Vikram David Amar

President Obama's Pick to Fill Justice Stevens's Seat: The Valid -- and Wrong-Headed -- Considerations Regarding the President's Choice

By VIKRAM DAVID AMAR

Friday, May 7, 2010

Even as he is overseeing the nation's response to the Times Square car-bomb attempt of last weekend, and managing the environmental and economic fallout (and criticism of the federal government) arising out of the ongoing British Petroleum oil spill in the Gulf of Mexico, President Obama is also no doubt nearing the end of his process to select a replacement for retiring Supreme Court Justice John Paul Stevens.

In this column, I offer thoughts on some considerations that may (and I think should) be on the President's mind as he settles on a nominee. Many of these considerations can cut in different directions; the selection process involves -- as do many aspects of governing -- balancing competing objectives.

The Longer View:  The Congressional Election Campaign

First, the President might reasonably be looking at the Stevens replacement process with an eye to the longer view.   One aspect of that longer view involves the fall Congressional election campaign, of which the Senate confirmation hearings may be seen as the kickoff. 

Given the intensely partisan debate and vote in Congress over healthcare reform this spring, and the President's seeming desire to maintain his credibility as someone who is interested in reaching across the aisle, he might wish to avoid a nominee who attracts no Republican votes at all in the Senate. 

A filibuster attempt is unlikely -- it would be hard for a minority party to deny a President (even one whose approval rate is low) a floor vote on his high Court nominee, especially when the Court might otherwise be understaffed.  Nonetheless, President Obama may want his nominee to pick up as many Republican votes as did Justice Sonia Sotomayor last year (nine), or at least as many Democratic votes as Justice Samuel Alito picked up in 2006 (four).   (It is easy to forget, given the current hyper-partisan mood, that as recently as 2005, Chief Justice John Roberts was able to garner 22 Democratic votes, fully half of the 44 Democrats then in the Senate.)

This desire to appeal to at least a handful of Republicans might, in part, explain why D.C. Circuit Court Judge Merrick Garland is prominent on many reported short lists; the high regard that prominent Republican Senator Orin Hatch has for Garland is touted as one of his strengths as a candidate.  Picking up Republican Senators might also be part of the reason that Sidney Thomas of the Ninth Circuit has emerged as a credible candidate.  Judge Thomas may be seen by some to have drawbacks:  His voting record is not particularly well known, he is from the pilloried Ninth Circuit, and he was heavily involved in a very controversial decision to temporarily block California's gubernatorial recall election in 2003 (a decision that the Ninth Circuit sitting as a whole promptly repudiated 11-0).   But more important might be the fact that, by all accounts, Judge Thomas is someone who works well with, and enjoys the esteem of, many Republicans as well as Democrats, both on and off the bench.

On the other hand, it's possible that the present, post-health-care-legislation mood in D.C. means that Republicans will not be open to anyone the President might nominate.  If so,   Obama's taking the longer view includes his recognizing the possibility that the Senate may no longer be in Democratic hands after this year, and that this may be the last nominee to the Court the President can be reasonably assured will ultimately be confirmed.

One Possible Consideration for President Obama:  Gender Diversity

The mention of Garland and Thomas -- both white males -- brings up another aspect of the longer-term view, and another possible factor on the President's mind:  demographic diversity.  Let's start with gender diversity. 

Some might argue that since the President picked a woman last year (in Justice Sotomayor), he need not consider gender diversity this time around.  I see it somewhat differently.  

Granted, with two women sitting as Justices, the President is not under nearly as much pressure to pick a woman as he was a year ago.   But if he doesn't choose a woman now, and if (as seems quite plausible) Ruth Bader Ginsburg is the next (and final) Justice to depart during Obama's Presidency, then the President will be under tremendous pressure to pick a woman to replace Justice Ginsburg, in order to prevent backsliding to a point where the Court has only one female (in a country where half the newly-minted lawyers are women). 

I think it's likely there are some great male Court prospects in their 40s who are currently a tad unripe to be Justices.   I also know it to be the case that President Obama has great women on his short list who can serve right now.   If I'm right on both counts, then the President will maximize his long-term flexibility if he picks an able woman this summer, freeing him up in the next few years to, if he wants, at least seriously consider going with one of the up-and-coming men currently on his radar screen. 

Another Possible Consideration for Obama – But a Dubious One:  Law School Diversity

Although I am a proponent of diversity on the Court, I do not think that the President should, as some have urged him to do, look to diversify the range of law schools represented among the justices.

It is often noted that Justice Stevens is the only non-Ivy-League law graduate on the Court, and some commentators have argued that having more alums from schools other than Yale and Harvard would be a good thing.  (Of the eight Justices besides Stevens, Ruth Bader Ginsburg is the only one who graduated from a school other than Yale or Harvard, and she received her law degree from Columbia, which is a somewhat similar institution.  Moreover, Ginsburg actually began her legal education at Harvard, and transferred to Columbia for personal reasons.)

I am certainly the first one to say that there are many superb law schools outside New England.   (I teach at one in the University of California system). But intellectual diversity does not require that justices have graduated from schools throughout the country.

There is a reason why Yale and Harvard are the schools of choice for the majority of people who get in; these two are the leading institutions of legal learning. Nor do they have tightly defined ideological schools of thought, such that their graduates are well-versed in only one kind of legal analysis.

What's more, these two schools themselves draw from a wide geographical and socio-economic swath of the nation; consider the court's last three newcomers, Roberts, Alito and Sotomayor -- all graduates of Harvard or Yale law schools, but hailing from very different backgrounds in Indiana, New Jersey and New York, respectively.  Experience with different parts of the country (and the different social and legal issues that arise in different regions) might be a plus in a candidate in a Court, but Justices can have varied geographical experiences both before and after law school.

None of this is to say that graduates from schools throughout the country ought not to be considered.  My only suggestion here is that it would not be wise to give prospects from Yale and Harvard a "minus" in their candidacies simply because the current members of the Court attended one of the country's recognized leading institutions of legal learning.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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