The Republican (Not So) Short List
Following up on my two posts (here and here) about potential Democratic nominees, here is my list of the thirty leading candidates for a Republican President (and here it is as a sortable Excel file). As with the Democratic appointments, I had the benefit of considerable research help, particularly from Akin summer associate Stanley Woodward. I also got advice from several outside sources who are much more plugged in to Republican legal circles. I'm very grateful.
I tried to assemble a diverse group, both demographically and in experience. There are six African Americans, five Hispanics, and one Arab American; eleven are women. Most are judges, but one is a sitting Governor; three are sitting or former Senators; and one is a State Attorney General. (I would have included Charlie Crist as another Governor, but I can't imagine Republicans want to risk losing that office to a Democrat.)
I believe that a Republican President, like a Democrat, will feel pressure to name a woman to the Supreme Court and will see significant electoral value in naming the first Hispanic.
I expect that a Republican President would have the opportunity to name only one Justice in a first Term. Justice Stevens will be 92 at the time of the 2012 election "“ which would make him the oldest Justice in history (Holmes retired at age 90) "“ so that statistically the odds are that he would leave the Court by then. The appointment of Stevens' successor would obviously give a Republican President "“ particularly a solid conservative "“ a remarkable opportunity to shape the Court.
Justices Scalia and Kennedy will be (respectively) 76 and 75 at the time of that election. Both no doubt would prefer to have their successors named by a Republican. But absent a very strong indication that the President's reelection chances are doomed in 2012, I think both are likely to stay (as did William Rehnquist in 2004). Justice Scalia, in particular, will have (in this scenario) a solid working majority for the first time in his career.
A second nomination is instead most likely to be for a replacement for Justice Souter. (I keep predicting this, and no one believes me.) But I think he is unlikely to retire in the event the nominee would probably be quite conservative "“ in particular, if a conservative President were backed by a Republican Senate. But Souter might well retire if the President were Giuliani and the Senate remained under the control of Democrats.
As with the Democratic list, I tried to work from a basic age band: most of the candidates were born between 1952 and 1960. Only three pre-date 1952. But there are ten born between 1960 and 1963 (plus Paul Clement, who was born in ’66), reflecting my view that any appointments will come later in the Term. Still younger candidates who would be seriously considered in a second Republican Presidential term "“ such as Texas Solicitor General Ted Cruz and Judge Brett Kavanaugh, among many other leading young conservatives "“ haven't been included on the ground that they are too young.
Other candidates with impeccable credentials "“ such as Gibson Dunn partner Doug Cox "“ could emerge if they had a short time on the appellate bench.
The Republican list faces two very significant variables that are not in play for Democrats: the widely varying ideologies of the Presidential candidates and the realistic prospect that a Senate controlled by the other party will reject a nominee on ideological grounds. If there were instead a Republican Senate evaluating the nominees of a conservative President, the stock of candidates like Miguel Estrada and Michael Luttig would rise considerably.
As things stand, my short-list for a first nomination is: Ninth Circuit Judge Consuelo Callahan, Florida State Supreme Court Justice Raoul Cantero, Sentencing Commission Chairman Ricardo Hinojosa, Texas Supreme Court Justice David Medina, and Fifth Circuit Judge Priscilla Owen. I predict Callahan, which likely would disappoint conservatives who recognize the great importance of the Stevens seat, but which nonetheless reflects my sense of the likely political realities of the circumstances (i.e., who could get confirmed).
For a second nomination (should there be one), I would add as potential nominees Paul Clement, John Cornyn, Judge Michael McConnell, and Judge William Pryor. I predict Clement. (He would be very young, but for the record Joseph Story was 32 when he was appointed.)