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Who Should Replace Justice Stevens?

Publication Date: 
April 10, 2010
Emily Bazelon and Dahlia Lithwick

Professors Pamela Karlan and Kathleen Sullivan are mentioned here as potential candidates to the U.S. Supreme Court. Emily Bazelon and Dahlia Lithwick of Slate Magazine filed this story:

Justice John Paul Stevens has announced his plans to retire. Let the shortlist parlor game begin. Of course, it already has. The three names that the White House has been bandying about to reporters are Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit, Solicitor General Elena Kagan, and Judge Merrick Garland of the D.C. Circuit Court of Appeals. We asked some of our favorite legal friends to weigh in with their less-obvious choices. Here are their answers so far, and we'll add more as they come in. Tell us your own choices in the comments, and we'll round those up, too. Here's Slate's shortlist from last year, when the winner was Justice Sonia Sotomayor.


Pam Karlan, Kathleen Sullivan, Deval Patrick, Cass Sunstein
At risk of compromised objectivity, I will suggest two of my own colleagues at Stanford, Pam Karlan and Kathleen Sullivan, both accomplished Supreme Court litigators, highly influential scholars of Constitutional law and uncannily perceptive and energetic interlocutors. If you want an antidote to the "umpire calling balls and strikes" nonsense that has passed for jurisprudence recently, read Karlan's book Keeping Faith With the Constitution. If you want to see a model of the judicial temperament in action, listen to almost any argument or lecture Kathleen Sullivan gives.

Deval Patrick, Massachusetts governor and former assistant attorney general for civil rights. It would be a welcome departure from recent practice to have a former elected official on the bench and Patrick also has experience in business on the board of United Airlines, and in private legal practice. He has been an effective and innovative executive and a strong advocate for social justice. Patrick's range of experiences and skills would add a great deal to the high court. Bonus: an African-American voice on the court other than that of Clarence Thomas.

Cass Sunstein, Harvard Law School professor and Obama's head of the Office of Information and Regulatory Affairs. Yes, he has the longest paper trail of any nominee since Robert Bork; and yes, the extreme right will go ballistic. Who cares? Sunstein is someone any sensible conservative should embrace. He has been an eloquent advocate of judicial moderation and as a scholar he has consistently put good judgment and sound methodology above ideology. He has written broadly and convincingly on a wide range of the most important issues facing the country and he has developed a nuanced and compelling political philosophy and theory of constitutional and statutory interpretation.
—Richard Thompson Ford, Stanford Law School professor


Pam Karlan
I've been saying for some time now that I believe Pam Karlan is truly in possession of a once-in-a-lifetime legal mind. Through her work at Stanford's Supreme Court Litigation Clinic, she's had the kind of experience on the defense side that is really lacking at the court. At 51, she has served as assistant counsel at the NAACP Legal Defense and Educational Fund, authored three leading casebooks on constitutional law, and worked tirelessly to articulate and defend a principled liberal view of the constitution. I really do believe that nobody else talks like Karlan, thinks like Karlan, or brings the kind of crackling youth and brilliance and intellectual energy I'd frankly pay to see on the left side of the high court.
—Dahlia Lithwick, Slate senior editor


Jeffrey Fisher
In the spirit of an off-beat list, my vote goes to 40-year-old Jeffrey Fisher, co-director of Stanford Law School's Supreme Court litigation clinic. He has the temperament, track record, consensus-building skills, and life expectancy to make him a formidable nominee. Wildly accomplished for his years, Fisher is already considered one of the most influential lawyers in the country. Charmingly, he also served as a clerk for Justice Stevens. As a litigator, Fisher has compiled an astonishing string of high court victories, in part because of his impressive ability to persuade Justice Scalia to side with criminal defendants. That skill alone would make him a formidable presence on the court. Moreover, having never been a judge, (before joining the Stanford faculty, Fisher worked at the well-regarded law firm of Davis-Wright Tremaine), his paper trail is mostly academic. The big strike against him is age. Then again, in 1811, James Madison swore in Associate Justice Joseph Story. His age at the time: 32.
—David Feige is a lawyer and creator of the TNT series Raising the Bar as well as the former trial chief of the Bronx Defenders.