Deval Patrick, Massachusetts governor and former assistant attorney general for civil rights. It would be a welcome departure from recent practice to have a former elected official on the bench and Patrick also has experience in business on the board of United Airlines, and in private legal practice. He has been an effective and innovative executive and a strong advocate for social justice. Patrick's range of experiences and skills would add a great deal to the high court. Bonus: an African-American voice on the court other than that of Clarence Thomas.
Cass Sunstein, Harvard Law School professor and Obama's head of the Office of Information and Regulatory Affairs. Yes, he has the longest paper trail of any nominee since Robert Bork; and yes, the extreme right will go ballistic. Who cares? Sunstein is someone any sensible conservative should embrace. He has been an eloquent advocate of judicial moderation and as a scholar he has consistently put good judgment and sound methodology above ideology. He has written broadly and convincingly on a wide range of the most important issues facing the country and he has developed a nuanced and compelling political philosophy and theory of constitutional and statutory interpretation.
—Richard Thompson Ford, Stanford Law School professor
Carter G. Phillips
In making his choice, I would urge the president to follow Stevens' example in selecting a nominee who is intellectually inquisitive, comfortable in his or her own skin, and guided by an intuitive desire to actually understand the law made by others, rather than to remake the law in his or her own image. Of course, some good, plain-spoken Midwestern persuasive defense of the rule of law—as Congress or the Constitution actually provided—would also be welcome and Stevens-esque, too.
A nominee from the usual appellate judge circle who meets these criteria: Merrick Garland, who has a reputation for evenhanded, tough-minded, but gracious questioning. However, it is really well past the time to break the Circuit Court template, especially in favor of someone with a marquee Supreme Court practice. Carter G. Phillips should be the president's top candidate. Phillips has 65 appearances before the court, experience in the SG's office, and knowledge of court precedent that is unmatched. He possesses the decency, heart, and motivation for the common good of the most dedicated pro bono, community legal aid lawyer. Phillips is a nominee with Stevens' gifts but also the ability to form majority coalitions far more regularly. It is not exaggeration to say that the survival of modern civil rights litigation is the result of Phillips' handiwork. His brief in the Michigan affirmative action case was repeatedly cited by name during oral argument by the liberal and moderate justices, and it was strategically and substantively effective in holding a narrow, but important majority. President Obama cannot change the numerical liberal-conservative split replacing Stevens, but he can bring to the court a justice who can make the big plays and win the close contests, and that's Phillips. Some advisers in the White House may look to Deval Patrick or Harold Koh, both of whom are lawyers of distinction and would be attractive from a diversity perspective. But frankly, in this season of Tea Party madness, these nominees could easily get roughed up early and rejected or blocked. By contrast, Phillips should be filibuster-proof. And he is in command of the kind of logic and intellect Kennedy would find hard to resist. Majorities of Phillips, Kennedy, Ginsburg, Breyer and Sotomayor would follow. Phillips would also bring a needed practitioner's wisdom to the court. If Phillips for some inexplicable reason didn't jell, I would have the ebulliently intelligent, multiparty Walter Dellinger in my back pocket.
—Doug Kmiec, U.S. ambassador to the Republic of Malta
In almost every respect, the qualifications of David Tatel should be obvious. He has served with great distinction on the D.C. Circuit for 16 years and is widely considered one of the best judges in the nation. He's hard-working, thoughtful, and rigorously fair. It is also to his advantage that, unlike recent appointees, Judge Tatel has strong connections outside the Washington-Princeton-New Haven-Cambridge corridor. Like Justice Stevens, Judge Tatel was a distinguished private-sector lawyer for many years, including time in Chicago. He attended the University of Michigan for his undergraduate education and the University of Chicago for law school. His age, 68, which most would assume is a disqualification, should instead be viewed as a positive qualification. The notion that presidents should strive to pick someone who will be on the court for 30-40 years is entirely misguided. A president should strive to pick someone who is up to the job as soon as he or she takes a seat on the high court, not a decade later, after gaining sufficient experience. The problems of the nation are too great and too pressing to allow for the Supreme Court to become a training ground for the future. Judge Tatel is known and highly respected by the current justices and would be ready from Day 1. When Justice Oliver Wendell Holmes joined the court in 1902 he was 61, and he went on to serve for more than 30 years. Lewis Powell was 64. Given that life expectancy when Holmes was born in 1841 was a lot shorter than it is today, there is good reason for a president now to believe that a healthy 68-year-old can serve for a long and distinguished time on the court.
—Richard J. Lazarus, Georgetown University law school professor and faculty co-director of the Georgetown University Supreme Court Institute
I've been saying for some time now that I believe Pam Karlan is truly in possession of a once-in-a-lifetime legal mind. Through her work at Stanford's Supreme Court Litigation Clinic, she's had the kind of experience on the defense side that is really lacking at the court. At 51, she has served as assistant counsel at the NAACP Legal Defense and Educational Fund, authored three leading casebooks on constitutional law, and worked tirelessly to articulate and defend a principled liberal view of the constitution. I really do believe that nobody else talks like Karlan, thinks like Karlan, or brings the kind of crackling youth and brilliance and intellectual energy I'd frankly pay to see on the left side of the high court.
—Dahlia Lithwick, Slate senior editor
Cass Sunstein is the most important legal scholar of his generation. No one has contributed as many important ideas to as many fields of law as he has. He has written influentially on legal reasoning, the advantages and limits of cost-benefit analysis in administrative law, the revolution in constitutional rights, cognitive biases and their implications for the law, deliberation and polarization of opinion, climate change, risk assessment, and much else. Currently the chief of the Office of Information and Regulatory Affairs in the Obama administration, his political instincts are generally liberal but he has surprising and unpredictable views on a range of issues, which make him difficult to fit into standard political classifications. An honest, humane, and respectful person, he enjoys debating and writing with friends across the political spectrum. It also doesn't hurt that he writes beautifully.
—Eric Posner, University of Chicago law professor
Martha Minow, Elizabeth Warren, Vicki Jackson, Robert Post, Diane Wood
If thinking outside the current box (and looking to historical precedents, such as Felix Frankfurter and William O. Douglas), many current law professors are worth thoughtful review. Martha Minow, now dean of the Harvard Law School; Elizabeth Warren, also from Harvard and a leading expert on commercial and bankruptcy law; Vicki Jackson of Georgetown's law faculty and a scholar of comparative constitutional law; and Robert Post, Yale's dean, whose understanding of the First Amendment, constitutional law, and the role of public institutions is profound. Diane Wood, now sitting on the 7th Circuit, and widely discussed in the last nomination round, offers both the vantage point of a former law professor (a scholar of civil procedure and anti-trust) and a member of the Department of Justice.
—Judith Resnik, Yale Law School professor
Harold Koh would bring much-needed expertise in international law to the Supreme Court. Currently legal adviser at the State Department and formerly assistant secretary of state for democracy, human rights and labor as well as a lawyer in the Justice Department's Office of Legal Counsel, Koh is a former dean of the Yale Law School. He has a compelling personal story as the child of immigrant parents, has been a longtime fighter for human rights and would be the first Asian-American appointee to the court. In his recent speech at the meetings of the American Society for International Law he defended U.S. policy in the anti-terrorism campaign. The speech shows that he is no legal radical when operating from a position of power, as his detractors sometimes fear.
—Kim L. Scheppele, director of the program in law and public affairs at Princeton University
In considering whom to nominate to the Supreme Court, President Obama should focus, above all, on who would be a great justice, and Judge Robert Katzmann very clearly has the potential to be exactly that. What makes Judge Katzmann stand out from a very impressive group of possible nominees is the combination of important strengths he would bring to the Court. During his decade of service on the Second Circuit, he has been an extraordinarily skilled appellate judge, a master of the judicial craft. He knows government from an academic perspective: A former professor at Georgetown and Brookings Fellow, he has produced influential scholarship on the relationship between the courts and Congress, a subject of critical importance to the Court. He also understands governance from a practical perspective, having had a long working association with the late Senator Moynihan. He is a gifted writer whose opinion writing won an award from the Green Bag magazine. Finally, he is a judge who, rather than operating in an ivory tower, has a powerful dedication to helping the less fortunate. Recognizing the plight of the countless immigrants facing deportation without legal representation (or with grossly inadequate representation), he personally launched an extraordinary effort that has engaged a broad spectrum of New York City's lawyers in voluntarily representing people in the immigration court system. Judge Katzmann inspires respect across the political and judicial spectrum. His combination of intellectual gifts, judicial skill, knowledge of government, and concern for the disadvantaged is compelling.
—William Treanor, dean of Fordham Law School