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10 BEST likely picks for Supreme Court justice

by Jordan Green

Elena Kagan

The most liberal member of the Supreme Court, John Paul Stevens, who was appointed by the quintessential moderate Republican president, Gerald Ford, has announced his retirement. (What does that tell you about the country?) President Obama has pledged to quickly nominate a replacement, and conventional wisdom says the White House is working from a short list of 10. Administration officials have leaked three names to the press, which means it’s virtually assured that none of them will be the actual nominee; let’s assume a coordinated leak is being used as a diversionary tactic to keep the Republicans from conducting effective negative research. The name at the top of the list is Elena Kagan, the White House’s 49-year-old solicitor general. Anyone remember Harriet Miers?

Merrick Garland

The safest choice is considered Merrick Garland. He’s a US Court of Appeals judge for the District of Columbia, and the federal appellate bench is where practically all the recent justices have come from. As a former prosecutor in the Oklahoma City bombing case, he owns a biography that Democrats and Republicans can both love. Doug Kmiec, who worked in the Reagan Justice Department with future Supreme Court Justice Samuel Alito, cites Garland as a likely choice on Slate.com, and Daniel Foster of The National Review lists him as the least objectionable (that is, least left-wing) candidate.

Diane Wood

US Court of Appeals Judge Diane Wood, who serves on the 7 th Circuit in Chicago, is the third of the “leading” candidates. The Washington Post has reported that Wood is a onetime colleague of Obama’s at the University of Chicago. She’s widely considered to be the liberal heavyweight on the 7 th Circuit, and her support for abortion rights would be sure to fire up the indignation and formidable organizing machinery of the social right.

Hillary Clinton

Hillary Clinton’s career trifecta of first lady, senator and secretary of state isn’t likely much consolation for being denied the presidency. How about adding Supreme Court justice to that resume? The Washington Post’s Emily Bazelon gives a ringing endorsement: “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.”

Cory Booker

This selection, admittedly, reflects my own sympathies. Being a post-racial African- American politician and former community organizer, Cory Booker would be almost too intuitive a choice for Obama. Following the high court’s ruling earlier this year to allow unfettered corporate cash to flow into elections, the president appears to want a justice with practical experience and a sense of accountability to ordinary people. Obama said on April 9 that he would look for a nominee with “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the lives of the American people.” Law professor Jonathan Zasloff trumpets Booker as “an extremely effective mayor: for the first time in decades, Newark went an entire month without a homicide, due in large part to Booker’s innovative law enforcement and community organizing strategies. He is extremely intelligent: a Rhodes Scholar and graduate of Yale Law School.”

Walter Dellinger

While his is not a name widely bandied about, I include Walter Dellinger because of his North Carolina connections: He’s a native of Charlotte, and a law professor on leave at Duke University. Some Triad residents may have had the opportunity to meet his son, Hampton Dellinger, at New Light Missionary Baptist Church in Greensboro during a 2008 Guilford County Unity Effort candidate forum when Dellinger the son was running for lieutenant governor. The father’s political experience includes acting solicitor general and head of the Office of Legal Council under President Clinton. While the aforementioned Doug Kmiec’s first pick would be litigator Carter G. Phillips, he writes, “If Phillips for some inexplicable reason didn’t jell, I would have the ebulliently intelligent, multiparty Walter Dellinger in my back pocket.”

Pam Karlan

Co-director of the Supreme Court Litigation Clinic at Stanford University and co-author of Keeping Faith With the Constitution, Pam Karlan would be the first lesbian to serve on the Supreme Court, and her nomination would likely touch off a second civil war in the United States. With a stint as assistant counsel for the NAACP Legal Defense Fund on her resume, Karlan’s progressive bona fides go far beyond being gag. Often described as the left’s answer to Antonin Scalia, Karlan is recommended by Slate.com editor Dahlia Lithwick, who cites her “crackling youth and brilliance and intellectual energy.”

Harold Koh

A legal advisor to the State Department, Harold Koh’s name comes up on quite a few lists, and two legal experts in Slate.com’s roundup offer recommendations. He would be the court’s first Asian American. He’s also somewhat of a wild card. The Washington Post’s Emily Bazelon writes, “The ridiculous claim made was that he had said — at an event at a country club in Greenwich, I’m not kidding — that he favored imposing sharia law in the US. This is false and made up.” Despite that apparent slander, Koh has won praise from some foreign policy hawks for saying — for real — in a speech, “A state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”

Bryan A. Stevenson

Stephen B. Bright of the Southern Center for Human Rights in Atlanta recommends Bryan A. Stevenson, executive director of the Equal Justice Initiative in Alabama, arguing that his nomination would “be a much-needed return to putting a great lawyer like Louis Brandeis or Thurgoood 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 across the nation and the impact it has on people.” This resonates with the president’s criteria that the next justice should have “a keen understanding of how the law affects the daily lives of the American people,” but Obama’s appointments have previously reflected a disdain for Southerners.

Charles Ogletree

A more likely bet for Obama would be Charles Ogletree, his mentor at Harvard Law School. Alan Dershowitz, Ogletree’s colleague at Harvard, describes him for Slate.com as “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.”

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