Who Should Replace Justice Stevens?Dean William Michael Treanor in Slate, April 10, 2010
Justice John Paul Stevens has announced his plans to retire. Let the shortlist parlor game begin. Of course, it already has. The three names that the White House has been bandying about to reporters are Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit, Solicitor General Elena Kagan, and Judge Merrick Garland of the D.C. Circuit Court of Appeals. We asked some of our favorite legal friends to weigh in with their less-obvious choices. Here are their answers so far, and we'll add more as they come in. Tell us your own choices in the comments, and we'll round those up, too. Here's Slate's shortlist from last year, when the winner was Justice Sonia Sotomayor.
I didn't support Hillary Clinton's candidacy for president, but I think she'd be a rock star of a Supreme Court justice. Clinton has all the makings of a full-throated, strong-minded liberal stalwart on the bench. She's been an advocate for children and for families for as long as she's been in public life. They are in need of as much help as they can get on the court. (Wait for this term's ruling on whether juveniles can serve life without parole to see what I mean.) She knows how to frame ideas for a wide audience, which would help the liberal wing of the court counterbalance the genius rhetoric of Antonin Scalia. She's a celebrity, which means she'll automatically command the kind of attention that a junior member of the court usually does not. She's served as secretary of state long enough to make a graceful exit. She is a former senator, which should win her some courtesy and deference during the godforsaken nomination process—will the Republicans who worked with her personally really throw grenades when they question her? And, of course, she brings a wealth of real-world political experience to the court. The only knock on Clinton is that at 62, she won't necessarily serve for decades upon decades. But she looks healthy and energetic as ever and I'd trade a few extra years for her mettle and character.
—Emily Bazelon, Slate senior editor
Bryan A. Stevenson
The nomination of 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. The current members of the court have no real sense of the injustices and cruelty of the criminal justice system, the complete absence of any semblance of an adversary system in many parts of the country, the inability of the poor to get their day in court in any kind of case. The court would benefit immensely from Bryan Stevenson's experiences and perspectives, just as Justice Marshall's colleagues benefited from his experiences and insights as many related in their tributes to him after his retirement. Throughout its history, the court has been well-served by the diversity of experience of its members. It is urgently in need of that kind of diversity today.
—Stephen B. Bright, president and senior counsel, Southern Center for Human Rights
Justice Oliver Wendell Holmes famously wrote that the life of the law is not logic but experience. Holmes, a thrice-wounded Civil War combat veteran, may have had his wartime experience in mind. In retiring, Justice John Paul Stevens will deprive the Supreme Court of its last sitting veteran. At a time when our nation is at war and the Supreme Court finds itself increasingly brought into cases involving war powers and the military, the court needs a justice with visceral military experience, if not combat experience as well. Accordingly, President Obama should choose a veteran to replace Stevens. One option would be William Gunn, current general counsel of the Department of Veterans Affairs. Gunn graduated with honors from the Air Force Academy and Harvard Law School and then served nearly 20 years in the Air Force Judge Advocate General Corps. He was part of the military that transitioned from the Cold War to the post-Cold War deployments of the 1990s to today's global war on terrorism. 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. And he's been recently confirmed by the Senate, an asset for any pick.
—Phillip Carter, lawyer at McKenna Long & Aldridge and former deputy assistant secretary of defense for detainee policy for the Obama administration
There are many exceptionally qualified potential nominees, but because I think the court desperately needs to replace Stevens with an experienced trial lawyer, my favorite candidate is Charles Ogletree. Ogletree was a legendary trial lawyer with the D.C. Public Defenders and continues to consult and litigate while teaching at Harvard Law, where he also runs the clinical program. He a deeply religious Protestant and a leader of the African-American community. He is a beloved teacher and an important scholar. He would add several important elements to the current court in addition to his trial experience, including real-life exposure to a wide range of people and situations. He is a lawyer's lawyer. He is far more representative of African-Americans than the court's only other black member, Clarence Thomas. Most of all, he is a real "mensch"—a man of great compassion, intellect, and courage. He also has a compelling life story. He has mentored many of the leading young lawyers, including our president. The selection of Ogletree would be memorable and dramatic. He would make an extraordinary justice.
—Alan M. Dershowitz, Harvard Law School professor
Stephen Carter, David Cole, Pam Karlan
If President Obama acknowledges that filling this vacancy is sufficiently important to warrant a fight, then I hope he will nominate someone like Pam Karlan or David Cole. Both are graduates of Yale Law School, and both are law professors who have straddled academia and legal practice. More important, both have been centrally involved in the most important legal issues of the day. In Karlan's case, she is one of the nation's leading experts on anti-discrimination law and oversees Stanford Law School's Supreme Court clinic. In Cole's case, he has been the country's most informed vocal critic of the legal excesses that have accompanied the so-called war on terror, and he has been continuously litigating against these excesses. Either would provoke a vicious conformation battle, but, in either case, the battle would be worthwhile. If Obama wants a safe choice, then he might tilt toward an academic like Stephen Carter. Carter used to make the short list when Clinton was president, and although he is rarely mentioned anymore, he is still relatively young (not yet 60) and firmly planted in the middle of the political road. An expert on constitutional law (especially religion) as well as intellectual property, he's probably a little too conservative for my personal taste, but that's exactly what makes him safe.
—David R. Dow, University of Houston Law Center professor, litigation director at the Texas Defender Service, and author of The Autobiography of an Execution
Many of us (myself included) would like to see President Obama nominate somebody with experience in elected office, like Jennifer Granholm or Janet Napolitano. Maybe it will happen, but it seems unlikely—the nominee would be attacked as "too political." So how about a state court justice instead of a federal appellate judge? New Jersey Supreme Court justice Stuart Rabner is smart, young, and widely respected. He is a career prosecutor with a reputation for great integrity and for being nonpartisan: Democrat Jon Corzine appointed him, but Republican Chris Christie is also a fan. Plus, Rabner would add geographic diversity: He's a North Jersey guy, whereas Alito and Scalia are South Jersey. (More seriously, geographic diversity, if it still matters to anyone, obviously cuts against my suggestion—but at least Stuart is not a Washington lawyer, a group that I think is already over-represented on the court.)
—Christopher L. Eisgruber, Princeton University provost
Sure, conservatives will go ballistic. But why should they prevent President Obama from nominating an extremely smart, well-credentialed, thoughtful, and seemingly confirmable candidate? Koh, the former Yale Law School dean who is legal adviser for the State Department, would bring intellectual fire power to the court and broaden it in other ways as well. He's never been a judge (a plus for the current court) but has 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.
—Lee Epstein, Northwestern University School of Law professor
President Obama should nominate Elizabeth Warren to replace Justice Stevens. Warren is the Harvard law professor 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. For years before the bubble burst, Warren warned us about the dangers of subprime mortgages. She has proved masterful at communicating this message to the public and to Washington. Her life story is an embodiment of what people can do when given the economic opportunities she has advocated in her writings. The daughter of a janitor, Warren did not attend elite private universities—she went to the University of Houston and Rutgers law school before eventually joining the Harvard faculty. The current Supreme Court has no justices with expertise in business matters, and has been pushing the law in a conservative direction in such cases. Warren adds that expertise as well as a progressive perspective. And for a White House that likes nominees it knows, it is important to note that the president met Warren years ago, and promoted many of Warren's ideas during his presidential campaign.
—David Fontana is a George Washington University law professor; Seth Grossman, who clerked for Justice Stephen Breyer, is a lawyer at Jenner & Block
Pam Karlan, Kathleen Sullivan, Deval Patrick, Cass Sunstein
At risk of compromised objectivity, I will suggest two of my own colleagues at Stanford, Pam Karlan and Kathleen Sullivan, both accomplished Supreme Court litigators, highly influential scholars of Constitutional law and uncannily perceptive and energetic interlocutors. If you want an antidote to the "umpire calling balls and strikes" nonsense that has passed for jurisprudence recently, read Karlan's book Keeping Faith With the Constitution. If you want to see a model of the judicial temperament in action, listen to almost any argument or lecture Kathleen Sullivan gives.
Deval Patrick, Massachusetts governor and former assistant attorney general for civil rights. It would be a welcome departure from recent practice to have a former elected official on the bench and Patrick also has experience in business on the board of United Airlines, and in private legal practice. He has been an effective and innovative executive and a strong advocate for social justice. Patrick's range of experiences and skills would add a great deal to the high court. Bonus: an African-American voice on the court other than that of Clarence Thomas.
Cass Sunstein, Harvard Law School professor and Obama's head of the Office of Information and Regulatory Affairs. Yes, he has the longest paper trail of any nominee since Robert Bork; and yes, the extreme right will go ballistic. Who cares? Sunstein is someone any sensible conservative should embrace. He has been an eloquent advocate of judicial moderation and as a scholar he has consistently put good judgment and sound methodology above ideology. He has written broadly and convincingly on a wide range of the most important issues facing the country and he has developed a nuanced and compelling political philosophy and theory of constitutional and statutory interpretation.
—Richard Thompson Ford, Stanford Law School professor
Carter G. Phillips
In making his choice, I would urge the president to follow Stevens' example in selecting a nominee who is intellectually inquisitive, comfortable in his or her own skin, and guided by an intuitive desire to actually understand the law made by others, rather than to remake the law in his or her own image. Of course, some good, plain-spoken Midwestern persuasive defense of the rule of law—as Congress or the Constitution actually provided—would also be welcome and Stevens-esque, too.
A nominee from the usual appellate judge circle who meets these criteria: Merrick Garland, who has a reputation for evenhanded, tough-minded, but gracious questioning. However, it is really well past the time to break the Circuit Court template, especially in favor of someone with a marquee Supreme Court practice. Carter G. Phillips should be the president's top candidate. Phillips has 65 appearances before the court, experience in the SG's office, and knowledge of court precedent that is unmatched. He possesses the decency, heart, and motivation for the common good of the most dedicated pro bono, community legal aid lawyer. Phillips is a nominee with Stevens' gifts but also the ability to form majority coalitions far more regularly. It is not exaggeration to say that the survival of modern civil rights litigation is the result of Phillips' handiwork. His brief in the Michigan affirmative action case was repeatedly cited by name during oral argument by the liberal and moderate justices, and it was strategically and substantively effective in holding a narrow, but important majority. President Obama cannot change the numerical liberal-conservative split replacing Stevens, but he can bring to the court a justice who can make the big plays and win the close contests, and that's Phillips. Some advisers in the White House may look to Deval Patrick or Harold Koh, both of whom are lawyers of distinction and would be attractive from a diversity perspective. But frankly, in this season of Tea Party madness, these nominees could easily get roughed up early and rejected or blocked. By contrast, Phillips should be filibuster-proof. And he is in command of the kind of logic and intellect Kennedy would find hard to resist. Majorities of Phillips, Kennedy, Ginsburg, Breyer and Sotomayor would follow. Phillips would also bring a needed practitioner's wisdom to the court. If Phillips for some inexplicable reason didn't jell, I would have the ebulliently intelligent, multiparty Walter Dellinger in my back pocket.
—Doug Kmiec, U.S. ambassador to the Republic of Malta
In almost every respect, the qualifications of David Tatel should be obvious. He has served with great distinction on the D.C. Circuit for 16 years and is widely considered one of the best judges in the nation. He's hard-working, thoughtful, and rigorously fair. It is also to his advantage that, unlike recent appointees, Judge Tatel has strong connections outside the Washington-Princeton-New Haven-Cambridge corridor. Like Justice Stevens, Judge Tatel was a distinguished private-sector lawyer for many years, including time in Chicago. He attended the University of Michigan for his undergraduate education and the University of Chicago for law school. His age, 68, which most would assume is a disqualification, should instead be viewed as a positive qualification. The notion that presidents should strive to pick someone who will be on the court for 30-40 years is entirely misguided. A president should strive to pick someone who is up to the job as soon as he or she takes a seat on the high court, not a decade later, after gaining sufficient experience. The problems of the nation are too great and too pressing to allow for the Supreme Court to become a training ground for the future. Judge Tatel is known and highly respected by the current justices and would be ready from Day 1. When Justice Oliver Wendell Holmes joined the court in 1902 he was 61, and he went on to serve for more than 30 years. Lewis Powell was 64. Given that life expectancy when Holmes was born in 1841 was a lot shorter than it is today, there is good reason for a president now to believe that a healthy 68-year-old can serve for a long and distinguished time on the court.
—Richard J. Lazarus, Georgetown University law school professor and faculty co-director of the Georgetown University Supreme Court Institute
I've been saying for some time now that I believe Pam Karlan is truly in possession of a once-in-a-lifetime legal mind. Through her work at Stanford's Supreme Court Litigation Clinic, she's had the kind of experience on the defense side that is really lacking at the court. At 51, she has served as assistant counsel at the NAACP Legal Defense and Educational Fund, authored three leading casebooks on constitutional law, and worked tirelessly to articulate and defend a principled liberal view of the constitution. I really do believe that nobody else talks like Karlan, thinks like Karlan, or brings the kind of crackling youth and brilliance and intellectual energy I'd frankly pay to see on the left side of the high court.
—Dahlia Lithwick, Slate senior editor
Cass Sunstein is the most important legal scholar of his generation. No one has contributed as many important ideas to as many fields of law as he has. He has written influentially on legal reasoning, the advantages and limits of cost-benefit analysis in administrative law, the revolution in constitutional rights, cognitive biases and their implications for the law, deliberation and polarization of opinion, climate change, risk assessment, and much else. Currently the chief of the Office of Information and Regulatory Affairs in the Obama administration, his political instincts are generally liberal but he has surprising and unpredictable views on a range of issues, which make him difficult to fit into standard political classifications. An honest, humane, and respectful person, he enjoys debating and writing with friends across the political spectrum. It also doesn't hurt that he writes beautifully.
—Eric Posner, University of Chicago law professor
Martha Minow, Elizabeth Warren, Vicki Jackson, Robert Post, Diane Wood
If thinking outside the current box (and looking to historical precedents, such as Felix Frankfurter and William O. Douglas), many current law professors are worth thoughtful review. Martha Minow, now dean of the Harvard Law School; Elizabeth Warren, also from Harvard and a leading expert on commercial and bankruptcy law; Vicki Jackson of Georgetown's law faculty and a scholar of comparative constitutional law; and Robert Post, Yale's dean, whose understanding of the First Amendment, constitutional law, and the role of public institutions is profound. Diane Wood, now sitting on the 7th Circuit, and widely discussed in the last nomination round, offers both the vantage point of a former law professor (a scholar of civil procedure and anti-trust) and a member of the Department of Justice.
—Judith Resnik, Yale Law School professor
Harold Koh would bring much-needed expertise in international law to the Supreme Court. Currently legal adviser at the State Department and formerly assistant secretary of state for democracy, human rights and labor as well as a lawyer in the Justice Department's Office of Legal Counsel, Koh is a former dean of the Yale Law School. He has a compelling personal story as the child of immigrant parents, has been a longtime fighter for human rights and would be the first Asian-American appointee to the court. In his recent speech at the meetings of the American Society for International Law he defended U.S. policy in the anti-terrorism campaign. The speech shows that he is no legal radical when operating from a position of power, as his detractors sometimes fear.
—Kim L. Scheppele, director of the program in law and public affairs at Princeton University
In considering whom to nominate to the Supreme Court, President Obama should focus, above all, on who would be a great justice, and Judge Robert Katzmann very clearly has the potential to be exactly that. What makes Judge Katzmann stand out from a very impressive group of possible nominees is the combination of important strengths he would bring to the Court. During his decade of service on the Second Circuit, he has been an extraordinarily skilled appellate judge, a master of the judicial craft. He knows government from an academic perspective: A former professor at Georgetown and Brookings Fellow, he has produced influential scholarship on the relationship between the courts and Congress, a subject of critical importance to the Court. He also understands governance from a practical perspective, having had a long working association with the late Senator Moynihan. He is a gifted writer whose opinion writing won an award from the Green Bag magazine. Finally, he is a judge who, rather than operating in an ivory tower, has a powerful dedication to helping the less fortunate. Recognizing the plight of the countless immigrants facing deportation without legal representation (or with grossly inadequate representation), he personally launched an extraordinary effort that has engaged a broad spectrum of New York City's lawyers in voluntarily representing people in the immigration court system. Judge Katzmann inspires respect across the political and judicial spectrum. His combination of intellectual gifts, judicial skill, knowledge of government, and concern for the disadvantaged is compelling.
—William Treanor, dean of Fordham Law School
In the spirit of an off-beat list, my vote goes to 40-year-old Jeffrey Fisher, co-director of Stanford Law School's Supreme Court litigation clinic. He has the temperament, track record, consensus-building skills, and life expectancy to make him a formidable nominee. Wildly accomplished for his years, Fisher is already considered one of the most influential lawyers in the country. Charmingly, he also served as a clerk for Justice Stevens. As a litigator, Fisher has compiled an astonishing string of high court victories, in part because of his impressive ability to persuade Justice Scalia to side with criminal defendants. That skill alone would make him a formidable presence on the court. Moreover, having never been a judge, (before joining the Stanford faculty, Fisher worked at the well-regarded law firm of Davis-Wright Tremaine), his paper trail is mostly academic. The big strike against him is age. Then again, in 1811, James Madison swore in Associate Justice Joseph Story. His age at the time: 32.
—David Feige is a lawyer and creator of the TNT series Raising the Bar as well as the former trial chief of the Bronx Defenders.