Several with Mass. ties thought to be on short list

Martin Flaherty in The Boston Globe, April 10, 2010

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By Matt Viser, Globe Staff  |  April 10, 2010

WASHINGTON — President Obama, anticipating that Justice John Paul Stevens would retire, has narrowed a list of candidates for the nation’s highest court to about 10 names, although court observers are split over whether he will pick an intellectually liberal stalwart, to influence the court for years to come, or a moderate, to ensure confirmation in the weeks ahead.

The White House would not release the names on that list, but Obama vowed to quickly choose a successor with qualities embodied by Stevens. Several candidates with Massachusetts ties, analysts say, are expected to be considered, including Elena Kagan, a former dean of Harvard Law School and the current solicitor general.

She has not served as an appellate judge — all nine of the current justices had previously served on such courts — but that is not considered a drawback, analysts said. The Supreme Court has historically featured a diverse mix of academics, politicians, and attorneys.

“One consideration is qualifications. But it would be nice to see that opened up and not just qualifications as a previous appellate judge, but someone with an academic, military, or political background,’’ said Martin Flaherty, a law professor at Fordham University Law School.

Several of Obama’s Cabinet members — Secretary of State Hillary Clinton, Attorney General Eric Holder, and the secretary of homeland security, Janet Napolitano — could be on a short list as well, analysts say, and none of them has served on an appellate bench.

Kagan is among several possible candidates with ties to Harvard Law School and Massachusetts. Governor Deval Patrick’s name, too, has surfaced in numerous news reports, although such a nomination is considered unlikely, given that he is in the middle of a reelection battle and that he had previously expressed little interest in the post.

A spokesman said yesterday Patrick’s position has not changed.

“Deval Patrick is someone who would have been a plausible nominee if he were not in a tough reelection race and where an appointment wouldn’t look so much like an escape hatch,’’ said Scott Moss, a professor at the University of Colorado Law School.

Kagan is the first woman to serve as solicitor general, the advocate who represents the government before the Supreme Court. She was also the first female dean of Harvard Law School and a clerk for the late justice Thurgood Marshall.

“She would absolutely be a superb candidate,’’ said Charles J. Ogletree, professor at Harvard Law. “If you think of someone successful in every possible endeavor, and who has the intellectual heft to handle all of the dynamics of the current court, she would be it.’’

Kagan, who declined requests for comment yesterday, was interviewed by Obama last year for a Supreme Court seat before he appointed Sonia Sotomayor to succeed Justice David H. Souter. Candidates who have already been through the review process are expected to be among those first considered for Obama’s second appointment to the high court.

Those candidates would also include Diane P. Wood, a judge on the US Court of Appeals for the Seventh Circuit in Chicago, and Merrick B. Garland, a judge on the US Court of Appeals for the D.C. Circuit.

“There’s some efficiency in going with people you’ve already vetted, and that would tend to place the front-runners from last time at the top of the list,’’ said Kermit Roosevelt, a University of Pennsylvania law professor who was a clerk for Souter in 1999 and 2000.

“Obama certainly doesn’t have the same kind of pressure to appoint a woman as he did before, and that might make, say, Merrick Garland a stronger candidate,’’ Roosevelt added.

“And maybe he’d be more likely to go outside the ranks of appellate judges, since Sotomayor was a fairly strong doctrinal judge.’’

Garland, who oversaw the investigation of the 1995 bombing of a federal building in Oklahoma City and the successful prosecution of Timothy McVeigh, is considered a moderate jurist.

Other possible candidates, according to court observers:

■ Martha L. Minow, current dean of Harvard Law School. “She’s obviously honored to be mentioned but isn’t making any statement beyond that,’’ said Emily Dupraz, a spokeswoman for the school.

■ Harold Hongju Koh, a Boston native and former dean of Yale Law School. He is now legal adviser to the State Department and would be the first Asian-American nominated to the court.

■ Cass R. Sunstein, a Harvard Law School professor who is on leave to serve as administrator of the federal Office of Information and Regulatory Affairs.

■ Governor Jennifer M. Granholm of Michigan, who cannot seek reelection because of term limits and is a former attorney general of her state.

White House officials said that the selection process will be overseen by White House counsel Bob Bauer. Another lawyer in the counsel’s office, Susan Davies, will oversee the day-to-day effort, said an administration official who was not authorized to discuss the process publicly. They declined to elaborate on Obama’s list.

“When you have two picks in a relatively short period of time, the second one is not nearly as grueling, because you have the short list,’’ said Moss. “It’s hard to see that the list would be very different now than . . . a year ago.’’

Flaherty was not so sure.

“The one other thing in this is to do something nobody expects,’’ the Fordham professor said.

Matt Viser can be reached at maviser@globe.com