- The Washington Times - Friday, April 16, 2010

ANALYSIS/OPINION:

Handicapping President Obama’s next likely Supreme Court pick would challenge the talents of Jimmy the Greek. There was a time in the run-up to nomination of a Supreme Court Justice that we mulled over a candidate’s writings and speeches to discern liberal or conservative predispositions toward issues that come before the Court - abortion, prayer in school or same-sex marriage. But ever since Sonia Sotomayor suggested that “a wise Latina woman with the richness of her experience would … reach a better conclusion than a white male who hasn’t had that life,” background and experience have emerged as the relevant criteria in handicapping a justice.

The court is now basically a monolithic institution. Most legal scholars agree that on a collegial court, diversity is a plus and on this court, almost any choice would add a measure of diversity. All nine of the justices have had prior judicial experience in various federal courts of appeal. All but two were on appellate courts in the Northeast corridor of the nation. Retiring Justice John Paul Stevens is the only Protestant. Two of the justices are Jews, and the other six are Roman Catholic. Of course, there are two women. Five of the justices attended Harvard Law School; three others went to Yale. Only Justice Stevens was a non-Ivy Leaguer. He attended Northwestern, where he earned the highest grade-point average in the history of the law school.

Only one, Justice Sotomayor, ever served as a federal trial judge. Not one justice served in a state legislature, and not a single justice was the head of a federal agency or department, unless you count Justice Antonin Scalia, who was head of the Justice Department’s Office of Legal Counsel. Just three, including Justice Stevens, served as Supreme Court law clerks, although two others served as law clerks to judges of the lower federal courts.

Law-review experience presents a common thread. All but two of the justices wrote for the law review in law school, and one of them, Justice Ruth Bader Ginsburg, served on both the Harvard and Columbia law reviews. She transferred from Harvard to Columbia to be with her husband.

So the question of the hour is: Whom will Mr. Obama pick as Justice Stevens’ successor? They probably are making book in Chicago on what will be his political calculus. Will he do some old-fashioned political profiling based on the present composition of the court? Will he be impelled to pick another woman, as Justice Ginsburg may be the next justice to retire and it may be more difficult to name a confirmable successor after the November elections than it is now?

Will the appointee be someone the president knows from Harvard or Chicago or the campaign trail? Presidents often appoint political cronies. Franklin D. Roosevelt appointed William O. Douglas, with whom he played cards in the White House. Lyndon Johnson appointed Abe Fortas, who resigned in scandal. Will he appoint a Protestant on the theory that Justice Stevens held the Protestant seat? Will he not appoint a Jew because two Jewish seats are enough? Can he get away with appointing another Catholic? Will it be someone from his own home state (and Justice Stevens’) of Illinois? Will he choose a sitting appeals court judge? There certainly are enough of those. Will he go for a governor (Earl Warren was a governor), a legislator (Hugo Black was a senator), a state court judge like Oliver Wendell Holmes, Benjamin Nathan Cardozo or William J. Brennan (Sandra Day O’Connor was both a legislator and a state court judge) or an academic like Felix Frankfurter? Nothing in the law even requires him to appoint a lawyer, although legal training might be desirable.

Is a degree from Harvard, Mr. Obama’s alma mater (after all, Harvard produced Holmes and Louis Brandeis) or Yale (it gave us Potter Stewart and “Whizzer” White) a good thing or does it just mean more of the same Ivy League cabal? How does the president wade his way through so many political and practical considerations? On his reported shortlist of eight are six women.

I would say may the best man win, but the odds-on favorite would appear to be a woman. If you think it unlikely that he will appoint a third woman, fret not. There is precedent the other way. Canada has a nine-justice supreme court, and four of the nine, including the chief, are women.

My long-shot pick from the shortlist is the brainy Gov. Jennifer M. Granholm of Michigan. She went to Harvard Law School, clerked on the 6th Circuit, served as a federal prosecutor and, being a politician, would lend the most diversity to the Court of those in the running.

A safer bet would be Dean Martha Minow of the Harvard Law School. Ms. Minow is an outstanding lawyer, a human rights advocate, a former law clerk to the late Supreme Court icon Justice Thurgood Marshall, and was an editor of the Yale Law Journal.

No one knows what shades of liberal or conservative ideology reside in those on the shortlist. But it appears that since Justice Sotomayor’s confirmation process, experience and background count for more than ideology. Presidents often float a list of possible nominees in Supreme Court sweepstakes in order to mollify constituencies or throw a bone to interest groups. There may be dark horses in the race with names not yet bruited about.

It’s an awesome decision for any president, riddled with partisan political concerns about what might come out of the confirmation process. Whatever the decision, this choice will leave an indelible impression on the composition of the court long transcending Mr. Obama’s time in office.

James D. Zirin is a lawyer in New York.

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