Saturday, May 2, 2009

A new lineup for the Supremes

U.S. Supreme Court Associate Justice David Souter announced this week that he was ready for a change he could believe in, mainly a change in his own life. The 19-year veteran of the high court confirmed on Friday to the White House of his intention to step down at the end of the current term.

Souter never much liked Washington; he got mugged there some years ago, and he once referred to his own lofty position as “the world’s best job in the world’s worst city.” Presumably when the court’s term ends in June, Souter will gas up the Volkswagen sedan he drives and decamp for the New Hampshire farmhouse that’s been his longtime home-improvement project and sanctuary.

The Supremes have been due for a change in the lineup for some time now, even with the investiture of John Roberts as Chief Justice back in 2005. The conventional wisdom may have thought that either Justice Ruth Bader Ginsburg, 76 and ailing, or Justice John Paul Stevens, 89 and, well, 89, would have been the first to change the court's current lineup.

But Souter’s low-key, maverick, New Hampshirite independence got the better of everyone. The question of his replacement looms big. The speculation fax machines are working overtime in the nation’s capital right now.

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You’ll be hearing the phrase “short list” for just forever, as court watchers cogitate on the nominees that President Obama may be considering. The media’s already compiled its own frontrunners' list; it includes the names of U.S. Appeals Court Judge Sonia Sotomayor, U.S. Appeals Court Judge Diane Wood, and the new Solicitor General, Diane Kagan.

And as of Friday there’s been a new name dropped: The Atlanta Journal-Constitution reported that Leah Ward Sears, Georgia Supreme Court Chief Justice, is also apparently being vetted.

What’s right with this picture? They’re all women; if Obama were to pick from this group, it would signal a fresh validation of women to the highest ranks of the judiciary, and a continuation of the social progress that saw Ginsburg and Sandra Day O’Connor become Justices in two of the preceding decades.

And other benefits. The nomination of Sotomayor, whom many early handicappers at the betting window have decided is the odds-on favorite, would buttress the administration’s already solid bona fides with the Latino community. That fact is peripheral to Sotomayor’s judicial qualifications, of course, but it’s a legitimate political calculus just the same. Esquire says she's a lock for this and other reasons.

Other names have surfaced in the past. Cass Sunstein, the brilliant Chicago legal scholar, law professor and prolific author who’s known President Obama for years, from time at the University of Chicago. Laurence Tribe, a highly-regarded author and professor of constitutional law at Harvard who once had Obama as a student. That theoretical short list will expand in the weeks to come.

But if past behavior is prologue, we can count on President Obama being as cautious and deliberate in this nomination process as he’s been (or tried to be) in the past. Hell, you see how long it took ‘em to decide on a family dog — you think he’s gonna rush on this?

It’s a certainty, of course, that out of respect for the decorum of the court, the president will keep his counsel utterly until closer to the end of the Supreme Court’s current term, in late June. But looking over a wealth of candidates, each endowed with a wealth of qualifications, we all may be surprised — President Obama included — at how difficult this decision may be.

The only short list that matters is the one that probably doesn’t exist yet.
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Image credits: Justice Souter: SCOTUS (Public domain). Judge Sonia Sotomayor: Still from video of panel at Duke University Law School, 2005. Judge Diane Wood: Linda Rux, republished under GNU Free Documentation License, v1.2 or later. Cass Sunstein: Matthew W. Hutchins, Harvard Law Record, republished under Creative Commons Attribution 3.0 Unported LIcense.

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