Justice Kagan: Frontrunner for the Supreme Court?

By Al Giordano

If we believe First Read, the choice for the next Supreme Court justice is down to six:

According to a couple of sources in the know, there appears to be a working short list of about six names for President Obama’s Supreme Court pick. The co-frontrunners (in no particular order): Diane Wood of the 7th Circuit, Solicitor General Elena Kagan, Sonia Sotomayor of the 2nd Circuit, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and Merrick Garland of the DC Circuit Court of Appeals.

Based on my very informal, intuitive and outside-the-box methods of prognostication, right now I'd say that Kagan, among those six, has the inside track, and here's why.

Boston Phoenix colleague David S. Bernstein makes an interesting point: that the rivalry between Harvard and Yale law schools has been a dominant paradigm on The Court, and may also be at play as a Harvard Law grad president makes his pick:

Five of the current Supreme Court Justices hold JDs from Harvard Law, and with one of them -- David Souter -- now stepping down, thank goodness we have a Harvard Law man in the White House to ensure that the majority is retained. Right?

At least, that's what they've got to be thinking across the river in Cambridge these days.

…for the past 30 years, Supreme Court Justices come mostly out of Harvard (7) and Yale (2), with Stanford (2), Northwestern (1), and Columbia (1) considered acceptable.

Three people have been nominated during those 30 years with law degrees from other schools; none were confirmed.

By process of elimination, if the First Read “short list” is accurate, and if this Harvard v. Yale thing is at all in play (probably), the edge goes to the three Harvard Law grads in contention: Elena Kagan (49), Jennifer Granholm (50) or Merrick Garland (58).

There’s also a gender issue here, but one that few speak aloud, based on a different yardstick than that of affirmative action considerations. Supreme Court Justices serve for life, or until they resign. Given that there is a highly polarized ideological battle between the two major political parties over the direction of the court, one that has lasted for generations already, younger candidates have generally won the day over gray eminences in recent years.

It is therefore completely legitimate - indeed, it would be political malpractice to ignore this factor - to consider that women live, on average, five years longer than men. In the US, the average life expectancy for women is 80.79 while for men it’s 75.15. Odds are that Kagan and Granholm will be around for another 31 years, while Merrick can expect, by comparison, a paltry 17. Sorry guys. That alone makes them more desirable for posts that require long distance running into the twilight years.

Now, of course, my anti-Ivy League tendencies would give me a certain satisfaction if the President went outside of the box and picked, say, Janet Napolitano, 51, graduate of a public (University of Virginia) law school. And I’d be thrilled if the President crashed the techo de vidrio (Latin, the language of law, is closer to Spanish anyway) and nominated Sonia Sotomayor, 54, even if she did graduate from Yale.

On the other hand, the attorney that I’ve gone to again and again over the past 32 years to keep me out of prison, Tom Lesser, is a Harvard Law grad, and he's the best barrister in the world. So I wouldn’t be in any position to complain if the President looks to the same talent pool to hire a lawyer for the country.

Since this process of elimination leaves two Harvard gals - Kagan and Granholm - and only one was born in the US (Granholm, governor of Michigan, is Canadian-born, which would surely become a screeching point from the tea-bagger and birther crowds were she to be nominated), the tea leaves point to Kagan as the safest pick. The President may also feel a special affinity for Solicitor General Kagan, since, like him, she edited the Harvard Law Review while studying there.

As an autodidact with no degree in anything but hard knocks, I stipulate, Your Honor, that the objective conditions do not yet exist for one of our own to rise to become a member of the Supremes, or of any Court. (We shall overcome some day!) But that a Kagan nomination would cause heart palpitations to the extreme right because she once used the word socialism in the title of her 1981 undergrad thesis, would be delicious gravy indeed.

Update: Rick Hasen of Election Law Blog makes his case that the most likely pick is, actually, Justice Diane Wood. It's a Chicago thing, he says. That's not a bad lens from which to view it either.



Another thing that should endear her to Al

According to her Wikipedia entry, Elena Kagan began her career by clerking for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit.

If the list of six is accurate, Kagan's my pick.

My criteria involve legal minds that the president is familiar with, not so much because of their ideology but rather because of their personalities and persuasiveness.  Kagan and Diane Wood strike me as the closest to Obama's comfort zone on those merits.  Wood has the advantage of having spent a considerable amount of time parrying with Easterbrook and Posner on the Circuit Court.  A Justice Wood would not provide the kind of unwelcome surprise to Obama that Justice Souter provided to GHWB.

On the other hand, Kagan is not only a decade younger than Wood, but has also earned praise from Harvard's faculty across the ideological spectrum from her tenure as Dean.  That, combined with her recent confirmation as Solicitor General, could make a right-wing assault against her candidacy a particularly futile exercise.  More importantly, her ability to engage those to her right could make her an unusually influential justice who may swing a few 5-4 votes over the next three decades.

I would not at all be shocked to see Cass Sunnstein nominated next time around for similar reasons, but Kagan seems like the best bet to replace Souter.


Something to consider with Granholm

I think your analysis is generally excellent, but I would like to point out that Michigan politics could give a boost to Gov. Granholm's chances of being selected for the position.

Granholm is term-limited and her Lt. Governor, John Cherry, is the likely Democratic nominee for Governor and selecting her would allow Cherry to be elevated to the governor's mansion and would give him the power of incumbency while running against the Republicans. My own suspicion is that this was a consideration (though maybe not the deciding factor) when Obama originally chose my governor Bill Richardson for commerce secretary.

Even with her foreign-born status, I wouldn't be surprised if Obama ultimately chose Granholm.



The key I find in your comment is this:

"More importantly, her ability to engage those to her right could make her an unusually influential justice who may swing a few 5-4 votes over the next three decades."

I don't know where her idealogy stands, but assuming it's on the left, this is the second most imporant factor to me.  That ability is incredibly useful on the SC - and something we desperately need.


In response to this part of your comment:

"...I would like to point out that Michigan politics could give a boost to Gov. Granholm's chances of being selected for the position."

While I don't doubt replacement outcomes for every candidate are being looked at - I've yet to see a situation that really showed Pres. Obama as thinking along those lines in terms of a decision making process.  Just looking at his Cabinet and you see a flurry of people who's departure had adverse effects to some degree on Dems in their state, both in Governorships and Senate seats.

It has always seemed to me that Pres. Obama's didn't allow things like that predisposition him on any particular candidate.


I like the analysis - and I think it gives a good insight to maybe the "gut feelings" that Obama and Biden are having about this process (where did Biden go to school?).

Determining factor?  Doubt it, but if it's down to two or three...that's when these sorts of "feelings" comes into play.  So we'll see how that goes.

Granholm's bad on Freedom of Speech.

videogame censorship



Democrat for US Senate (Wisconsin 2012)

A Few Thoughts

I doubt that Obama cares much about going to Harvard and Yale per se.  While it is true that both places produce a lot of people who are top notch, so do other schools.  So I don't think Diane Wood will be at a disadvantage because she went to Texas.  Being a Supreme Court clerk and teaching at Chicago is more than only a small number of Harvard and Yale grads can say for themselves.

Also, Virginia (and Michigan) are attached to public universities, but function like private law schools for the most part.  They are both top national law schools providing elite education for big $$$ (not that there is anything wrong with this).  Don't be fooled.  

My gut feeling is that it will be Kagan or Wood.  Both would probably be terrific and I can see little downside for picking either one.  Putting a politician on the court would be a bit of a risk since we don't know what they would be like as a judge.  Which doesn't mean that Obama wouldn't do it, but given the 3 high quality judges (and one law school Dean) on the list, I'd be somewhat surprised.  

Just not Sonia Sotomayor

I've appeared before Sotomayor many times and can tell you that the whispers abour her demeaner - and smarts - have some basis.

Despite her stellar credentials, she is not impressive on the bench.  In my experience - and many of my colleagues have the same impression - she comes across as arrogant, while simultaneously missing the point.  I have zero confidence that she has the intellectual firepower to hold her own against Scalia et al. 

I also think people tend to assume that she's more liberal than she really is based purely upon her biography, which I agree is appealing.  But mostly, I don't think she'd be that capable.



"Demeaner." ROFL!

Are you describing Sotomayor or Scalia?

"In my experience - and many of my colleagues have the same impression - she comes across as arrogant, while simultaneously missing the point."

If Narco News had a dollar for every time Scalia came across as arrogant while simultaneously missing the point, Al wouldn't need to collect donations.

@ Jim

Given the whispering campaign against Judge Sotomayor trying to depict her as an unqualified "affirmative action" pick, you'll have to forgive me if I take anonymous claims like this with a few grains of salt.

@ Laura P

Laura - Jim is not anonymous to me. He's defended indigent clients in Sotomayor's courtroom. Hope that's helpful.

My Guess

is that Obama understands the desirability of appointing someone with "real world" experiences, and that would be Granholm.

However, that would mean being denied the pleasure of seeing that dumb, racist cracker Sessions spend the Summer trying to work over a female Latina-Sotomayor.  Sotomayor would invite the largest number of Republican kamikaze attacks.



Thanks for clarifying. It is difficult to judge the validity of claims without a way to verify them, so this additional information is helpful. It does appear that there is a whispering campaign against Sotomayor independent of Jim, which seems rather suspicious. However, I have no further information or views on this issue so I will bow out.

torture O/T

Hi, Al--

I am hoping to read some of your thoughts on the current torture/legal situation soon. Being that you are someone with so much experience in Latin Amercia(sadly no stranger to torture)-- as well as a talent for "big picture" analysis-- your take would be very valuable to me and I'm sure many others at this time.



Sarah Moriarty

@ Sarah

Glenn Greenwald's blog (www.salon.com) has been doing a very good job on the torture topic.  Try him.

Nice to see someone is calling Obama on this crap.

@ Mary in Seattle

Mary - re: "Nice to see someone is calling Obama on this crap..."

There are hundreds of bloggers and activists doing that. Take a walk through The Daily Kos rank-and-file diaries and daily you'll find dozens of such people that imagine themselves as "calling Obama on this crap."

If you're upset that I don't, that's just weird. It's like some people expect "progressives" to walk in lock-step with jack-boots and uniforms and all of us should publish the same diary every single day. Well, that's not what most people come here for: I think most come here expecting a unique and original take on things.

I'm going to weigh in shortly on the milieu of "issues" that include torture prosecution and photos of torture. I guarantee that you're gonna hate what I have to say about that, because my thinking is independent of the crowd's.

But, please, just stop expecting me to be like everyone else. It'll only give you high blood pressure each time I don't do that, which is every single hour of every single day!

Torture, torture, torture...

Al, I really hope you are looking at this with a fresh pair of eyes.  I have been finding it amusing and weird that most progressive outlets I frequent - on the radio and on the internet - are virtually in lockstep over this issue.  I just find it so strange that there is little variation amongst these people on these issues.  Even something like releasing the photos, which is legitimately open for debate, is being welcomed with contempt from many mainstream progressives.  There is suprisingly very little honest discussion and analysis given to Obama's side of these complicated issues. 

After 8 years of carefully watching the neocon base of the Republican Party, I cannot help but see eery similarities on the Democratic side.  There is the same type of uncompromising, self-righteous rhetoric.  There is a sameness to their arguments.  There is a sameness to their level of passion.  There is a sameness to their short-sightedness.  These type of people on the right cooked up a war in Iraq at a moment where we were fighting in Afganistan, with little regard for the long term affects on us and on the region.  Now we've got people on the left who are cooking up a torture prosecution in the midst of a global economic crisis and in the midst of unrest in several areas on the Mid East and Asia, with little regard for the long term affects of this on our country and on the wars that Obama is just not going to end any time soon.  It's all about achieving the goal, with little regard to the plan and timing of getting there.

The difference, so far, is thankfully Obama has resisted them, something Bush ultimately couldn't do. 


I have noticed more than a few similarities between some on the left and those on the right who are their mirror image but who they claim to hate. It has been a rather educational experience for me.

Supreme Court Nominee

Next to Tom Lesser as a nominee, a great honest, honorable

candidate would be William Leaphart, who is presently a

Supreme Court Judge for the State of Montana.  He is a graduate of the University of Montana Law School.  Probably the most forward,

free-thinking, thought provocing, unintimidated person I have ever

known.  He is 61 years old, but what he could accomplish in the male gender years he has left would be such a contribution. He has continued his studies of law at Harvard on a continual basis, for whatever impression that makes.  How do we get these men nominated?  

Linda Hardy,PT

Re Sotomayor

Not sure if this thread is still active, but I've been on trial the past couple of weeks and haven't had an opportunity to respond.

About Sotomayor, some may have noticed that the NYT had a fairly glowing article the other day, praising her intellect, etc.  Buried in the article was a comment, acknowledging that she can be somewhat brusque (or something to that effect).  This quality was dismissed as just style.

I personally have no problem with a Supreme Court judge who is tough on lawyers.  Some (if not most) of my favorite judges have that quality.  But it's not her manner on the bench that gives me pause, so much as it is the sense that she is not a very deep thinker.

I realize that people here have little reason to trust me, as an anonymous poster.  All I can do is assure you that I am not making these comments out of some hidden agenda.  I would love it if Obama could name an Hispanic and/or woman.  And I would love it if the person was a devotee of Lawrence Tribe and Brennan.  But based upon my interaction with her during oral arguments of appeals (and anecdoctal comments from colleagues), I just don't believe that Sotomayor is all that capable, notwithstanding her great resume.

Finally, I will repeat my other observation: I really believe people incorrectly assume that she is very liberal simply because of her biography.  At least when it comes to criminal cases, I think she's better described as a "moderate," or at least someone who does not naturally question the government with a skeptical eye.

I would prefer any of the other names mentioned as front-runners without having any such personal experience with them.

Just my view, fwiw.

@ Jim

Sorry to come out swinging like that at you. I have no personal knowledge of Sotomayor, and must therefore give way to those that do. What rubbed me the wrong way is that the Jeffrey Rosen article on her fits a pattern that is commonly seen when trying to diminish the chances of women candidates, or minority candidates. A white male candidate rarely has to worry about being judged on his personality rather than his qualifications - what is called "arrogant" in a woman or minority candidate is often perceived as "confident" in a white male candidate. It also seemed likely that Republicans would use this to claim that Sotomayor (if Obama were to pick her) is unqualified and only picked because of being a Latina, i.e., an "affirmative action pick". If they also want to make affirmative action an issue in the confirmation hearings, that could get really ugly.

So, without knowing anything about Sotomayor than what I have read, my natural tendency is to be sympathetic to her because of the lines of attack her opponents (Rosen and the Republicans) are making on her.

That said, I find Hasen's argument that it will be Diane Wood to be compelling.

@ Laura


No offense taken and no need to apologize.  You're right that women often get unfairly criticized for some qualities that are deemed praise-worthy for me.

For me, "arrogance" is a quality I particularly dislike in a judge, perhaps because it's so common, almost an occupational hazard.

By way of contrast, when I was younger I worked for a state appellate judge who was smart, had a heart of gold and would solicit views from anyone in the courtroom, including court officers and the secretarial staff. If Obama can find someone not just with smarts, but with that kind of humility - no easy task, to be sure - it will a pick I will champion.

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About Al Giordano


Publisher, Narco News.

Reporting on the United States at The Field.

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