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Handicapping Souter's Replacement

Short lists abound. With yesterday's news that Justice David H. Souter will retire after this term, speculation turned immediately to his replacement. Of course, only one person's list matters. But bloggers, journalists and pundits won't be stopped from considering the field and handicapping the players.

"The early betting is that Obama will choose a woman, a minority or someone who fits both categories," writes Tony Mauro in The National Law Journal. "Hispanics and Asian-Americans are two groups that have never been represented on the nation's highest court. With Justice Ruth Bader Ginsburg the only female now sitting, pressure will be strong to replace Souter with a woman." Mauro's short list of likely candidates includes:

  • Sonia Sotomayor, a Hispanic female who sits on the 2nd U.S. Circuit Court of Appeals.
  • Elena Kagan, the former dean of Harvard Law School who is less than two months into her tenure as the first female U.S. solicitor general.
  • Harold Koh, the former Yale Law School dean and an Asian-American, whose nomination as State Department legal adviser is pending.
  • Kathleen Sullivan, the former Stanford Law School dean and a partner in the New York office of Quinn Emanuel Urquhart Oliver & Hedges.
  • Diane Wood, a judge on the 7th U.S. Circuit Court of Appeals.
  • Kim M. Wardlaw, a judge on the 9th U.S. Circuit Court of Appeals who is Hispanic.
  • Massachusetts Gov. Deval Patrick, a former assistant U.S. attorney general for civil rights who is African-American.

A slightly longer short list published today by Associated Press includes all of the above plus:

  • Leah Ward Sears, chief justice of the Georgia Supreme Court.
  • Sandra Lea Lynch, chief judge of the 1st U.S. Circuit Court of Appeals.
  • Johnnie B. Rawlinson of the 9th U.S. Circuit Court of Appeals.
  • Ruben Castillo of the U.S. District Court for the Northern District of Illinois.
  • Merrick B. Garland of the U.S. Circuit Court of Appeals for the District of Columbia Circuit.
  • M. Margaret McKeown of the 9th U.S. Circuit Court of Appeals.
  • Pamela S. Karlan, law professor at Stanford University.
  • Cass Sunstein, University of Chicago law professor.
  • Michigan Gov. Jennifer Granholm.

At SCOTUSblog, Tom Goldstein has a short short-list. "We can say that it has to be a woman," he writes. "The gender imbalance on the Court is absurd. ... Race and ethnicity seem less important." Based on that, he predicts it will come down to Kagan, Sotomayor and Wood -- along with "two more out-of-the-box candidates, perhaps one with significant political experience and another who is a progressive visionary."

Others have lists of their own, and most list some variation of the above. My money would be on either Sotomayor or Kagan. Obama has a chance to make history by nominating the first Hispanic to the Supreme Court and he has a well-qualified candidate in Sotomayor who also addresses the gender imbalance. On the other hand, Obama has not been shy about favoring his Harvard Law School connections and no one would be surprised if he gave its former dean the nod.

Posted by Robert J. Ambrogi on May 1, 2009 at 11:12 AM | Permalink | Comments (2)

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