Breaking News

Wednesday round-up

As some details of the administration’s short list leaked out and Senators reacted, headlines about the impending Supreme Court vacancy (and possible nominees) have frothed furiously.  They include:

  • Sidney Thomas, Janet Napolitano, Jennifer Granholm and Leah Ward Sears are under consideration. (National Law Journal, Above the Law)
  • So is Martha Minow. (Boston Globe)
  • Deval Patrick, Ken Salazar, and Elizabeth Warren are not on the short list. Patrick said over the weekend that he is not interested in the job. (L.A. Times)
  • Senators Klobuchar (D-MN) and Whitehouse (D-RI) took themselves out of the running, as well. (Minneapolis Star Tribune, Huffington Post, The Hill)
  • Hillary Clinton is not being considered. (The L.A. Times’s Opinion L.A. blog)
  • President Obama will meet with Senate leaders of both parties next Wednesday to discuss the nomination. (BLT, SCOTUSblog, CBS News, WSJ Washington Wire, Ninth Justice, the Washington Post’s 44 blog)
  • Many Senate Democrats want a nominee whose experience derives from “outside the usual background of Ivy League law schools and federal court careers.” (Washington Post)
  • Republicans would prefer not to fight over social issues in the midst of mid-term campaigns. (L.A. Times)
  • Senator Graham (R-SC) likes Elena Kagan but will not commit to voting for her. (Legal Times, WSJ Washington Wire)
  • Senator Kyl (R-AZ) warns President Obama not to use a Citizens United litmus test in selecting a replacement for Justice Stevens. (Ninth Justice)
  • Senator Leahy (D-VT) guarantees that any of the candidates on the President’s short list will be confirmed. Senator Hatch (R-UT) confirms that Leahy’s prediction is “probably true.” (Reuters via the Washington Post)
  • “Democrats hope to turn the upcoming Supreme Court confirmation hearings into a referendum of sorts on controversial recent decisions by the Roberts court—portraying the conservative majority as a judicial Goliath trampling the rights of average Americans.” (Politico)
  • In a speech at Kansas University, Justice O’Connor said she “wouldn’t mind seeing the president nominate someone without experience as a judge, or if he nominated another woman.” (Lawrence Journal-World)
  • Third-party advocacy groups are beginning to organize for the nomination and confirmation process. (ABC News’s The Note blog)

Many constituencies—women’s groups, environmentalists, atheists—are weighing in on the impending vacancy and nomination.  Penny Nance, the CEO of Concerned Women for America, argues at that “[w]omen want a Justice who will uphold the Constitution, the right to life, and will preserve the family as a foundational cornerstone of our society.”  At ACSblog, Glenn Sugameli contends that Stevens’s replacement should be a strong proponent of environmental protections.  Jonathan Hiskes of Grist asks “How green are Obama’s potential Supreme Court picks?” and evaluates the environmental records of the three leading candidates.  Meanwhile, in a Washington Post blog post, David Waters asks whether it is “[t]ime for an atheist on the Supreme Court.”  Bill Barnhart, writing for Speaking of Stevens, thinks “we should celebrate the fact that the Court is one institution of government where religious affiliation barely has been noticed, until now.”

The nature of a Justice’s role in the federal government is also being discussed in connection with the vacancy.  In an op-ed for the New York Times, Geoffrey Stone explains that “constitutional law is not a mechanical exercise of just ‘applying the law’” and argues that a Justice’s sense of empathy enhances his or her judging.  Andrew Cohen, writing for Vanity Fair’s VF Daily blog, notes the declining number of “practical, patrician jurists who once dominated the federal trial bench”; they have been replaced, he suggests, by “younger, more dogmatic federal judges.”  At Balkinization, Jack Balkin draws an analogy to President Lincoln’s nomination of Samuel Chase to predict that “President Obama will nominate someone who is likely to sustain the President’s policies while he is in office, first, on the issues he cares about most at the time and, secondarily, the issues necessary to keep his political coalition together.”

Moving away from retirement and nomination news, in a post for SCOTUSblog, Orin Kerr hypothesizes that the Court’s shrinking Fourth Amendment docket “might be the result of defensive denials among the more pro-defendant Justices.”  Kerr analyzes the reply brief in one such case—City of Ontario v. Quon, which will be argued Monday—for the Volokh Conspiracy.


  • The WSJ Law Blog and the BLT cover Senator Specter’s (D-PA) most recent request for proceedings at the Court to be televised.
  • NPR has an interview with Jeff Shesol, author of Supreme Power: Franklin Roosevelt vs. the Supreme Court, who will be joining SCOTUSblog for a live Q&A tomorrow afternoon.
  • Sam Stein of the Huffington Post examines the Harvard-Yale dominance of the current Supreme Court and investigates the phenomenon’s historical precedent.
  • has video of the National Journal’s Stuart Taylor discussing the Stevens vacancy and possible nominees.  At the Ninth Justice blog, Taylor inspects Justice Stevens’s record on the Court to make the case that Stevens “evolved leftward.”
  • Michael Doyle of McClatchy Newspapers offers a playbook of “people and narratives to keep an eye on” as the nomination and confirmation process proceeds.