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The Democratic (Not So) Short List

Tom Goldstein prepared this post with extensive research and input from summer associate Jonathan Eisenman and assistance from Adam Chandler, as well as very helpful thoughts and advice from others on potential nominees.

With the country’s attention for the past few weeks focused to some extent on the Supreme Court, I thought it would be worthwhile to look into the future.

In this earlier post, I wrote about the prospect that the next President will quickly have the opportunities to nominate several Justices. In this post, I look at who a Democratic President might name (for the anxious, our full list is here). I’ll have a parallel Republican post soon.

Here is how I made the choices, with the tremendous assistance noted above.

First, I drew an ideological line. Nominees are obviously likely to be of the same party as the President. On the other hand, I tried to set realistic ideological boundaries. Some brilliant and accomplished lawyers were left out because their previous writings identified them as too liberal or controversial to be reasonably confirmable.

Second, I identified a relevant body of previous experience. I assume that the next nominees will come from the federal bench, a state supreme court, Congress, a Governorship, a previous senior Justice Department position, or the Deanship of a major law school. Roughly 500 Democratic candidates fit that bill. (I sought to include in the final list multiple candidates from each category of experience.)

I did not include any of the many individuals (e.g., Teresa Roseborough) who could be considered serious candidates after even brief seasoning on the federal bench but who don’t yet have a sufficient body of experience. I focused instead on potential nominees for openings in the very immediate wake of the 2008 elections.

Third, I gave priority to demographics. I believe that the next President will feel an extraordinary pressure (and for some potential Presidents, a genuine desire) to name another woman to the Court, likely in a first appointment. In addition, I think that the next nominee will be non-white, and most likely Hispanic. In terms of gender, the final list includes 12 women. In terms of race, 12 candidates are African American, 6 are Hispanic, and 1 is Asian American.

Finally, I employed an age cutoff. The appointments of the Chief Justice, Justice Alito, and Justice Thomas indicate that Republicans are serious about naming members who will have the opportunity to serve for many decades. I expect that Republicans will continue in that approach and that Democrats will seek to emulate it. So, I applied a birth date cutoff of 1952. Any nominee born earlier than that would be fifty-seven or older by the time of a post-election appointment in 2009. The cutoff was not absolute, however; a few nominees made the list notwithstanding that they were a year or two older.

The age cutoff presents a particularly difficult dilemma for a Democratic President. In 2009, it will have been more than eight years since a Democratic administration had the opportunity to groom candidates by placing them on the bench or in high-level positions in the Department of Justice. If Al Gore had won the Presidency and had the opportunity to make Supreme Court appointments, he could have turned to, for example, Judges Jose Cabranes, Judith Rogers, and David Tatel, or potentially (depending on the Congress) Larry Tribe; now, each of those candidates is probably actuarially disqualified.

As a consequence, a Democrat looking to name someone between the age of 50 and 52 in 2009 (such that the nominee was born roughly between 1957 and 1959) will have an extraordinarily difficult time identifying a significant stable of qualified potential candidates. My list therefore more broadly spans the period from 1950 to 1961, with 24 of the 30 candidates born between 1952 and 1959.

I did not attempt to study many other important factors. For example, beyond reputation, I do not know much about these candidates in terms of their suitability for the job with respect to intellect and judicial philosophy. That would require more time than I had available.

In addition, I could not predict the putative President’s ideology, priorities, relationship with the Senate, willingness to invest political capital to confirm controversial nominees, other political considerations (such as whether the appointment of a sitting Senator could cause the seat to switch to another party), and personal relationships with the potential nominees. I did assume, however, on the basis of the seats in play, that the Senate will retain a Democratic majority so there will not be exceptional pressure on a Democratic President to appoint a fairly conservative nominee.

And of course I assumed that the candidates would want the job. That is not always the case. Multiple candidates turned down Bill Clinton. On my list, Barack Obama may be otherwise occupied (and face constitutional questions about the power to appoint himself). Deval Patrick may prefer to run for a second term as Governor. More generally, though being named a Justice is obviously an extraordinary and profound honor, a nominee on the left is in all likelihood signing up for ten years of dissent on many of the most important issues of Court confronts. As discussed in my earlier post, the more liberal members are basically in a holding action, given that there is no realistic prospect that any of the more conservative Justices will retire any time soon.

Based on these criteria, I winnowed my initial list to roughly thirty candidates. I have included the document (in both pdf and Excel, which can be sorted), with links to their individual biographies.

I also developed two lists of leading candidates. The first reflects my view that an initial appointment will go to a woman, probably a minority. The second reflects other candidates who would come into play in later nominations. This list could change as well if certain candidates without judicial or Executive Branch experience (e.g., Kathleen Sullivan) were to spend some time on the bench or in the Administration (she is a very strong candidate for Solicitor General, for example) early in the Presidential Term.

The First Seat:

Hon. Johnnie Rawlinson, U.S. Court of Appeals for the Ninth Circuit

Chief Justice Leah Ward Sears, Georgia Supreme Court

Hon. Sonia Sotomayor, U.S. Court of Appeals for the Second Circuit

Hon. Kim McLane Wardlaw, U.S. Court of Appeals for the Ninth Circuit

Additional Names for a Second and Third Seat:

Gov. Jennifer Granholm, Governor and former State Attorney General (term limited as of 2010)

Dean Elena Kagan, Harvard Law School

Hon. Merrick Garland, U.S. Court of Appeals for the District of Columbia

Gov. Deval Patrick, Governor and former Asst. Attorney General (first term ends in 2010)

Sen. Ken Salazar, U.S. Senator from Colorado

My ultimate predictions? Kim Wardlaw (2009, for Souter), Deval Patrick (2010, for Stevens), and Elena Kagan (2011, for Ginsburg).

Of course, the lists are fantastically speculative. But it was an enjoyable exercise. I encourage readers to name other prospective nominees in the comments.