsburg speculation indicates how closely any potential personnel changes on the high court are tracked.


If Obama, who has already appointed Justices Sonia Sotomayor and Elena Kagan to the high court, does replace Ginsburg, it is unlikely to lead to a major shift in the ideological balance of the court. The same would apply if the second-oldest member of the liberal wing, 74-year-old Stephen Breyer, were to retire.


But experts always say any change in the lineup of a nine-strong court can potentially affect the outcome of certain cases, including the handful of environmental issues the court hears each term.


“The Supreme Court is narrowly and deeply divided on constitutional and other challenges to basic environmental laws,” said Glenn Sugameli, a lawyer at Defenders of Wildlife who tracks judicial nominations.


So far this term, the justices have decided to hear two Clean Water Act cases and two property rights cases that have environmental implications.


Potential candidates for an Obama nomination might include Jacqueline Nguyen and Mary Murguia, both judges on the 9th U.S. Circuit Court of Appeals, or even California Attorney General Kamala Harris (D). Other names mentioned include Judge Diane Wood of the 7th U.S. Circuit Court of Appeals and Sri Srinivasan, currently the deputy solicitor general and a nominee for the D.C. Circuit.


Many think Obama is most likely to appoint a woman to replace Ginsburg, as otherwise there would be only two women justices left. However, the fact that he already appointed two women might give him cover to appoint a man, especially if the nominee were African-American or Asian-American. Paul Watford, an African-American recently appointed to the 9th Circuit, could fit the bill, some court watchers say.


“In terms of general speculation of who’s out there … there isn’t that deep of a bench,” Kendall said. Murguia, who is Hispanic, and Watford “fit the general criteria” of what Obama might be looking for in terms of background and experience, he added.


Other factors could play into a decision, including what some observers have claimed is a need to correct a lack of diversity on the court in terms of educational and professional backgrounds. Currently, all the justices attended either Yale Law School or Harvard Law School, and Kagan is the only one who didn’t previously serve as a judge before being appointed to the court.


Sean Donahue, an attorney who regularly represents the Environmental Defense Fund — and a former Supreme Court clerk — said he would like to see a nominee with “an interest and knowledge” of natural resources law and American Indian law issues. Both come up relatively regularly at the high court.


A major shift in the ideological balance of the court would happen only were one of the conservative members of the court to retire during the next four years.


That would appear unlikely barring health problems, even though two of them are in their 70s. Justice Anthony Kennedy, the most frequent swing vote on the closely divided court, and conservative icon Antonin Scalia are both 76. They are expected to prefer a Republican to appoint their successors.


If Obama did somehow manage to replace Scalia, that would “flip the court” from conservative to liberal, as Pamela Harris, a Georgetown Law Center professor who recently returned to academia after a stint in the Justice Department’s Office of Legal Policy, put it in a recent interview.


Were Obama to replace Kennedy, the shift would be more subtle, but would likely be slightly leftward, experts predict.


Obama will also have a greater opportunity in his second term to shape the federal judiciary as a whole by appointing more appeals court and district court judges.


Liberals have complained that the Obama administration did not put enough emphasis on judicial nominations during the first term. As a result, there are currently 82 unfilled vacancies.


John Podesta, chairman of the Center for American Progress, called today for the White House to put more effort into the process in the coming years, especially in terms of backing nominees during a Senate confirmation process made more difficult by what he called “an unprecedented level of obstruction” from Republicans.


“Frankly, the White House bears some of the blame” for the high number of vacancies, Podesta said.


There are 19 nominees awaiting a vote in the Senate. Democrats hope they will be confirmed during the lame-duck session so the White House won’t need to renominate them next year.

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