Choose Your Own Supreme Court Justice
Out of our Top 20, whom do you like best?
Updated Wednesday, May 6, 2009, at 1:17 PM
Slate wants to hear from you on whom Barack Obama should nominate to replace Supreme Court Justice David Souter, who will retire at the end of this year's term. Below is our handpicked list of leading candidates for the job, which you can further filter by age and gender using the buttons on the left. To cast your vote, click on the name and then click "Nominate" at the bottom of the candidate's profile to send us an e-mail. Please write a few words about why you're choosing your pick as well. (Comments may be quoted by name unless you specify otherwise.)
Sonia Sotomayor, 54, is so far at the top of most shortlists, she is arguably a shortlist unto herself. A summa cum laude graduate of Princeton with a law degree from Yale, she'd be the first Hispanic justice (depending on how you count Benjamin Cardozo). She is reportedly Catholic (she went to Cardinal Spellman High School in the Bronx), which would make her the sixth Catholic on the Supreme Court. Sotomayor grew up in the Bronx in a housing project, and at age 8 she was diagnosed with diabetes. Her father, a manual laborer, died when she was 9. She was appointed to the U. S. District Court for the Southern District of New York in 1992 by President George H.W. Bush, and Bill Clinton elevated her to the United States Court of Appeals for the 2nd Circuit in 1998. She is seen by most as a fairly moderate jurist, although Sotomayor is famous for being outspoken and quite brash on the bench, a quality for which she is now being criticized.
Notable cases: Sotomayor is responsible for the opinion that ended the Major League Baseball players strike when, in 1995, she issued an injunction against MLB owners and for an order allowing the Wall Street Journal to publish Vince Foster's suicide note. She ruled against the government in a case involving the Hells Angels. Last year, she was on a panel that ruled against a high-school student punished for posting an objectionable message on an Internet site. One of her more controversial moves was a ruling last year in a New Haven, Conn., affirmative action case that allowed the city to scuttle the results of a firefighter promotions test because no African-Americans could pass the test. Not only was the opinion controversial on its face, but it was less than one page long and seemed to duck the hard issues, prompting a strong call by 2nd Circuit Judge Jose Cabranes for the Supreme Court to hear the case—as the justices did at the end of April.
Jennifer Granholm, 50, the current governor of Michigan, has no experience on the bench—which, as the Detroit News noted, would make her the first nonjudge to reach the court since William Rehnquist and Lewis Powell in 1972. Since she was born in Vancouver, she would also be the first foreign-born justice since Felix Frankfurter, who joined the court in 1939.
Granholm does not have an extended record from which to draw conclusions about her judicial philosophy. After graduating from Harvard Law in 1987, Granholm clerked for 6th Circuit Court of Appeals Judge Damon Keith, who is credited with desegregating Pontiac and pushing back against the Nixon administration on wiretapping. (Granholm still considers Keith a mentor.) Granholm served as an assistant U.S. attorney in the Eastern District of Michigan for four years before being elected governor. She was re-elected governor in 2006 but is limited to two terms in office.
Notable cases: As a prosecutor, Granholm's most newsworthy case involved the theft of nearly 49,000 copies of the movie Fantasia. As attorney general, much of her focus was on consumer protection and high-tech crimes like identity theft. As governor, she has been preoccupied by budget fights with the state legislature because of Michigan's massive deficit.
Elena Kagan, 49, is also at the top of most shortlists, and we know she's confirmable because she was just confirmed as the first female solicitor general of the United States, the only federal official required by statute to be "learned in the law." Kagan has a J.D. from Harvard Law School, where she was supervising editor of the law review. While Kagan has never argued a case before the court—her lack of Supreme Court experience led to a tense confirmation on a 61-31 vote—she did serve as clerk to Thurgood Marshall and as associate counsel to President Bill Clinton. Kagan would become the third Jewish justice on the current court, joining Ruth Bader Ginsburg and Stephen Breyer. Her opponents on the right are already up in arms about her lack of judicial experience, though they might thank themselves for that, since Senate Republicans effectively blocked Kagan's nomination to a U.S. Court of Appeals seat in 1999.
While Kagan has no judicial record to scour, she has done enough academic writing to create a significant paper trail. Her specialty is First Amendment and administrative law; she has also done a good deal of thinking about the proper role of the executive branch, most notably in a 2001 law review article that rather presciently addressed the theory of a "unitary executive" initiated in some sense by the Clinton Justice Department and especially beloved by Bush lawyers like David Addington. Kagan concluded that "President Clinton's assertion of directive authority over administration, more than President Reagan's assertion of a general supervisory authority, raises serious constitutional questions."
Kagan is probably most famous for being a careful pragmatist who throws few ideological bombs. The New York Times has described her legal writings as "dense, hedged and moderate." She is also known as the woman who healed an ideological fracture that threatened to destroy Harvard Law School by recruiting prominent conservative faculty members and focusing attention on student needs. Conservative opponents have latched onto her opposition to on-campus military recruiting at Harvard because of the military's "don't ask, don't tell" stance toward gay soldiers. Liberals, for their part, have been disappointed by Kagan's stance on hotly contested terrorism questions, including her support for indefinite detention of prisoners without a trial.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.
Dahlia Lithwick writes about the courts and the law for Slate.
Chris Wilson is a Slate contributor.