Friday, April 9, 2010

So Soon We Forget Ye, Justice Stevens

Good grief! The ink had not dried from Justice John Paul Stevens resignation statement when media types and Supreme Court junkies were providing their replacement short lists to President Obama.

I haven't seen a stampede of fearless predictions such as these at least since two weeks ago when the Baseball Writers Association predicted next October's World Series winner.

I have a name which is not on many people's list.

Ted Olson.

No, I haven't lost it and betrayed the Democratic Party. I am simply recommending a moderate Republican with extensive Supreme Court experience most prominently as U.S. Solicitor General for President George W. Bush.

Any lawyer who represents the plaintiffs in trying to overturn a state court decision ruling California's Proposition 8 banning marriage of homosexuals was constitutional is a crackerjack litigator in my opinion.  No, I haven't forgotten he was Bush's hit man when he argued successfully before the high court that handed the 2000 presidential election to W.

Court nominees, unfortunately, are not the best jurists available, only those capable of being confirmed by the Senate by the hair of their chinny chin chin. Any Senate Republican voting against Olson would be committing hypocrisy. Finding 10 moderate Democrats wouldn't be mission impossible.

Screw the politics. Olson knows constitutional law. His confirmation unlikely would threaten the 5-4 conservative balance on the court and, all things being equal, could well be the swing vote on a variety of upcoming briefs facing the court.

I appreciate the cases Olson has taken in private practice that were argued before the Supreme Court. One was defending journalists from disclosing their sources in the Anita Hill case involving the confirmation of Justice Clarence Thomas to the bench. Another was defending a convicted spy from the death sentence because it violated a plea bargain agreement.

Are their brilliant progressive jurists floating around? Yes. Can they survive the Senate gauntlet for confirmation? Unlikely. Olson's Senate confirmations in the past helps although Karl Rove nixed Olson in favor of  Michael Mukasey for Attorney General in fear the Democrats would filibuster the replacement for Alberto Gonzales.

I've compiled a partial list prepared by a gaggle of media outlets. Some of these names appeared prior to the Sonia Sotomayor confirmation battles last year.

From NPR:

Most observers expect an announcement from the White House soon and expect the Senate will begin considering the nomination of one of three finalists: Elena Kagan, solicitor general of the United States; and Diane Wood and Merrick Garland, both federal appeals judges.

Kagan, 49, Obama's solicitor general,  has been both agile and sharp — at times even abrupt. Last year, in response to a point by Justice Antonin Scalia, Kagan replied: "I think, Justice Scalia, it's wrong."
Kagan is a former dean of the Harvard Law School, where she was renowned for de-escalating the long-running ideological wars between faculty factions. That would be a useful skill on the court, where Stevens had a reputation for doing much the same and for forming coalitions among colleagues.

Wood, 59, is a federal appeals judge on the 7th Circuit, Chicago, and clerked for Supreme Court Justice Harry Blackmun, who wrote the Roe v. Wade decision legalizing abortion nationwide in 1973. Wood has also been involved in abortion case decisions as an appeals judge, including two that have been overturned by the Supreme Court.

Garland, 57, is also a federal appeals judge, serving on the Circuit for the District of Columbia. He has served the government under presidents from both parties and is considered a judicial moderate. picks the same trio. They also name Hillary Clinton and two other well known politicians, Gov. Jennifer Granholm of Michigan and Janet Napolitano, former Arizona governor and now Homeland Security top honcho.. Others mentioned:

Bryan Stevenson, director of the Equal Justice Initiative in Alabama and professor at the NYU Law School, would be a much-needed return to putting a great lawyer like Louis Brandeis or Thurgood Marshall on the Supreme Court—someone of great intellect who has heroically represented real people with desperate needs in actual cases and knows how the justice system functions in courthouses and communities all over the nation and the impact it has on people.

William Gunn, a war veteran, is current general counsel of the Department of Veterans Affairs. His final assignment as chief defense counsel for the Office of Military Commissions put him at the epicenter of the court's battles over national security policy, a tough position he performed well.

Harold Koh , a bonafide liberal with a wealth of legal experience—as a lawyer, a scholar of international law, a law dean, and in the executive branch (under Reagan and Clinton and now Obama). And, yeah, he'd be the first Asian-American appointed to the court.

Elizabeth Warren, the charismatic Harvard law professor and currently serving as chairwoman of the Congressional Oversight Panel investigating the banking bailout. She has for years been one of the nation's foremost experts on bankruptcy, focusing on how it impacts working-class Americans.

Newsweek mentioned the favorite trio of Kagen, Wood and Garland but ended its story with this admonition:

Still, despite the gravity of the decision, none of the shortlisters would bring a terribly heated confirmation hearing. That's too bad for the cable channels that feed on tension. But for Obama, nothing would be better.

Readers comments are welcome as long as they remain civil. We reserve the right to delete any comments that are vulgar, libelous and totally irrelevant to this posting. -- Jer 

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