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.


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About Al Giordano


Publisher, Narco News.

Reporting on the United States at The Field.

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