The Supreme Court shortlist as political anthropology.
The press was discovering "hints" that Supreme Court Justice John Paul Stevens might be stepping down as long ago as September. Then, in March, he fortified the hints in an interview with Jeffrey Toobin, and over the weekend Stevens confirmed that he was indeed thinking about thinking about leaving in interviews with the New York Times' Adam Liptak and the Washington Post's Robert Barnes.
Stevens' cat-and-mouse musings filled the weekend talk shows with noise about filibuster threats to nominees who don't yet exist, as well as a long list of rumors about who is on President Obama's short list to fill a seat that has yet to be vacated.
Writing about potential Supreme Court vacancies can be like a pie-eating contest. You, the journalist, just grab everything in sight and don't stop for a breath till it's over. You speculate to the breaking point about what it all means, and sometimes you speculate about the possibility that there will actually be two vacancies. This madness continues until a justice actually steps down and an actual replacement is named. Concocting Supreme Court scenarios after Supreme Court scenario can be more like writing fiction than reporting the news.
The current buzzing tells us very little about what the White House is thinking but tells us a lot about how the media, advocacy groups, and the public expect to see the next fight over the court: All imagine that it will conform to the same chalk outlines remaining from the last appointment and confirmation dramas. Gazing into the emptiness of the not-yet-vacant Stevens seat and seeing what we most want to see, we make sure that by the time the White House steps in with a name, it will hardly matter whose name it is.
Bear in mind that the Obama administration has been slow to name its lower-court judges and has then faced opposition to even the most uncontroversial nominees. While the fight for Stevens' seat looks to the average American like a one-off, it happens amid a puzzling lack of passion over the judiciary from this White House. We may yet get a peek at a White House roaring into action this summer, to correct for the rightward tilt at the Supreme Court. Or we may watch the White House continue to put the courts second to everything else in its legislative agenda.
The first and best analysis of how this will all play out came from SCOTUSblog's Tom Goldstein well over a month ago. Goldstein picked Solicitor General Elena Kagan as the safe White House choice in late February—and that was even before shouts of "baby-killer" in Congress made it clear that the next confirmation fight could be a bloody one. How much stomach will Obama and his advisers have for a blowout fight over an institution about which liberals seem to care little and conservatives care a whole lot? Given how health care reform came down, liberals hoping that Obama will bank on his 59 votes and swing for the fences with a soulful, inspiring Brennan clone should probably accept that his fence-swinging days have ended. He'll be happy with a single.
The shortlists being bandied around—including this one we produced last year at Slate—have been repurposed from the lists we saw when Justice David Souter resigned last spring. Former Solicitor General Elena Kagan's stock is rising, Janet Napolitano's has plummeted, and there seems to be at least some sense that Obama should replace the court's lone Protestant (Stevens) with another. Beyond that, the shortlist everyone is blogging about from Bloomberg News today seems awfully short. It names Kagan and federal appeals court judges Diane Wood and Merrick Garland as the three serious contenders. The White House has declined to comment on the existence of any such shortlist or who might be on it. Regardless of the depth and breadth of their experience, if Kagan is named, the fight will be about executive power; if Wood is picked, the fight will be about abortion; and if Garland is picked, there won't be much of a fight about anything.
This Bloomberg list probably doesn't lay out all the players in contention but it may establish the political goal posts: Wood is the most outspoken and persuasive liberal and would be the most controversial pick; Garland is a well-respected moderate that the right has already acceded to as its best alternative. Kagan is somewhere in between the two but has the advantage of being young with some impressive Republican supporters.
The most interesting thing about this week's three-person shortlist is who isn't on it. With the exception of Judge Wood, there's nobody on this list to reassure liberals that the court will not continue to move rightward over the course of the Obama presidency. Notably absent are the lawyer/politicians such as Michigan Gov. Jennifer Granholm and Minnesota Sen. Amy Klobuchar, which suggests that nobody thinks Obama will risk naming someone with the real-life experience so desperately lacking at the court. Also missing from this court are the legal academics—like Kathleen Sullivan, Laurence Tribe, Cass Sunstein, Harold Koh, or Pam Karlan—who would bring a deeply worked-out constitutional vision to the court. If they are really not being considered, it means the White House isn't looking for a big liberal voice again this time around. Perhaps more intriguing, nobody on this list really has the kind of inspiring American story that Sonia Sotomayor brought to her confirmation. While Obama managed to change the subject from judicial ideology to personal biography last time around, there are few names on this shortlist that shout, "Hey, doing something historic here!"
As an anthropological document, the Bloomberg News list reveals a good deal about the general fatigue of the court-watchers. We've become so reliant upon the old scripts about "activists" and "umpires" and abortion and religion that we prefer them to experimenting with new ones. Whatever populist rage emerged following the Citizens United decision probably won't translate to the naming of a populist nominee. The Bloomberg shortlist speaks volumes about the White House and its political calculus, as well as the political rut in which we all find ourselves. It also says almost nothing about what Obama wants in a judge—beyond a confirmation.
Dahlia Lithwick writes about the courts and the law for Slate.