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The Next Justice

Publication Date: 
April 05, 2010
Source: 
The Washington Post
Author: 
Dylan Matthews

Professors Pamela Karlan and Kathleen Sullivan are mentioned in The Washington Post as potential candidates for the U.S. Supreme Court if Justice John Paul Stevens decides to retire. Dylan Matthews reports:

With John Paul Stevens expected to retire within a month, the shortlist for Obama's next Supreme Court pick seems to have already narrowed to three: Solicitor General Elena Kagan, Diane Wood of the Seventh Circuit Court of Appeals and Merrick Garland of the D.C. Circuit. All would be good nominees. Wood would be my preference, given as she is the clearest of the three in calling for the Constitution to be interpreted in historical context and in a way that allows for the provision of unwritten rights. Kagan is a bit too fond of executive power, which is something I'm sure presidents look for in prospective solicitors general but is an unfortunate quality for a justice, but on other issues she's fine. Garland is less overtly liberal than either Wood or Kagan, but his record is generally solid, especially in a case where he ruled that a Guantanamo detainee could not be classified as an enemy combatant.

That being said, the fact that the field has closed this quickly is dispiriting. Given that Ruth Bader Ginsberg is the only justice other than Stevens expected to retire soon, Obama will likely not be able to replace a moderate or conservative justice. If he picks moderate liberals, he'll have a holding pattern but little more. The court won't move rightward, but the liberal bloc won't gain significantly. There are two ways around this. Obama could appoint a real William Brennan/Thurgood Marshall style liberal to the Court. This is a style of justice that has gone extinct in recent decades; for example, while the court's current liberals all support Roe v. Wade, Brennan and Marshall believed that Constitution required the government to fund abortions for the poor. A nominee like Pam Karlan or Kathleen Sullivan would be closer to this mold, and could move the court's center significantly leftward.