Now that Justice John Paul Stevens has gone and announced his upcoming retirement from the Supreme Court, we know what to expect: grinding confirmation hearings in which Republicans try to elicit a gaffe from the president’s nominee, who will do his or her best to say as little as possible and nothing of interest, while the press chronicles the whole tableau in obsessive detail. But before that happens, we get the fun part: an orgy of media speculation about who the lucky nominee will be.
Major media outlets have rushed out with lists of potential candidates today—see the NYT, WaPo, WSJ, Reuters, and Yahoo!—and while the field of contenders runs to at least a baker’s dozen, the consensus seems to be that there are three front-runners: Solicitor General Elena Kagan; Diane Wood, an appeals court judge for the 7th Circuit; and Merrick Garland, an appeals court judge on the D.C. Circuit. Here’s the picture of each of them that emerges from today’s coverage:
Elena Kagan:
Unsurprisingly, she’s considered to be smart: Reuters says she’s “known for a keen legal intellect,” and the Post declares “no one has disputed her broad knowledge of the law.” Despite being a Democrat with a background in academia, she’s also known for trying to play nice with conservatives: several outlets note her efforts to expand academic and idelogical diversity while the dean of Harvard Law School, as well as her ability to make sure everybody got along. She’s also the first female solicitor general, a former clerk for Thurgood Marshall, and a former colleague of Obama’s at the University of Chicago.
The downside: As the WSJ and Yahoo’s Chris Lehmann note, Republicans have already blocked her appointment to the federal bench once, when Bill Clinton tried to appoint her to the appeals court in 1999. And her barring of military recruiters from Harvard Law on the grounds that “don’t ask, don’t tell” violated university non-discrimination policies probably won’t help on that front. (That episode gets a mention in almost all the coverage; the fact that similar battles played out at lots of other top law schools does not.) At the same time, Kagan’s defense before the Supreme Court of controversial Obama administration counterterrorism policies could anger liberals.
Fun Fact: The Journal notes that Kagan might be in the position to take her own advice for the confirmation hearings: in 1995, she reportedly wrote that the trick is “alternating platitudinous statement and judicious silence.” (Was she advising Sotomayor?)
Diane Wood:
Kagan may be smart, but the press wants you to know Wood has some serious candlepower and doesn’t readily back down from a legal fight. The Post says she is “praised as a brilliant judge with a fully developed judicial philosophy and constitutional view.” Reuters says she “could provide an intellectual counterpoint to the court’s conservatives.” The Times says she “is respected for standing firm against strong, conservative judges.” And the Journal says she “boasts an impeccable legal pedigree and is regarded as one of the leading scholars on one of the nation’s most prominent appellate benches.” Underlying all this praise seems to be some media anticipation for a future Clash of the Legal Titans: If you enjoyed Wood-Posner, just wait until you see Wood-Scalia!
What else is there to know about Wood? Reuters calls her “a moderate liberal,” but among this field, she’s “the favorite of the liberal activists,” says the Post. That liberal label seems to stem at least in part from the fact that conservatives dislike her on abortion-related grounds, stemming from her rulings in a case involving NOW. (The Journal has a quote from a conservative think-tank type who calls her “a hard-left judicial activist and aggressor on culture-war issues.”)
But what may be most remarkable about Wood’s judicial outlook is her stance on antitrust law. In a glowing profile last year for The New Republic, Jeffrey Rosen suggested that she might revive some of the economic populism once exemplified by William O. Douglas. Wood “came to argue for voluntary cooperation among international antitrust agencies in the hope that cooperation may eventually lead the way to binding agreements between countries about how to police international economic competition,” Rosen writes. Reuters notes that she is “widely considered one of the nation’s top experts on international competition law.”
Fun Fact: According to Reuters, Wood plays the oboe.
Merrick Garland:
The press narrative is shaping up already: if Obama picks this guy, it’s because he didn’t want a fight. Consider this language from the Post: “a favorite of the Washington legal establishment, widely praised by lawyers and other judges for his well-reasoned and generally moderate opinions.” Or this from Reuters: “a judicial moderate, known for writing thorough, well-reasoned opinions.” Or this from the Times: “well regarded by Democrats and influential Republican senators like Orrin G. Hatch of Utah.” This is how Yahoo’s Lehmann sums up the “potential controversies” surrounding Garland:
Garland is the most moderate member of this early trio of possible nominees. He has won praise from his former Clinton Justice Department colleague Jamie Gorelick as “the Democratic John Roberts” — that is to say, a pragmatic legal thinker focused on building consensus rather than stoking ideological battles. His rulings do not lean one way or another on abortion rights, and he has induced a conservative majority on the D.C. federal appeals court to join his ruling permitting a controversial lawsuit from a detainee at Guantanamo Bay to proceed. Garland would likely yield a number of Senate GOP votes early on — an important consideration for Obama if he wants to avoid a potential filibuster.
So, not so controversial. But the Journal’s coverage—which also cites Jamie Gorelick—makes the case that that low-key nature has helped Garland become an effective jurist, and one who’s willing to provide checks on executive overreach. In that Guantanamo case, which involved seventeen Chinese Muslims being held at the prison, he served on a three-judge panel that rejected unsubstantiated government claims linking the Uighurs to terrorism. “This comes perilously close to suggesting that whatever the government says must be treated as true,” he wrote for the panel.
Fun Fact: As a federal prosecutor, Garland supervised the prosecution of Theodore Kaczynski.
Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.