Potential Nominees

Fortunately, there are any number of individuals, hundreds if not thousands, who could serve ably, even with great distinction, on the Supreme Court. As Justice O'Connor remarked about her own selection, there is a considerable amount of luck involved in being selected. So much depends on what the president hopes to achieve and what he is willing to do politically to achieve it. What would you advise if you had the president's ear?

There is no protection from age discrimination in a Court nomination. Obama's first appointee, Sonia Sotomayor, was 55 when she became a justice. Were I president, I wouldn't want to go any older than that. Certainly the Republican presidents did not. Alito was 55, Kennedy was 51, Roberts and Scalia were 50, and Thomas was 43. Four of the individuals prominently mentioned in the media as possible nominees are over 55: Diane Wood, a 59-year old judge in the Seventh Circuit; Merrick Garland, a 57-year old judge from the D.C. Circuit; Kim Wardlaw, a soon-to-be 56-year old judge on the 9th Circuit, and Eric Holder, the 59-year old attorney general.

• Elena Kagan, 50-year old solicitor general of the U.S., a University of Chicago law professor from 1991 to 1995 before moving into the Clinton administration as associate White House counsel, former dean of the Harvard Law School before being tapped by Obama for solicitor-general
• Jennifer Granholm, 51-year old Canadian-born governor of Michigan, nearing the end of her second term, former federal prosecutor and attorney general of Michigan
• Deval Patrick, African-American governor of Massachusetts who will turn 54 this summer, extensive corporate law experience and assistant attorney general in the Clinton administration
• Janet Napolitano, former Arizona governor and current secretary of Homeland Security who will be 53 this year, former Arizona attorney general and U.S. attorney

Clearly there are others than these eight who can and will be mentioned. For example, the president could go bold with the choice of Pamela Karlan, a 51-year old Stanford law professor whom the New York Times has described as "Antonin Scalia for the left." There are undoubtedly some male judges, other than Garland, whose names will surface.

Update

The list provided above pretty well covered thos given serious looks by the Obama team, less perhaps Wardlaw, Holder, and Patrick. As one indicator of a broader search, a Ninth Circuit judge was added to the short list: Sidney Thomas, a 56-year-old Montana native and graduate of the University of Montana Law School. Had his name surfaced earlier, I would have grouped him with those over 55 (he turns 57 in August), those whose time may well have passed them by for a Supreme Court appointment.

Created on May 6, 2010, by GW