Video Interview: Discussing What to Expect from the Supreme Court During Obama's Second Term with LXBN TV

Late last week, I had the opportunity to speak with Colin O'Keefe of LXBN regarding what a second term for President Obama means for the Supreme Court. In the brief interview, I offer my thoughts on how the makeup of the court may change and what issues they may address. 

How Well Are Senate Confirmation Hearings Working?

Earlier this week, we discussed “advice and consent.”  Can Senators legitimately ask a Supreme Court nominee about a hot button issue and expect a direct answer? Do Senators have the right to vote up or down on a particular nominee for purely political reasons?

Now we turn from the question of what the confirmation process should be to the issue of how the process operates in practice. Is the widely held view that hearings have become a substance-free charade in the years since the Bork nomination supported by the evidence? What subjects are Senators asking about, and are white, male nominees treated differently from women and African-American nominees? Two timely studies attempt to shed some light on these questions.

Professors Dian Farganis and Justin Wedeking, of Elon University and the University of Kentucky, respectively, focus on how responsive nominees are to Senators’ questions in their study, No Hints, No Forecasts, No Previews: Analyzing Supreme Court Nominee Evasiveness, 1955-2009.  Farganis and Wedeking reviewed the transcripts of every Supreme Court confirmation hearing since 1955 (Justice John Harlan), coding the type of question asked, the responsiveness of the nominee’s answer, and the reasons given by the nominee for not answering more fully.

In general, the professors found that the popular model of nominees trying to avoid nearly all the Senators’ questions was not supported by the transcripts: they consistently ranked nominees’ answers as “very forthcoming” for between sixty and eighty percent of all questions.  They argue that the perception that hearings have become a multi-day exercise in nominees avoiding substantive responses is likely caused by two factors.

First, the professors found that the percentage of questions addressing nominees’ opinions and interpretations – especially of hot-button issues – has increased over time, and such viewpoint questions are more likely to be partially or fully evaded than factual questions.

Second, the researchers observed an increasing trend in recent years of nominees being more explicit about declining to answer a question, most often because they worry that a particular issue might come before the Court. This second trend is most famously illustrated by Justice Scalia’s reluctance to answer questions from Senators Strom Thurmond and Arlen Specter [pdf - pp. 33-34, 86]  during his 1986 confirmation hearing about whether he considered Marbury v. Madison to be settled law.

The second study, May It Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009comes from Professors Lori Ringhand and Paul Collins, of the University of Georgia Law School and the University of North Texas, respectively. Working from a database stretching back to the 1939 hearing for Justice Felix Frankfurter, Ringhand and Collins analyzed the topics addressed in the hearings. The results suggest that over the past seventy years, the hearings have had far more to do with politics and popular perceptions of the Court than they have with the Court’s actual day-to-day workload.

The biggest single group of substantive exchanges involved civil rights issues – race, gender and sexual orientation discrimination; freedom of speech and religion, and the right to privacy. Questions about nominees’ judicial philosophy occur less than half as often, and inquiries about statutory interpretation – what the Court spends much of its time doing – account for only about one percent of all exchanges. Interestingly, the study shows that Senators’ questioning of Judge Robert Bork was no more dominated by questions about his judicial philosophy than a number of other nominees’ hearings have been.

The researchers’ analysis of the impact of nominee race and gender on Senators’ examinations has received the most attention in the days since May It Please the Senate was posted, including from the New York Times the Volokh Conspiracy and PrawfsBlawg. According to the professors, minority candidates receive more questions about civil rights, judicial philosophy and criminal justice, and fewer about issues like federalism and statutory interpretation. Female nominees, on the other hand, receive fewer questions about civil rights, but more than men regarding judicial philosophy and federalism.

Both No Hints and May It Please the Senate are interesting reads, and important contributions to the study of politics’ impact on constitutional law. Many follow-up questions – some of which are mentioned in the studies themselves – suggest themselves for further research.

  • For example, Professors Ringhand and Collins break down their subject categories in the aggregate, arguing, for example that issues like abortion and the right to bear arms have not dominated the hearings; a similar breakdown along party lines might prove interesting.
  • Professors Farganis and Wedeking show that nominees’ evasiveness tends to increase in response to viewpoint questions, but it might be useful to analyze that data further by specific issues and sub-issues.
  • Both studies could throw additional light on the problems of twentieth and twenty-first century constitutional development by further analyzing their data with respect to the makeup of Congress at the time of each hearing, the party of the President, and the nature of the relationship between the Congress and the President.
  • Finally, it would be interesting to tie the professors’ results with respect to specific nominees back into the nominees’ performance on the Court, and the group dynamic of the Courts on which they served.

UPDATE: Professors Farganis and Wedeking have posted an update to their paper analyzing the responses given by Solicitor General Kagan to Senators' questions during her confirmation hearings.

So What Does "Advice and Consent" Mean Anyway?

Supreme Court confirmation hearings have come in for a lot of criticism in recent years. They’ve been called a “Kabuki Dance” and a process which has “take[n] on an air of vacuity and farce.”

Amid all the discussion of whether or not nominees have become more evasive recently – a subject we’ll address later in the week – an important question has gotten somewhat less attention in our ongoing national conversation. What does the Senate’s duty to give “advice and consent” mean anyway? Is a Senator entitled to ask a nominee about a hot-button issue – abortion, guns, the death penalty – and expect an answer? Is it legitimate for a Senator to vote against a nominee because of a perception that she’s too liberal or too conservative?

The “advice and consent” language arose out of a lengthy debate in the Constitutional Convention, the result of a compromise to a long-ending battle between those who wanted the Congress – or the Senate alone – to appoint judges, and other delegates who would have assigned that power exclusively to the President. Reviewing the evidence, it seems difficult to believe that a majority of the Convention supported a pro forma Senate role in confirming Supreme Court nominees.

Anyone arguing that the Senate should play only a deferential role faces an additional barrier. There’s considerable evidence that most seventeenth and eighteenth century rejections – including at least one, John Rutledge, by a Senate which counted several Founders among its members – were for political reasons.

The story begins with Edmund Randolph’s “Virginia Plan,” which proposed a “National Judiciary . . . to be chosen by the National Legislature.” A few days later, one of America’s first great lawyers, James Wilson, criticized the proposal for Congressional appointment, arguing that judges should be appointed exclusively by the Executive Branch. Benjamin Franklin suggested that the Convention might consider other methods of selecting judges, noting that in Scotland, lawyers picked the judiciary:

[T]he Lawyers . . . always selected the ablest of the profession in order to get rid of him, and share his practice (among themselves).

James Madison didn’t like either Congressional or Presidential appointment, and successfully moved to put the question aside for a while.

The following week, the Convention returned to the question. Madison argued that if the appointment power was given to the entire Congress, members would tend to appoint one of their own. He proposed that the Senate make the selection, and the Convention agreed.

In the days that followed, William Paterson of New Jersey proposed the “New Jersey Plan,” which would have allocated the power to appoint judges exclusively to the President, and Alexander Hamilton proposed a compromise – Presidential appointment, “subject to the approbation or rejection of the Senate.” But for the time being, the Convention held fast to the idea of appointments by the Senate.

There the matter rested for a month. In mid-July, Nathaniel Gorham of Massachusetts proposed a model rooted in his own state’s constitutional practice – appointment by the President, with the advice and consent of the Senate. Gorham almost immediately picked up an important ally – James Wilson, a prime proponent of Presidential appointment. Roger Sherman of Connecticut, a supporter of Congressional appointment, indicated that he might be willing to settle for advice-and-consent as well, but other delegates weren’t convinced. Ultimately, the whole matter was handed over to the Committee on Detail, which reported a draft in early August restoring Senate appointment.

By early September, there seems to have been some sentiment in the Convention for cutting back slightly on the Senate’s power. The Committee on Compromise presented its report, once more calling for Gorham’s plan – Presidential appointment, with the advice and consent of the Senate. James Wilson, who had earlier supported Gorham, back-tracked, arguing for Presidential appointment subject to the non-binding advice of a “Privy Council,” but Wilson’s proposal received little support, and the Committee on Compromise’s “advice and consent” appointments clause was adopted.

So if the Senate wasn’t intended to defer to the President’s choice, what is a reasonable test for a Senator to apply in deciding whether or not to support confirmation? Join us below the jump for the views of three prominent players in Solicitor General Kagan’s confirmation.

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Former Solicitor General Waxman Endorses Kagan Nomination

Last night, former Solicitor General Seth Waxman addressed the American Law Institute. He strongly endorsed the nomination of current Solicitor General Elena Kagan to the Supreme Court, stating that "It is and should be a foregone conclusion that she will be confirmed." Waxman told the members of having worked with Kagan in the weeks leading up to the reargument in Citizens United, the Court's decision striking down Federal limits on certain forms of corporate-financed electioneering, and being impressed with her brilliance.

Although many observers have suggested that Kagan's lack of judicial experience is a concern, Waxman noted that many of our greatest Supreme Court Justices came to the Court without appellate judging experience, including Robert Jackson, John Marshall Harlan and Earl Warren. Waxman argued that it was important for the Court to have members with the professional experience of learning from a broad cross-section of the country:

Elena Kagan's experience, although not judicial, will serve the country well.

Waxman also paid tribute to John Paul Stevens, the retiring Justice Kagan may replace. Describing Justice Stevens as a "consummate common law judge," Waxman said that arguing a case before him was both "a rare pleasure and a genuine terror." During his years on the Court, Waxman said that Justice Stevens has been an advocate of "judicial modesty," both substantive -- deference to the political branches, and reluctance to use the power to strike down statutes on constitutional grounds -- and procedural -- a cautious approach to choosing the questions the Court answers, and a strong preference for acting on the narrowest possible grounds.   According to former Solicitor General Waxman, judicial modesty "serves the structural balance that's essential to representative democracy."

On Monday, we reported on the remarks of Justice Stephen Breyer during the opening day of the ALI's meeting. Video of Justice Breyer's remarks is now available on the ALI's website, along with video from several additional speakers.

Solicitor General Elena Kagan Nominated for Supreme Court

This morning, President Obama announced that Solicitor General Elena Kagan is his nominee to succeed retiring Justice John Paul Stevens on the Supreme Court. The President had this to say about his nominee:

Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government.

The President praised Kagan’s “fair-mindedness and skill as a consensus-builder,” and noted that during her time as Solicitor General, “she has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence.”

In her remarks, Kagan called the Supreme Court “an extraordinary institution in the work it does and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law, and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice.”

She also spoke of her passion for the law:

Because law matters; because it keeps us safe; because it protects our most fundamental rights and freedoms; and because it is the foundation of our democracy.

The full text of President Obama’s and Solicitor General Kagan’s remarks are available at the White House website.

Reactions to the Kagan nomination are beginning to come in from the Senate, including three members of the Senate Judiciary Committee: Chairman Patrick LeahySenator Amy Klobuchar and Senator Orrin Hatch, as well as Senate Republican Leader Mitch McConnell.

Supreme Court Short List Down to One?

CBS News is reporting that President Obama will announce his nominee to replace retiring Supreme Court Justice John Paul Stevens on Monday morning.

In the weeks since Justice Stevens announced his retirement, the Appellate Strategist has profiled each of the short list candidates:

Solicitor General Elena Kagan

Judge Diane Wood of the U.S. Circuit Court of Appeals for the Seventh Circuit

Judge Merrick Garland of the U.S. Circuit Court of Appeals for the D.C. Circuit

Judge Sidney Thomas of the U.S. Circuit Court of Appeals for the Ninth Circuit

Justice Carlos Moreno of the California Supreme Court

Secretary Janet Napolitano of the Department of Homeland Security

Judge Kim McLane Wardlaw of the U.S. Circuit Court of Appeals for the Ninth Circuit

Leah Ward Sears, former Chief Justice of the Georgia Supreme Court

Supreme Court Short List Profiles: Judge Merrick Garland of the D.C. Circuit

Our series of profiles of potential nominees to replace retiring Supreme Court Justice John Paul Stevens continues with Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

Judge Garland’s credentials are impeccable.  An honors graduate of Harvard University and Harvard Law School, he clerked for Judge Henry Friendly of the Second Circuit and U.S. Supreme Court Justice, William Brennan.  He served as Special Assistant to the Attorney General of the United States from 1979 to 1981.  He then entered private practice with Arnold & Porter in Washington D.C.  In 1989 he returned to the Justice Department as an Assistant U.S. Attorney for the District of Columbia.  After three years, he returned to Arnold & Porter but in 1993 he returned once more to public service when he was appointed Deputy Assistant Attorney General in charge of the Criminal Division.  In this role he supervised a number of high profile cases such as the Oklahoma City bombing and the Unabomber case. It has been noted that Judge Garland’s background is very similar to that of Chief Justice Roberts.

President Clinton appointed Judge Garland to the D.C. Circuit in 1995.  His appointment was held up for political reasons.  Republican senators, then in the majority, had no issues with Judge Garland’s qualifications or judicial philosophy, but argued that the D.C. Circuit did not need additional judges in light of its case load.  Judge Garland was finally confirmed in 1997.

Judge Garland is widely recognized as an expert on antitrust and, particularly, administrative law.  Interestingly, in the 1980s Garland was involved in an academic debate over Cass Sunstein, currently Administrator of the White House Office of Information and Regulatory Affairs, and a person frequently mentioned as a potential Supreme Court candidate.  The subject of the debate was the scope and purpose of judicial review of administrative agencies.  Generally, Sunstein favored a “hard look” approach to agency decisions, scrutinizing them to assure that they had considered the interests of all relevant stakeholders.  Garland, by contrast, urged that the focus of review should not be so much upon representation but upon ensuring fidelity to the language and purpose of Congress. Other writings urge that the states be free to make policy choices and that federal regulations, particularly economic ones, should not preempt them.

The case load of the D.C. Circuit is atypical, with much of its business coming from the regulatory agencies.  Join us below the jump for a review of some of Judge Garland’s notable decisions.

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Supreme Court Short List Profiles: Judge Diane Wood of the 7th Circuit Court of Appeals

In the days following Justice John Paul Stevens’ announcement in April that he would step down from the Supreme Court, the speculative “short list” of candidates to replace him steadily lengthened. But one name that was mentioned almost immediately was Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit.

At age 59, Judge Wood presently sits on the Seventh Circuit Court of Appeals (nominated by President Clinton in 1995) and is a senior lecturer at the University of Chicago School of Law (where President Obama previously taught). She had been a top candidate for Justice Souter’s prior vacancy, and interviewed with President Obama before the position ultimately went to Judge (now Justice) Sotomayor.

Judge Wood graduated with high honors and Order of the Coif from the University of Texas School of Law in 1975. She clerked for Justice Harry Blackmun in 1976. If nominated and confirmed to the High Court, she would be the only seated Justice who did not attend Harvard or Yale law school.

Judge Wood is an expert on antitrust and trade law, and has authored several books and articles on those subjects. She has also written numerous articles on the topic of individual liberty, including a comprehensive review of Justice Blackmun’s constitutional jurisprudence on individual liberty and “the right to be let alone.”

  • "Justice Blackmun and Individual Rights.” 97 Dickinson Law Review 421 (1993).
  • “Sex Discrimination in Life and Law.” 1999 University of Chicago Legal Forum 1 (1999).
  • “The Bedrock of Individual Rights in Times of Natural Disasters.” 51 Howard Law Journal 747 (2008).
  • “Katrina and the Rule of Law in the Time of Crisis: Natural Disasters and the Rule of Law in the Time of Crisis: The Bedrock of Individual Rights in Times of Natural Disasters.” 51 Harvard Law Journal 747 (2008) (Wiley A. Branton/Howard Law Journal Symposium).
  • “The Rule of Law in Times of Stress.” 70 University of Chicago Law Review 455 (2003).
  • “Our 18th Century Constitution in the 21st Century World.” 80 New York University Law Review 1079 (2005).

Join us below the jump for some of Judge Wood's notable opinions:

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Supreme Court Short List Profiles: Janet Napolitano, Secretary of Homeland Security

Our series of profiles of possible Supreme Court nominees to replace the retiring Justice John Paul Stevens continues with the Secretary of Homeland Security, Janet Napolitano.

After finishing at the top of her class at Santa Clara University -- earning a Truman Scholarship and graduating summa cum laude with Phi Beta Kappa honors -- Napolitano attended the University of Virginia Law School. After clerking for Ninth Circuit Judge Mary Schroeder, Napolitano began ten years in private practice in Phoenix. While in private practice, Napolitano was part of the team representing Anita Hill in connection with her testimony at Justice Clarence Thomas' confirmation hearings. She also participated in the briefing in Air Line Pilots Ass'n v. O'Neill499 US 65 (1991), which involved the standards applicable to determining whether a union has breached its duty of fair representation.

Napolitano's public career began in 1993, when President Clinton appointed her United States Attorney for Arizona. During her five years in that position, she prosecuted over 6,000 immigration cases and made cross-border crime a priority. Napolitano also led the investigation of Michael Fortier in connection with the Oklahoma City bombing.

She was elected state Attorney General in 1998. During her four years in that position, she focused on consumer protection. A defender of the death penalty, Napolitano argued Ring v. Arizona, 536 US 584 (2002), where the Supreme Court held that permitting judges to determine the facts necessary to qualify a defendant for the death penalty violated the Sixth Amendment.

In 2002, Napolitano was narrowly elected Governor. In her first month, Napolitano proposed a budget eliminating a $1 billion budget surplus without tax increases. During her two terms, Napolitano:

  • Focused on immigration issues, ordering the National Guard to the Mexican border and significantly toughening sanctions on employers for hiring undocumented workers;
  • Promoted a prescription drug plan and improved care in long-term living facilities for seniors;
  • Championed education reform, including voluntary full-day kindergarten programs; and
  • Reformed the state's Child Protective Services.

When Napolitano proposed giving a children's book to every first-grader in Arizona, rather than funding the program through the state budget, she spent three years raising nearly a half-million dollars in private funds to make the program possible.

In 2005, Time named Napolitano one of America's Five Best Governors.  A year later, Napolitano was named by the White House Project as one of the eight women most likely to become the first female President.  Napolitano served as Chair of the National Governors Association from 2006 to 2007.  She was confirmed as the first woman Secretary of Homeland Security in January 2009. Secretary Napolitano's experience as a prosecutor and government official, dealing with the practical impact of the law on everyday lives, places her among the President's potential Supreme Court nominees from outside the realms of the Federal appellate courts and academia.

Supreme Court Short List Profiles: Michigan Governor Jennifer M. Granholm

We continue our profiles of short-listed potential nominees to replace Justice John Paul Stevens with a non-judicial candidate, Jennifer M. Granholm, the current governor of Michigan.

As Jennifer M. Granholm is nearing the end of her second and last term as governor of Michigan, she is once again on a short list of possible candidates to replace a retiring U.S. Supreme Court justice.  If she serves on the high court, she would be the only current justice to have held a state wide political office, to have no previous judicial experience and would be the first former state governor to sit since Earl Warren retired in 1969, in addition to being the third female member of the court.

While Granholm was born in Vancouver, British Columbia, her family moved to California when she was a child. At 18, she became a U.S. citizen. She was an honors graduate of both the University of California at Berkeley and Harvard Law School, where she edited the Civil Rights and Civil Liberties Law Review. While at Harvard she wrote articles warning about the potential threat the civil liberties presented by an increasing surveillance society and by the lack of transparency and access to public information. After graduating law school in 1987, she and her husband moved to his native state of Michigan, where they eventually had three children.

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Supreme Court Short List Profiles: Former Georgia Chief Justice Leah Ward Sears

We continue our profiles of short-listed potential nominees with Leah Ward Sears, former Chief Justice of the Georgia Supreme Court.

Justice Sears was born in 1955 in Heidelberg, Germany, where her father served as a colonel in the Army.  Her family later settled in Savannah, Georgia, and she attended high school there.  She received her bachelor’s degree from Cornell University, J.D. from Emory University School of Law, and, later, an LLM from the University of Virginia Law School in 1995.  After graduating from law school she joined the Atlanta law firm of Alston & Bird. 

Five years later Atlanta Mayor Andrew Young appointed Sears to Atlanta’s City Traffic Court, and three years after that, in 1988, she was elected to the Superior Court of Fulton County, Georgia – the first African-American woman to hold this position in Georgia.  In 1992 Georgia governor Zell Miller appointed her to Georgia’s Supreme Court.  She was the first woman and the youngest judge (36) to sit on that court.  She became Chief Justice in 2005 and retired from the court in 2009 when her term as Chief Justice ended.  She is now with the law firm of Schiff Hardin, LLP, in Atlanta. 

Justice Sears was among those considered last year to replace Justice David Souter.

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Supreme Court Short List Profiles: Judge Sidney Thomas of the 9th Circuit Court of Appeals

Appellate Strategist’s continuing series of profiles of “short list” candidates to replace the retiring Justice John Paul Stevens continues with Judge Sidney Thomas of the 9th Circuit Court of Appeals.  Judge Thomas is notable for his relatively conventional professional path, and his geographic and educational roots.  Where many of the current Justices arrived at the Court from the East Coast, Judge Thomas hails from Billings, Montana.  Many Justices had backgrounds in public service before assuming the bench, but Judge Thomas toiled as a private litigator representing a diverse array of commercial interests before the Montana Supreme Court and the federal appellate courts.  And, if he joins the Court, he’d be the only non-Ivy Leaguer among the justices.

Judge Thomas was born in 1953 in Bozeman, Montana, and graduated from Montana State in 1975.  He went directly to law school at the University of Montana, graduating in 1978.  In private practice, he represented mineral rights interests in cases ranging from inverse condemnation to the validity of oil and gas leases, as well as employers in wrongful discharge cases, newspapers in defamation cases, and a national broadcast network in a constitutional challenge to a Montana statute.

While in private practice, Judge Thomas supported the campaign of Senator Max Baucus, D- Mont., who later recommended him for the 9th Circuit.  President Clinton nominated Judge Thomas, who was confirmed by the Senate without controversy in January, 1996.

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Supreme Court Short List Profiles: Solicitor General Elena Kagan

Since the days of Robert Bork, it has happened, sooner or later, to every Supreme Court nominee: the uncomfortable moment when a Senator quotes one of the nominee’s writings back to him or her, smiles across the Committee table, and says: “Explain that.”

If Solicitor General Elena Kagan is nominated to replace Justice John Paul Stevens on the Supreme Court next month, as observers like Tom Goldstein of SCOTUSBlog and Jeffrey Toobin of the New Yorker expect, here’s the quote she’ll be hearing:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.

Kagan wrote that in a 1995 book review for the University of Chicago Law Review. During her 2009 confirmation hearings, she addressed the issue this way: “I am also less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested. Yet that leaves the question just what these hearings should be about – what matters Senators should explore with the nominee and how the nominee should be evaluated. I confess to finding these questions very difficult.”

Kagan’s professional background is described in detail in the Background Questionnaire she completed for the Judiciary Committee in 2009. A native New Yorker, she received her undergraduate degree from Princeton and a Masters from Oxford. After graduating from Harvard Law School in 1986, she clerked for Judge Abner Mikva on the D.C. Circuit, and then for Thurgood Marshall at the U.S. Supreme Court. Between 1989 and 1991, Kagan was a junior associate at Williams & Connolly in Washington, handling a mix of commercial, First Amendment and white-collar criminal litigation.

Since that time, Kagan’s career has shuttled between academia and public service. She joined the faculty at the University of Chicago Law School in 1991, but left temporarily to serve at the request of now-Vice President Biden as Special Counsel to the Senate Judiciary Committee during the confirmation hearings for Justice Ginsburg in 1993. 

In 1995, she interrupted her academic career again to serve as Associate Counsel to the President, and later as Deputy Assistant to the President for Domestic Policy. After leaving the White House in 1999, she was a Visiting Professor at Harvard Law School, becoming a resident Professor in 2001 and Dean of the Law School in 2003. Kagan was nominated and confirmed as the first woman to serve as Solicitor General in 2009.

General Kagan’s Tenure as Solicitor General. Since Justice Stevens announced his retirement, there’s been considerable public discussion of Kagan as a potential nominee. Columnist Glenn Greenwald has expressed concerns about her substantive views, former Solicitor General Walter Dellinger and Tom Goldstein of SCOTUSBlog have defended her, and Greenwald has responded.

Although these columns have been largely concerned with policy, Kagan’s performance as Solicitor General has come in for some criticism as well. Writers in both Salon and the New York Times have been critical of Kagan’s tenure, and other columnists have quoted from, and linked to, those articles. However, these criticisms do not stand up to close analysis.

Join us below to jump to see why.

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Supreme Court Short List Profiles: Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals

As part of Appellate Strategist's ongoing evaluation of the “short list” of potential nominees to replace retiring Justice Stevens, we turn now to one of the nominees who was also on the short list to replace Justice Souter – Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals.

Judge Wardlaw is a California native, born in 1954 in San Francisco. She earned her undergraduate and law degrees at UCLA, graduating from law school in 1979. She clerked for the Hon. William P. Gray, U.S. District Court, Central District of California for two years, then worked in private practice as a litigator in Los Angeles from 1980-1995. Wardlaw worked on the Clinton-Gore Presidential Transition Team with the U.S. Department of Justice in 1992-1993, and later on the Mayoral Transition Committee for Los Angeles Mayor-elect Richard Riordan in 1993.

Wardlaw was nominated to the U.S. District Court, Central District of California, by President Clinton in 1995, and to the U.S. Court of Appeals for the Ninth Circuit in 1998. Both her confirmations were quick and unanimous. Such a history of bipartisan support might bode well for a future nomination.

Judge Wardlaw is often described as a moderate liberal or centrist, who would give the court greater diversity as the third female justice and the second Latina. She would also be the only non-Ivy League justice and offer extensive experience as a private litigator.

Join us below the jump for a review of notable Ninth Circuit opinions authored by Judge Wardlaw:

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Supreme Court Short List Profiles: Justice Carlos Moreno of the California Supreme Court

Appellate Strategist has posted several times in the last week about names being discussed as possible nominees to replace retiring Justice John Paul Stevens. But a list of names, however important, says little about the nominees. We therefore begin our series of short profiles of those whose names top the list. We begin with Carlos Moreno, an Associate Justice of the California Supreme Court.

The recipient of a B.A. in political science from Yale University (1970) and a 1975 J.D. from Stanford Law School, Carlos Moreno served in the Los Angeles City Attorney's Office, prosecuting criminal and civil consumer protection cases. In 1979, he joined a private firm, representing clients in general commercial litigation. He has a solid background as a trial judge, having served on the Los Angeles Superior Court and the U.S. District Court of Appeal, Central District of California. He was appointed to the California Supreme Court in 2001.

Moreno’s standing as a legal scholar is beyond dispute. He has a well-deserved reputation for integrity that cuts across ideological boundaries, and a good judicial temperament, though he has been known to politely but firmly challenge attorneys who make bald statements about legal propositions, often asking “what’s your authority for that, counsel?” (That is not a criticism, by the way.) He construes statutes as they are written, even if he disagrees with the underlying policy, subscribing to the (sometimes novel) view that that is a jurist’s job. His substantive specialties include criminal cases and arbitration.

Join us below the jump for a sampling of recent opinions he has authored.

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Will Justice Stevens' Retirement Make A Difference In The Supreme Court's Approach To Punitive Damages?

Justice John Paul Stevens has been tagged by many as a “liberal.” Appellate Strategist does not propose to debate that general proposition here. Rather, it’s time to begin assessing what effect his absence might have on the growing body of Supreme Court jurisprudence that has been cutting back, a little at a time, on the blockbuster punitive damages awards that so commonly make the headlines. Or at least used to make the headlines.

Here are a few thought-provoking tidbits concerning his role in the development of this important body of law: 

  • Justice Stevens pioneered the recent punitive damages jurisprudence, authoring two of the Court’s first forays into the constitutionality of the award amounts. The first was the “granddaddy” of them all, BMW, which blazed the trail. (BMW of No. Amer. v. Gore (1996) 517 U.S. 559.)  After that came Cooper, which created an unprecedented de novo standard of review of punitive awards for constitutional excessiveness. Appellate courts were no longer constrained by the trial judges’ decision re the propriety/excessiveness of the amount. Cooper gave courts of appeal a free hand to bring the excessive “outlier” verdicts into line. (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424.)
  • He joined in the Campbell majority opinion, the behemoth that expanded the defendant’s constitutional rights beyond a mere review for excessiveness of the amount. (State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408.)
  • He dissented in Williams. He still believed that due process imposes both substantive and procedural constraints on State power to impose punitive damages, but Williams presented a different issue. The majority held the State may not punish the defendant with punitive damages for harming other victims who were not plaintiffs and not before the jury. (Philip Morris USA v. Williams (2007) 549 U.S. 346.) Justice Stevens saw “no reason why an interest in punishing a wrongdoer ‛for harming persons who are not before the court,’ should not be taken into consideration when assessing the appropriate sanction for reprehensible conduct.” (Citation omitted.)
  • We discount the Court’s most recent decision, Exxon Shipping Co. v. Baker (2008) 128 S.Ct. 2605, which presented unique issues of punitive damages under federal maritime law, and anyway, there are so many separate opinions and joinders, it would take a computer program to keep the justices’ various positions straight.

These cases have revolutionized the law of punitive damages, helped level the once-tilted playing field, and afforded them relief – in the form of reduced awards – awards that a few years ago were often rubberstamped on appeal as within the jury’s discretion. Countless billions – literally – “billions” with a “b” – have been saved thanks to these legal developments. He clearly made an important contribution.

Now the burning question is: where will the successor stand? In a series of future posts, Appellate Strategist will try to explore that question, and perhaps even offer some answers.

The Supreme Court Short List Is Expanding

As Appellate Strategist reported a week ago, when Justice John Paul Stevens announced his retirement, most Supreme Court observers believed that the "short list" contained three names: Solicitor General Elena Kagan, Judge Diane Wood and Judge Merrick Garland. But even as the White House is suggesting that a nominee will be named in early May, it appears that the "short list" is growing longer.

CNN reports that Judge Sidney Thomas of the Ninth Circuit is under consideration as a possible nominee.  Judge Thomas was in private practice in his native Montana before he was nominated to the Ninth Circuit by President Clinton. He has served on the Ninth Circuit since 1996.

According to ABC News, Leah Ward Sears, former Chief Justice of the Georgia Supreme Court,  is on the President's short list as well. Justice Sears was appointed to the Georgia Supreme Court in 1992, and was sworn in as Chief Justice in 2005.  She retired from the court in 2009, and is now in private practice.

The Boston Globe is reporting that Professor Martha Minow, the Dean of Harvard Law School, is another possible nominee. Professor Minow has written extensively on human rights law.  She has taught at Harvard Law School since 1981.

Two New Candidates for SCOTUS Nomination Emerge

According to the San Francisco Chronicle, two new candidates have emerged as possible Supreme Court nominees to replace retiring Justice John Paul Stevens. 

Justice Carlos Moreno of the California Supreme Court began his career as a deputy city attorney in Los Angeles.  Justice Moreno received his first two judicial nominations from Republican Governors George Deukmejian and Pete Wilson. In 1998, he was appointed to the United States District Court by President Clinton. In 2001, he was appointed to the California Supreme Court by Democratic Governor Gray Davis.

Judge Kim McLane Wardlaw of the Ninth Circuit was in private practice until 1995. She was appointed to the United States District Court by President Clinton in 1995, and elevated to the Ninth Circuit in 1998.

Replacing Justice Stevens By the First Monday in October

President Obama made a statement this afternoon, suggesting that he would nominate a replacement for retiring Justice John Paul Stevens within "weeks." In describing his ideal nominee, the President suggested that he would be looking for someone who agreed with Stevens' spirited dissent in Citizens United v. FEC:

I will seek someone in the coming weeks with similar qualities -- 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 daily lives of the American people.  It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. 

Senator Patrick Leahy, the chair of the Senate Judiciary Committee, said today that he expected to have hearings on the President's Supreme Court nominee this summer.  Meanwhile, Newsweek is reporting that Secretary of Homeland Security Janet Napolitano is on the short list for the vacancy, along with Solicitor General Elena Kagan, Judge Diane Wood and Judge Merrick Garland.

Reaction to Stevens' announcement continues in Washington.  Vice President Joseph Biden issued a statement.  Tony Mauro at The Legal Times has the statements of the other Justices, plus retired Justices O'Connor and Souter. The Ninth Justice, the National Journal's new blog on the Supreme Court vacancy, has reactions from many more Senators.

Supreme Court Justice John Paul Stevens To Retire This Summer

The New York Times and CNN are reporting that Justice John Paul Stevens will retire when the Court reaches the end of its term in June.  The Appellate Strategist will post further information on the story as President Obama's search for a successor shifts into high gear.

UPDATE: The Supreme Court has posted a copy of Justice Stevens' retirement letter [pdf].  As Douglas Berman points out over at Sentencing Law and Policy, Justice Stevens has increased pressure on the Senate to confirm a replacement quickly by making his retirement effective when the Court rises for the summer, not when his replacement is confirmed and sworn in.  Tony Mauro at The Legal Times  has reactions from members of the Senate and Chief Justice Roberts' statement.

The Short List For a Supreme Court Vacancy

Within the past several weeks, Supreme Court Justice John Paul Stevens has dropped several hints that he might be about to announce his retirement.   Even though nothing’s definite yet, the news media and the legal blogs are busy speculating about possible replacements. Here’s the roundup – both the “short list” and some of the long shots:

According to The Washington Post’s blog, The Swamp, Jess Bravin of The Wall Street Journal  and Mark Sherman at The Associated Press, there are only three names on the list:

  • Solicitor General Elena Kagan, the former Dean of Harvard Law School,  who has served as Solicitor General since 2009;
  • Judge Diane Wood of the Seventh Circuit.  Before her appointment, Judge Wood was Deputy Assistant Attorney General in the Antitrust Division of the Justice Department; and
  • Judge Merrick Garland of the D.C. Circuit. Judge Garland was Principal Associate Deputy Attorney General under President Clinton before his elevation to the Court of Appeals.

Kevin Rudin of National Public Radio lists General Kagan and Judges Wood and Garland as the front-runners, but suggests two intriguing possibilities:

Tom Goldstein of SCOTUSBlog writes that there is only one real candidate: General Kagan. Nevertheless, he handicaps a number of additional possibilities in addition to Judges Wood and Garland and Governor Granholm:

  • Secretary of State Hillary Clinton;
  • Professor Cass R. Sunstein, who is Felix Frankfurter Professor of Law at Harvard, and currently serves as Administrator of the Office of Management and Budget Office of Information and Regulatory Affairs;
  • Attorney General Eric Holder;
  • Governor Deval Patrick of Massachusetts. Governor Patrick served as Assistant Attorney General for the Civil Rights Division in the Clinton Justice Department. From 2000 through 2004, he was General Counsel and Executive Vice President of Coca-Cola; and
  • Senator Amy Klobuchar of Minnesota.  Senator Klobuchar served as a county prosecutor for several years and later was in private practice.

At the New York Times, Peter Baker lists a number of these candidates and adds four new ones:

  • Professor Harold Koh, former Dean of Yale Law School, where he specialized in international law, and now the Legal Adviser to the State Department;
  • Professor Pamela S. Karlan of Stanford, who specializes in voting rights and the political process;
  • Senator Richard Durbin of Illinois, who was both in private practice for a number of years before his election to Congress in 1983; and
  • Senator Claire McCaskill of Missouri, who was a long-time local prosecutor before her election as state Auditor.

Finally, Law 360 interviewed appellate specialists from leading firms around the country, asking them to complete this sentence: “If I were Obama, My Supreme Court Pick Would Be . . ."

The results were interesting and – with the exception of General Kagan’s six votes – showed little overlap with the list of candidates discussed above. Aside from Professor Kathleen Sullivan of Stanford Law School, an authority on constitutional law who was prominently mentioned last year when Justice Souter retired, the only new candidate receiving more than one nomination was the person I suggested:

"In nominating a successor to Justice John Paul Stevens, President Obama should seek not only a brilliant lawyer, but someone who would bring a breadth of real-world experience to a Court which today consists of nine former judges from the Federal Circuits.  Through most of the twentieth century, Supreme Court nominees were frequently drawn from outside the Federal appellate courts, including Congress, the Cabinet and the private bar.  President Obama should revive that tradition by nominating Senator Sheldon Whitehouse of Rhode Island.

Over the next decade, the Supreme Court will likely face a range of important issues in criminal law, including Federal sentencing, the death penalty, habeas corpus and issues arising from the Government’s anti-terrorism efforts.  Senator Whitehouse would bring an important perspective to these issues, having served as both a United States Attorney and as his state’s Attorney General before his election to the Senate, as well as serving on the Judiciary Committee and the Select Committee on Intelligence in the Senate.

In addition, the Court will certainly be asked over the next several years to define the parameters of its recent landmark cases impacting both the legislative and political process, such as Heller v. District of Columbia and Citizens United v. FEC.  Having served in both the state and Federal government, Senator Whitehouse would bring a deep understanding of those worlds, far removed from the judiciary, to the Court’s debates.

In his four years in the Senate, Senator Whitehouse has demonstrated not only that he has a keen legal mind, but has shown himself to be an incisive, aggressive investigator in Senate committee rooms.  Two of the finest twentieth-century Justices -- Hugo Black and Earl Warren -- held political office before joining the Court.  President Obama should elevate another: Senator Sheldon Whitehouse."