A favorite topic of mine has always been potential nominations to the Court, both as to who might be picked and whether the nomination will or won’t succeed.  But trying to prognosticate a few months ahead of a retirement is too simple; it is time to try several years out.  This is the first in a series of posts about what would likely happen to the Court’s composition in the next Administration.

In the modern era, incumbent Presidents tend to be re-elected.  George W. Bush, Bill Clinton, and Ronald Reagan were, though George H.W. Bush and Jimmy Carter were not.  The economy is also ticking up.  So my first post will work from the assumption that President Obama will get a second term.  (Given the depth of that analysis, you can tell that this is a blog about the Supreme Court, not about electoral politics.)

The odds are good that Justice Ginsburg will retire in the third year of a second Obama term.  That is only a presumption, and I doubt that the Justice herself has made concrete plans.  The re-election itself is highly uncertain, and much can change in one’s thinking over the next three years.

Nonetheless, the Justice has sent signals that correspond with a likely retirement at that time.  When asked about retirement, she has noted the parallels between her service and that of Justice Brandeis (the first Jewish Justice), who similarly was appointed at age sixty.  Brandeis retired at age eighty-two.  Justice Ginsburg will turn eighty-two in March 2015, the third year of a second Obama term.

Waiting beyond that year also carries risks for Justice Ginsburg’s legacy.  Justices tend to retire strategically to permit ideologically sympathetic presidents to name their successors.  Assuming President Obama’s re-election, early to mid-2015 is the last practical opportunity to retire while ensuring that he can appoint her successor.  2016 is an election year, and there is a substantial risk – given how broken confirmation politics have become – that Senate Republicans would attempt to block any confirmation that year (as Democrats would do if the tables were reversed).  The prospect of a Democratic victory in 2016 is of course very uncertain, so if she did not retire in 2015 the Justice would face the prospect of a Republican President naming her successor unless she stayed on the Court until she was nearly ninety.

I do not think that there are any other factors that will push Justice Ginsburg towards retirement.  She has twice been diagnosed with cancer.  But the more important point is that she has beaten it both times, and she shows no ill effects.  Certainly the advice from some quarters that she (and Justice Breyer) retire has no consequence; it was also misguided.  This will instead be for her a strategic decision about presidential and Senate politics.  So if nothing changes – and so much can change between now and then – I would anticipate an announcement from Justice Ginsburg on April 10, 2015 that she will retire upon the appointment of her successor.

I won’t discuss in detail, but should mention, the question of whether Justice Breyer would resign in a second Obama term for essentially the same reasons.  Again, no one knows.  But I think it is less likely.  Justice Breyer is five years younger than Justice Ginsburg.  If he were to leave the Court, it would likely need to be 2014 at the age of seventy-five (to avoid two retirements in 2015).  I think Justice Breyer probably thinks he has seven to ten more years of service before retiring.

Assuming that President Obama is re-elected and that Justice Ginsburg does retire at some point in the next Administration, who will be the next nominee?  One thing is certain:  it will be a woman.  It is inconceivable that a Democratic administration with any reasonable choice would cause the gender balance of the Supreme Court to revert to seven men and two women.  Relatedly, appointing three women in a row to the Court is excellent politics.

President Obama will also have a strong desire to pick an ethnically or racially diverse nominee.  It would be disappointing for the nation’s first African-American President to make two white appointments, leaving the Court with seven white members.  A more diverse Court is a better legacy.  Given that the President already appointed the first Latina Justice, most likely is an African-American or Asian-American nominee.  That said, I think race and ethnicity are plus factors, rather than an imperative like gender.

But that is going to be a problem.  The Administration’s appointments have been very diverse.  But they have … also … been … very … slow.  The glacial pace of nominations, combined with Republican obstructionism (now de rigueur for any opposing party), means that the bench of available diverse nominees is very short.

That is particularly true because of the age constraints on a nomination.  Realistically, the nominee needs to be between forty-five and fifty-five years old at the time of confirmation in 2015 (so, currently forty-two to fifty-two).  It is possible to go slightly younger or older, but not by a lot.  Younger raises the significant criticism that the nominee is too inexperienced; older limits the length of the Justice’s tenure.  The average age at appointment of the current Justices was fifty-four.  But the recent appointments have tended younger – closer to fifty.  So the most qualified female nominee, Diane Wood, will be too old at the age of sixty-four; and Leondra Kruger will be too young at thirty-nine.  Three other federal appellate judges (two of whom are African-American) who are possibilities are nonetheless likely to be out of contention on the basis of their age: Bernice B. Donald (60, CA6); Beverly Martin (56, CA11); and O. Rogeriee Thompson (60, CA1).

In sum, here are the criteria I think the President will be using.  The person must of course be highly qualified intellectually.  Beyond that, the candidate must be (a) female, (b) a Democrat, (c) reasonably well known to the President’s advisors, (d) between the age of forty-two and fifty-two, (e) a lawyer (so no Susan Rice), (f) have substantial interest and experience in the kinds of issues that the Supreme Court decides (so no Samantha Power), and (g) have sufficient credentials.  Those credentials would be (i) a federal appellate judgeship, (ii) federal or statewide electoral office, or (iii) a senior federal executive position.  There also is a substantial preference that the nominee be African American or Asian American.

The most striking thing about the list of qualifications (a) to (g) is the absence of an (h):  strong ideology.  Certainly, any nominee of President Obama is going to be on the left.  But the most liberal potential nominees aren’t even a serious part of the discussion.  Pam Karlan is just one of a dozen examples of prominent female lawyers who are very liberal but were never appointed to judgeships or significant jobs in the Administration, and therefore were not positioned for later elevation.  (The same is true for very liberal men; the nomination of Goodwin Liu is something of an illusion, given that the Administration did not invest the significant resources that would have been required to confirm him.)  That is in stark contrast to recent Republican administrations, which have worked much harder to position leading young, strong conservative lawyers in important positions.

Note that I have also left off the list of qualifying credentials service as a district judge.  Although the Justices consider many issues that involve practical litigation questions, trial judges simply do not get a lot of love in Supreme Court nominations.  (Justice Sotomayor was a district judge, but her principal qualification was her service on the Second Circuit.)  That will be the single greatest limitation on the President’s ability to appoint an African-American nominee.  Limited to African-American women in the relevant age range, I believe the seven possibilities are Denise Jefferson Casper (43, D. Mass.); J. Michelle Childs (44, D.S.C.); Sharon Johnson Coleman (52, N.D. Ill.); Vanessa Gilmore (54, S.D. Tex.); Benita Y. Pearson (48, N.D. Ohio); Laura Taylor Swain (53, S.D.N.Y.); and Linda T. Walker (51, nominated to N.D. Ga).  Two other, still-younger possibilities who are not African American are Lucy Haeran Koh (42, N.D. Cal.) and Alison Nathan (39, S.D.N.Y.).

The President could also reach into the state court systems.  I have not had the time to review the African-American female members of all the state appellate courts.  I limited myself to the highest courts of California, New York, Texas, and Florida.  I also know about Cheri Beasley (N.C. Ct. App.); Yvette McGee Brown (Ohio S. Ct.); and Patricia Timmons-Goodson (N.C. S. Ct.).  I am sure I am missing others.  But state appellate judges will generally fly under the radar of the President’s staff, as the process tends to revolve around known commodities who have been involved in the federal system.

Also, credentials can change, so new candidates can obviously emerge over the next three years.  Appointments in the first year of a second Obama term in particular could provide additional potential nominees.  That would be true if any of the district judges mentioned above were elevated to appellate seats. Also, in my opinion, four possible academics could be considered seriously after an intervening judicial appointment (though, as discussed, some are implausible given that the Administration has not shown much interest in making significant appointments from the far left): Heather Gerken (42), Yale Law School; Pamela Karlan (54), Stanford Law School; Carol Steiker (51), Harvard Law School; and Kathleen Sullivan (56), Stanford Law School.

But taking all of the criteria into account, as things stand now, there is only one candidate who otherwise fits the bill of the ideal nominee:

Kamala Harris (47), Attorney General of California

The remaining eight serious candidates are all imperfect.  They fit into two categories.  Five potential white nominees have substantial political experience or work in the White House.  That is a significant gap in the resumes of all the current Justices, who frequently confront political issues with little context:

Jennifer Granholm (53), Berkeley Law School and former Governor and Attorney General of Michigan (and Commander of the Swedish Royal Order of the Polar Star)

Amy Klobuchar (51), U.S. Senator and former county attorney for Hennepin County, Minnesota

Lisa Madigan (45), Attorney General of Illinois and former state senator

Janet Napolitano (54), Secretary of Homeland Security

Kathryn Ruemmler (40), White House Counsel

Three other candidates – two of whom are diverse – could be nominated from appellate judgeships (two assuming they are confirmed in the next year or so):

Caitlin Halligan (45, pending nomination to the D.C. Circuit)

Mary Murguia (51, CA9)

Jacqueline Nguyen (46, C.D. Cal., with a pending nomination to the Ninth Circuit)

This list makes obvious the costs of the slow process of judicial appointments in the Obama Administration.  There is one African-American candidate, one Asian-American, and one Hispanic, as compared with six whites.

As mentioned, in the lists of names, only one truly stands out as checking every box:  Kamala Harris.  She is the recently elected (2010) Attorney General of California.  Previously, she was twice elected as the District Attorney for San Francisco (2004-2010); the chief of the unit heading civil code matters in the San Francisco City Attorney’s Office (2000-2004); the head of the career-criminal unit in the San Francisco D.A.’s Office (1998-2000); and Deputy District Attorney for Alameda County (1990-1998).  Her mother (a breast cancer specialist) is from India and raised her as a single mother; her father (an economics professor at Stanford) is Jamaican-American.  She graduated from Howard University as an undergraduate and went to U.C. Hastings for law school. Coincidentally, Harris is profiled in yesterday’s New York Times.

I do not know a ton about Harris personally, but everyone knowledgeable with whom I’ve spoken has been very impressed.  Having won statewide elected office in California, it is unlikely that she has significant skeletons in her closet.  In 2015, she will be fifty years old.  She is regarded as a liberal and death penalty opponent, but her background is almost entirely in law enforcement, and she has written and spoken in great detail about criminal justice policy.  She opposed referenda that would legalize medical marijuana and driver’s licenses for illegal immigrants; she prosecuted parents of truant children.  Like the President, she is biracial.  She has also long been well known to the Administration, having been the first California elected official to endorse Barack Obama’s candidacy.  (Her brother-in-law is Assistant Attorney General Tony West.)

But the timing is likely to conspire against Harris.  The odds are that, at the time of a hypothetical Ginsburg retirement in the spring of 2015, Harris will be in the very early days of her second term as Attorney General, after a hard fought re-election battle.  (It seems unlikely that Jerry Brown, who has been running for office since birth, will pass up a chance at re-election and allow Harris to run for Governor in 2014.)  In that event, I cannot see her walking away, particularly with the prospect of the Governor’s mansion four years away.  The only way the timing fits is if Harris instead loses in 2014, either seeking re-election or seeking the governorship if Brown does not run again.

Things do not really look different if Justice Ginsburg were instead to retire in 2014.  The California primaries are in early June of that year.  So by the spring of 2014, Harris will likely be well along the way to positioning herself for re-election, with no other candidate waiting in the wings.  And the President is unlikely to name a nominee before July in any event.  Dropping out of the race at that point would leave the Democratic Party in California with no serious candidate for Attorney General.  That office is too important.

In the end, a Supreme Court appointment is an enormous temptation for any person.  The historic prospect of serving as the first African-American woman on the Court is extraordinary.  But people do turn down the offer.  And I have the feeling that the timing and electoral ambition will combine to cause Harris to pass.

If not Harris, then who?  At this stage, there is no good answer to that question.  With no ideal candidates available unless the playing field changes, this choice could come down to the fate of Caitlin Halligan’s confirmation.  If the filibuster of Halligan’s nomination is lifted after an Obama re-election, then she would certainly be in the top tier and maybe the most likely nominee.  If Halligan is instead forced to withdraw, Kathy Ruemmler would immediately become a leading candidate for that appellate slot, and for subsequent elevation to the Supreme Court.  (The current state of nominations and confirmation to the D.C. Circuit is absurd; the filibuster of Halligan, in particular, is in my opinion a new low for a horribly broken process.)  Ruemmler is a top-five possibility even without judicial experience, with her age (and the fact that the nomination of Harriet Miers from the same position failed) as the principal obstacle.

But I think that the President is likely to look in the direction of nominees with extensive political experience.  As noted, that is a serious gap in the resumes of the current members of the Court.  Amy Klobuchar may be the best candidate, but that raises the prospect of Democrats losing a critical Senate seat when every vote in that body can be critical.  (Minnesota has a Democratic governor now, but that could change after the next election in 2014.)  And in early 2015, Klobuchar will probably be seriously considering a run for the Democratic nomination for President in 2016.  So I am betting that she (like Harris) will ultimately pass if asked.

Jennifer Granholm was a successful Governor of Michigan (and former Attorney General) who was term-limited from seeking re-election.  She now teaches at Berkeley and has a show on Current TV.  She certainly deserves serious consideration.  She will, however, be 56 in 2015, at the edge of the ideal age range.

The candidate with the best chance might well be Lisa Madigan, whom the President knows from their time together in the Illinois legislature.  Statewide elections in Illinois happen in 2014.  Pat Quinn will certainly run for re-election as Governor of Illinois.  There is an Illinois U.S. Senate seat up in 2014, but the incumbent Democrat Dick Durbin (who crushed his opponent in 2008) will presumably run again.  So Madigan likely faces the prospect of running for and winning a fourth term as state attorney general, with no obvious path to higher office.  That is a position she could easily leave if tapped for the Supreme Court.  So she is a serious possibility.

 

Posted in Analysis, Featured

Recommended Citation: Tom Goldstein, The Court in a second Obama term, SCOTUSblog (Feb. 14, 2012, 2:04 PM), http://www.scotusblog.com/2012/02/the-court-in-a-second-obama-term/