Why you should care
It matters who wears these robes, because these nine people exert huge power over our lives, from how we pay for medicines to how we vote to who can marry.
We’ll begin as those in the legal profession might — with a big caveat. There’s no guarantee that any Supreme Court justice will vacate the bench before President Obama ends his term, and unless he’s looking to pack the court, he can’t nominate a justice unless a justice leaves. Ergo, the ensuing discussion calls for speculation.
Now for the good stuff: Should a seat open up on court, who might Obama nominate for it?
The answer depends partly on the composition of the Senate, which can confirm nominees or not. We’ll learn more in the mid-term elections, but it looks unlikely that the Republicans would gain a nominee-blocking majority.
Court watchers say justices retire when they’re ready to retire, not when they deem it politically propitious…
The more important factor, according to legal nerds, is which justice departs: a man, a woman, a right-winger, left-winger, racial minority, centrist? If a female justice left, Obama would almost certainly appoint a woman to replace her, they say. He might even appoint a woman to replace a man.
Ideological balance matters, too. Justices have come and gone since 2006, when Samuel Alito replaced Sandra Day O’Connor, but the court since then has had, basically, four liberal justices, four conservative justices, and one Anthony Kennedy, who wavers between conservativism and idiosyncrasy.
Were a liberal justice to depart, Obama would have leeway to replace him or her with a flaming leftist. Were a conservative justice to go, Obama would do better to choose someone more moderate, or at least less likely to piss off the right, conservatives say.
This is why the Greek chorus — er, Cour-Us — that watches the nation’s third branch can seem so morbid, obsessed with the prospect of retirement or death. The Cour-Us these days homes in on Justice Ruth Bader Ginsburg. The liberal-leaning justice, who turns 81 on March 15, is the oldest on the bench and as slight as a sparrow besides. And so, the thinking goes: Ginsburg will the first to retire, and she’ll want to retire at a time she’d be appointed by a left-leaning replacement.
Say what? We might like to think that way, but the justices don’t, necessarily. Court watchers say justices retire when they’re ready to retire, not when they deem it politically propitious: “I am literally not aware of a single justice who did that,” says Larry Kramer, former Stanford Law School dean and a friend of OZY. “It’s one of those things people say because it sounds plausible, without ever thinking about it.”
And — leaving aside the fact that gainsaying someone’s health is bad form — Ginsburg may well want to stay on. She’s twice beaten pancreatic cancer, written a share of scathing dissents, and insists she’s not retiring anytime soon. We think Justice Ginsburg would outlast a gaggle of 20-somethings at 1L happy hour.
When they let Ruthie alone, the prognosticating Cour-Us singles out the other justices approaching 80. They are Justices Kennedy and Antonin Scalia. We have doubts about whether they’d retire, either. As swinger in chief, Kennedy has a lot of power that would be hard to throw off. Just in the last judicial season, Kennedy’s vote determined the constitutionality of gay-marriage bans and the future of the Voting Rights Act.
Could Scalia be the first to go? “Everyone knows he’s not particularly happy on the court. He may just decide he wants to retire and spend time with his grandchildren — screw the politics of it,” says Curt Levey, head of the conservative Committee for Justice. Though we have a hard time imagining that — where else could the man’s harangues about originalism have any effect? — we take Levey’s overall point: ”To assume that a center-right justice won’t retire in the next three years because conservatives don’t want them to — that’s somewhat naïve.”
Longtime court watcher Jeffrey Toobin put his chips on the table last year, saying that if S.S. were confirmed to the D.C. Circuit, he’d be a Supreme Court Justice before Obama left the presidency. Srinivasan sailed through the process with nary a glint of Republican opposition. “He’s probably about as good as we’re going to get,” says Levey.
As she swore Srinivasan into the D.C. Circuit, Sandra Day O’Connor said he was “always fair, faultless and fabulous” when he clerked for her. After his clerkship, he worked for the Solicitor General, and the first time he appeared before the Supreme Court for oral, argument, the late Chief Justice William Rehnquist leaned over to ask O’Connor, sotto voce, how to pronounce the lawyer’s name.
But times have changed, and many observers believe Obama could well nominate the first Asian-American justice. ”I think he is mindful of history in his Supreme Court picks,” says David Lat, founder and managing editor of the blog Above the Law. Lat notes that Obama’s previous Supreme Court picks were both women, which bumped up the representation of the fairer sex on the Court from one to three, and that he named the first Latina justice, Sonia Sotomayor. Now, says Lat, “I think the president would love to name the first Asian-American justice, and there’s no shortage of qualified people on that front.”
We know Obama thinks she’s hot — and she is! — but there’s more. She is well liked, has had a career in government service, and she’s fierce. Even those who aren’t particularly keen on the 49-year-old Californian say she wouldn’t draw much Republican opposition. The reason? She’s prosecuted alleged criminals instead of defending them.
She’s a triple threat when it comes to diversity: a woman, half Indian-American, half African-American. And she’d be the first non-Ivy League justice in ages (Harris went to Howard University, and then to U.C. Hastings for law school). As California Attorney General, she follows in the steps of a major Supreme Court Justice, Earl Warren.
The big question about Harris is whether she’d accept the nomination. Like Minnesota Sen. Amy Klobuchar, another name that pops up in future-of-the-court discussions, Harris may harbor gubernatorial aspirations — or greater.
Observers often look to a nominee’s clerkship history to find hints of his or her ideological persuasion. They’ll have a tough time divining Watford’s. He clerked for Justice Ginsburg, which signals “leftist,” but before that he clerked for Ninth Circuit Judge Alex Kozinski, and though Kozinski is nominally conservative, he’s more like a wild card. Having sailed through his Ninth Circuit confirmation, Watford would be unlikely to encounter strident Republican opposition.
LESS LIKELY NOMINEES
Poor Judge Liu. From 2010 to 2011, Republicans condemned the 43-year-old’s Ninth Circuit nomination to purgatory — apparently, they didn’t like Liu’s associations with the left-leaning American Constitution Society, or his criticism of Justice Alito. Eventually he withdrew, and now sits on the California Supreme Court. The threat of Republican opposition makes his nomination unlikely —unless Obama wanted to spend a lot of political capital on it.
She’s a brilliant civil rights lawyer, legal scholar and openly gay besides. Now on leave from Stanford, where she directs the law school’s Supreme Court clinic, Karlan is spending some time in Obama’s Department of Justice. Beloved, overly qualified, but the conventional wisdom is that she’s too outspokenly liberal to be confirmed.
Clinton (Bill or Hill)
Kramer, the former Stanford Dean, would have loved to see someone from outside the legal technocracy serve on the court — someone with real governing experience, who saw the effects of laws on citizens. For a long time, he says, he would have wanted Obama to nominate someone like Hillary Clinton. Hillary, of course, is now an unlikely nominee, given her presumptive presidential aspirations.
Which made us think: What about Bill? “That would never occur to them,” says Kramer. Or, he says, to Bill. “He’d never go in for that kind of cloistered life.”
Growing enamored of the idea, we suggested an appointment to the Supreme Court might keep Bill out of trouble.
“Oh no,” says Kramer, laughing. “Nothing could do that.”