Ladies First to Souter’s Seat
Justice Souter poses with Justices Scalia, Ginsberg, and Stevens in December 2003 (Mark Wilson/Getty).
Around 10 last night, when the news cycle should have been asleep in bed, NPR broke the news that Supreme Court Justice David Souter would be retiring from the Supreme Court.
The move is surprising given that Souter was one of the younger members of a very old (Stevens is 89) and feeble (Ginsburg was diagnosed with pancreatic cancer) court. But when those two failed to bow out this term, Souter, who has made no secret of his dislike for Washington, decided to take his leave.
The question, of course, is who will replace him. With only one female justice on the bench, Souter’s spot is almost certainly going to be given to a woman — but who?
My guess, and a long-rumored member of the Supreme Court Short-List is Elana Kagan, the former Harvard Law School Dean and the recently appointed Solicitor General. Kagan’s rapid-fire intelligence, ability to broker discussion between partisan groups and down-to-earth demeanor, are legend in the legal community. In her bid for Solicitor General she received endorsements from special interest groups on both sides of the aisle.
Kagan’s hearing for Solicitor General was rumored to be a “trial balloon” for a possible Supreme Court appointment, and if that’s the case, you can expect a smooth nomination and appointment. Lucky for her — and Obama’s vetting team, which doesn’t have the greatest track record.
The newly anointed Democrat, Sen. Arlen Specter, will be a key vote for Kagan. Fortunately, she’s already had a chance to cozy up to the senator in her confirmation hearings in January, even making him chuckle:
She joked with Arlen Specter (R-Penn.), the committee’s ranking Republican, over some or her past legal writing — going so far as to call one of her own memos “the dumbest thing I’ve ever read,” and saying that the position of Solicitor General, which is sometimes called the “10th seat on the Supreme Court,” is more like being the “37th clerk.”
A possible road-block, especially from Conservatives and anti-choice advocates, is her status as a single woman. Kagan has never been married and with the issue of gay marriage likely to end up in the Supreme Court in the next few years, expect her stance on gay rights as a central part of the opposition to her possible nomination.
But interestingly, and as if the fates were rooting for her every move, even that will likely not be enough to stop Kagan. In what would be an almost poetic justice, Souter, too, was never married — a fact that should turn family-values pundits on their heads.
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I would love to see an openly gay person on the court, but I have a gut feeling the president is going to nominate Marjorie Rendell. I do agree that his choice is mostly likely going to be a female.
Kate Klonick,
Solicitor General Kagan is a reasonable choice and her confirmation would go smoothly. When President Obama was picking his cabinet, I wanted him to pick then Sen. Clinton for…well anything. My bigger agenda was that I wanted her on the Supreme Court.
So, I am hoping he does pick Hillary. Keep in mind that she could be quite happy with her current post and may prove to be an excellent Secretary of State. I guess we’ll know soon enough. There isn’t one story I’ve read that even allows for the possibility that President Obama would pick a man.
I’ll just add this to my Obama wish list.
Sandy
You know what made me realize the need for more female voices on the Supreme Court? …the argument the other day about the strip-search case. After male jurors laughed that boys love to preen in the locker room, Justice Bader was like, yeah, idiots–but *girls* don’t.
Kate, gender should not be a factor in nominating a supreme court justice. I don’t doubt that Kagan would do a superb job as a justice, but her being female should not give her priority over other candidates. Of places, the supreme court is the least appropriate place for affirmative action.
So, the first qualification that Obama should look for is gender? What about the other groups that are under-represented on the Supreme Court? Maybe he should look for a Latino, or a Gay, or a Lesbian, or a Union member, or better yet, a Muslim. Yes, by all means, Mr President, make up your short list according to which GROUP you want to score brownie points with. Next, look at litmus test issues, like abortion, gay marriage, card check, terrorist rights, etc. Way, way down on the list–and Rahm Emanuel have some low-level staffer check this out–you can see if the candidate is qualified.