Even before Barack Obama chooses a Supreme Court nominee to replace Associate Justice John Paul Stevens, a furious debate is beginning over what should be the credentials of that individual.
One issue is whether we need religious balance, as when Stevens leaves, there will be no Protestant nominees, despite the fact that half the country is Protestant! In the past, the thought was that there should be a Jewish seat, a Catholic seat, an African American seat, and a woman’s seat. Now we have two Jews, six Catholics, one African American, two women, and even an Hispanic on the Court! So should the nominee be Protestant, as one of the leading candidates, Diane Wood, happens to be?
Then there is the issue of how liberal the nominee should be, as certainly the Supreme Court has become much more conservative over the years, and with a liberal President, one would assume he would choose a liberal nominee. If this is the major factor, then Diane Wood comes across as the most liberal nominee, more than Elena Kagan or Merrick Garland, the other two most mentioned!
Then, there is the issue of whether the nominee should be from outside the judiciary, with Elena Kagan being the one of the top three in speculation who has been a professor, Harvard Law School Dean, and now Solicitor General of the United States, the government’s lawyer before the Supreme Court!
Also, however, there are some who think what is needed is an elected political official, which has put Secretary of State Hillary Clinton, Governor Jennifer Granholm of Michigan, Senator Amy Klobuchar of Minnesota, and Senator Claire McCaskill of Missouri into the speculation! Notice all of these elected officials past or present are women!
So that brings up the idea that with two women on the Court, maybe it should be a man who is selected, but only Judge Merrick Garland is mentioned very much, and he would be regarded as more moderate than Kagan or Wood, at least by reputation!
So what it comes down to is that President Obama must decide what matters most to him. He has made it clear that he wants a person who can make coalitions with others on the Court, as Justice Stevens often did with Sandra Day O’Connor and Anthony Kennedy. That would seem to make Diane Wood or Elena Kagan the best choices! He also wants someone who would make decisions, taking into account the struggles of everyday ordinary Americans. Again, the indications are that Kagan or Wood would be the best choices in that regard!
My prediction is that he will select Elena Kagan, the Solicitor General, a Jewish woman who is liberal but not as controversial as Diane Wood, and who has already been voted upon by the Senate Judiciary Committee for her nomination to be Solicitor General, and who is a person who has not served as a judge, bringing some outside experience from her position now, and her years as a professor and Harvard Law School Dean.
Kagan’s nomination would cause fewer problems in the Senate, and put a woman not yet 50 on the Court, allowing for the possibility of a long term on the bench. She would be an excellent choice, and that is more important than having an elected official, or a Protestant or even a man! 🙂