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Follow-Up to the Democratic (Not So) Short List

My post on potential Democratic Supreme Court nominees generated a variety of email responses, as well as interesting posts and reader commentary. See for example the responses and comments at Above the Law, Althouse, The New York Times Opinionator (Times Select req’d), Michelle Malkin, Free Republic, The Moderate Voice, Colorado Confidential, and Opinio Juris.

The thing I found most interesting was that – though the post dealt with Democratic nominees – the commentary was almost uniformly from the conservative blogosphere. There was nothing from sites on the left like Daily Kos, Talkingpointsmemo, and Balkinization. My point isn’t that the post was particularly insightful, but instead that interest in the subject of judicial nominees seems focused on the ideological right. No doubt there is something of an echo-chamber effect. The kind notes by Orin on Volokh and my law partner Paul Mirengoff on Powerline were likely noticed by the authors of other conservative sites. But the one-sided response to the post reinforces the commonly held view that conservatives recognize the importance of judicial nominations much more than do liberals.

With respect to the substantive reactions to the lists of potential nominees, I discounted a lot of the reactions but found the following comments most interesting and/or credible.

1. Three women received very favorable commentary as potential nominees, in the following order: (i) Diane Wood (an overwhelming response); (ii) Sonia Sotomayor; and (iii) Elena Kagan. No doubt, the great respect Dean Kagan gained for her conservative appointments at Harvard played a role here. She also has the benefit of being substantially younger than the other two.

2. The consensus view was that Judge Rawlinson is too conservative to be appointed by a Democratic President.

3. My prediction of an appointment of Kim Wardlaw met repeated skepticism on the ground that her initial appointment was rooted in politics rather than her qualifications. But I found it notable that these comments were not directed at criticizing her performance as a sitting judge. Several comments noted a point that was central to my prediction (particularly vis-à-vis Judge Sotomayor): Judge Wardlaw’s relationship to the Clintons.

4. There was a repeated view (not surprising from conservative sites, but not entirely meritless) that the left lacks great “heavy hitting” intellects comparable to, for example, Posner, Kozinski, etc. One name that came up repeatedly as a counterexample is Pam Karlan. Another was Cass Sunstein.

5. Among the male nominees, Merrick Garland received the most respect, by far.

6. There remains overwhelming skepticism that Justice Souter will retire. I stand by this prediction.

Given those reactions, I am revising my short list of potential appointments for the first seat to: Kagan, Sears, Sotomayor, Wardlaw, and Wood. The additional names for later seats are: Granholm, Garland, Jordan (assuming an immediate elevation to the Eleventh Circuit), Patrick, and Salazar.

As for the particular predictions (which truly are wildly speculative), here is my thinking. A Democrat will want to correct the gender imbalance on the Court immediately. There is no reason to defer a Hispanic appointment with two highly qualified Hispanic women available. So the first seat will go to Sotomayor (to whom I now lean) or Wardlaw.

The second seat will go to a recognized intellectual heavyweight. That means Garland, Kagan, Sullivan, or Wood. Kagan gets the nod from me because she is the youngest (by five to ten years) and helps the gender balance of the Court.

For the third seat, I believe a Democratic President will prefer to expand the Court’s racial diversity by appointing an African American. My full list has twelve candidates. (In my original post, I predicted Deval Patrick because he is known to the Clintons and has political experience.) Because this appointment would come at least two years into a Democratic Administration, I’ll pick Teresa Roseborough, who could be appointed in the meantime to the D.C. Circuit, Second Circuit (where she works), or Eleventh Circuit (where she lives). (Walter Dellinger advocated appointing her to the Eleventh Circuit towards the end of the Clinton Administration.)

Interestingly, this would mean three consecutive appointments of women.