BY CHRIS SZABLA
Barely hours had passed after Justice John Paul Stevens’ announcement of his imminent retirement last Friday – widely anticipated after the 89 year old Supreme Court judge failed to hire the customary number of clerks for the court’s next session – speculation began to swirl about a number of frontrunners to replace him on the bench – many, if not most, with Harvard Law School pedigrees. Foremost among them was former Dean Elena Kagan ’86, now serving as Solicitor General. Not long after, however, Bloomberg News confirmed that another recent Harvard Law School Dean, Martha Minow, was also being seriously considered for a Supreme Court seat.
Kagan, Seventh Circuit Judge Diane Wood, and D.C. Circuit Judge Merrick Garland ’77 are widely seen as President Barack Obama ’91’s top choices for the position, but the confirmation that Minow’s name is on the president’s shortlist leads credence to the possibility she may also be chosen. Tom Goldstein, a Supreme Court litigator who runs SCOTUSblog, told the Harvard Law Record that he believes Kagan is Obama’s top choice, but that Minow was also likely to be very close to nomination.
On Tuesday, the Associated Press was able to confirm that seven names were definitely on the White House shortlist, including Kagan, Wood, Garland, Michigan Governor Jennifer Granholm ’87, Homeland Security Secretary Janet Napolitano, Georgia Supreme Court Justice Leah Ward Sears, and 9th Circuit Judge Sidney Thomas, who was suggested by Senator Max Baucus for the diversity in geographic and educational background the Montana-raised judge would bring to the court.
Baucus and several Democratic Senators spoke out against naming another Ivy League-educated justice, noting that, with the exception of Stevens, all eight remaining current justices had attended either Harvard or Yale Law Schools (Justice Ginsberg graduated from Columbia Law School after transferring from Harvard before her third year). The Senators went so far as to say that the recent outcome in Citizens United v. Federal Election Commission, which allowed corporations to directly support advertising for political campaigns, was a product of justices whose backgrounds put them out of touch with ordinary Americans.
That might have come as a surprise to several of the current justices whose youths were hardly privileged, but quite a few other prominent names mentioned as possibilities for the court held Harvard Law degrees or connections to the school, including Massachusetts Governor Deval Patrick ’82, who said he would prefer to fight for reelection this year, and HLS professor and TARP overseer Elizabeth Warren, who is popular for her public stance on consumer protection. Obama also faces pressure to name a justice who is not currently serving as an appeals court judge, as all eight remaining justices had prior to joining the Court.
Among the competing pressures weighing on the president are potential concerns not only about age, experience, and race, which are always factors that weigh on the names floated to the press as much as in the choice for nomination itself, but over whether he should spend political capital fighting for a justice who embraces liberal ideals or instead favor a candidate who will sail smoothly through confirmation hearings.
Kagan has left little trace of her potential legal philosophy, a fact which helped her win approval from the Senate last year, when she was confirmed as Solicitor General. She has also expected to encounter relatively little opposition from Republicans impressed with her efforts to overcome the ideological divide among the faculty at HLS and appoint conservative professors such as Jack Goldsmith. But civil liberties writer Glenn Greenwald of Salon.com has led the charge that Kagan, while presumably to the left of the conservative justices, would nonetheless be a less reliable liberal than Stevens, and that her selection would shift the court to the right.
Assessing Minow’s chances, the Boston Globe also emphasized her personal ties to Obama, noting that she first identified and encouraged his potential in public service and that her father, Newton Minow, served as Obama’s mentor at the former’s Chicago law firm. A spokesman for the dean told the Globe that she was “deeply honored to be considered” for the position.