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The Court In A Second Obama Term

Publication Date: 
February 14, 2012
Tom Goldstein

Professors Pamela S. Karlan and Kathleen Sullivan were both mentioned by Tom Goldstein of SCOTUSblog in his list of successful lawyers on the far left of the political spectrum that were surprisingly not nonimated to the Court by President Obama.

A favorite topic of mine has always been potential nominations to the Court, both as to who might be picked and whether the nomination will or won’t succeed. But trying to prognosticate a few months ahead of a retirement is too simple; it is time to try several years out. This is the first in a series of posts about what would likely happen to the Court’s composition in the next Administration.

In the modern era, incumbent Presidents tend to be re-elected. George W. Bush, Bill Clinton, and Ronald Reagan were, though George H.W. Bush and Jimmy Carter were not. The economy is also ticking up. So my first post will work from the assumption that President Obama will get a second term. (Given the depth of that analysis, you can tell that this is a blog about the Supreme Court, not about electoral politics.)


The most striking thing about the list of qualifications (a) to (g) is the absence of an (h): strong ideology. Certainly, any nominee of President Obama is going to be on the left. But the most liberal potential nominees aren’t even a serious part of the discussion. Pam Karlan is just one of a dozen examples of prominent female lawyers who are very liberal but were never appointed to judgeships or significant jobs in the Administration, and therefore were not positioned for later elevation. (The same is true for very liberal men; the nomination of Goodwin Liu is something of an illusion, given that the Administration did not invest the significant resources that would have been required to confirm him.) That is in stark contrast to recent Republican administrations, which have worked much harder to position leading young, strong conservative lawyers in important positions.


Also, credentials can change, so new candidates can obviously emerge over the next three years. Appointments in the first year of a second Obama term in particular could provide additional potential nominees. That would be true if any of the district judges mentioned above were elevated to appellate seats. Also, in my opinion, four possible academics could be considered seriously after an intervening judicial appointment (though, as discussed, some are implausible given that the Administration has not shown much interest in making significant appointments from the far left): Heather Gerken (42), Yale Law School; Pamela Karlan (54), Stanford Law School; Carol Steiker (51), Harvard Law School; and Kathleen Sullivan (56), Stanford Law School.