Who Should Replace Justice Stevens?
An offbeat shortlist.
Updated Saturday, April 10, 2010, at 7:45 PM
Justice John Paul Stevens has announced his plans to retire. Let the shortlist parlor game begin. Of course, it already has. The three names that the White House has been bandying about to reporters are Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit, Solicitor General Elena Kagan, and Judge Merrick Garland of the D.C. Circuit Court of Appeals. We asked some of our favorite legal friends to weigh in with their less-obvious choices. Here are their answers so far, and we'll add more as they come in. Tell us your own choices in the comments, and we'll round those up, too. Here's Slate's shortlist from last year, when the winner was Justice Sonia Sotomayor.
I didn't support Hillary Clinton's candidacy for president, but I think she'd be a rock star of a Supreme Court justice. Clinton has all the makings of a full-throated, strong-minded liberal stalwart on the bench. She's been an advocate for children and for families for as long as she's been in public life. They are in need of as much help as they can get on the court. (Wait for this term's ruling on whether juveniles can serve life without parole to see what I mean.) She knows how to frame ideas for a wide audience, which would help the liberal wing of the court counterbalance the genius rhetoric of Antonin Scalia. She's a celebrity, which means she'll automatically command the kind of attention that a junior member of the court usually does not. She's served as secretary of state long enough to make a graceful exit. She is a former senator, which should win her some courtesy and deference during the godforsaken nomination process—will the Republicans who worked with her personally really throw grenades when they question her? And, of course, she brings a wealth of real-world political experience to the court. The only knock on Clinton is that at 62, she won't necessarily serve for decades upon decades. But she looks healthy and energetic as ever and I'd trade a few extra years for her mettle and character.
—Emily Bazelon, Slate senior editor
Bryan A. Stevenson
The nomination of Bryan Stevenson, director of the Equal Justice Initiative in Alabama and professor at the NYU Law School, would be a much-needed return to putting a great lawyer like Louis Brandeis or Thurgood Marshall on the Supreme Court—someone of great intellect who has heroically represented real people with desperate needs in actual cases and knows how the justice system functions in courthouses and communities all over the nation and the impact it has on people. The current members of the court have no real sense of the injustices and cruelty of the criminal justice system, the complete absence of any semblance of an adversary system in many parts of the country, the inability of the poor to get their day in court in any kind of case. The court would benefit immensely from Bryan Stevenson's experiences and perspectives, just as Justice Marshall's colleagues benefited from his experiences and insights as many related in their tributes to him after his retirement. Throughout its history, the court has been well-served by the diversity of experience of its members. It is urgently in need of that kind of diversity today.
—Stephen B. Bright, president and senior counsel, Southern Center for Human Rights
Justice Oliver Wendell Holmes famously wrote that the life of the law is not logic but experience. Holmes, a thrice-wounded Civil War combat veteran, may have had his wartime experience in mind. In retiring, Justice John Paul Stevens will deprive the Supreme Court of its last sitting veteran. At a time when our nation is at war and the Supreme Court finds itself increasingly brought into cases involving war powers and the military, the court needs a justice with visceral military experience, if not combat experience as well. Accordingly, President Obama should choose a veteran to replace Stevens. One option would be William Gunn, current general counsel of the Department of Veterans Affairs. Gunn graduated with honors from the Air Force Academy and Harvard Law School and then served nearly 20 years in the Air Force Judge Advocate General Corps. He was part of the military that transitioned from the Cold War to the post-Cold War deployments of the 1990s to today's global war on terrorism. His final assignment as chief defense counsel for the Office of Military Commissions put him at the epicenter of the court's battles over national security policy, a tough position he performed well. And he's been recently confirmed by the Senate, an asset for any pick.
—Phillip Carter, lawyer at McKenna Long & Aldridge and former deputy assistant secretary of defense for detainee policy for the Obama administration
There are many exceptionally qualified potential nominees, but because I think the court desperately needs to replace Stevens with an experienced trial lawyer, my favorite candidate is Charles Ogletree. Ogletree was a legendary trial lawyer with the D.C. Public Defenders and continues to consult and litigate while teaching at Harvard Law, where he also runs the clinical program. He a deeply religious Protestant and a leader of the African-American community. He is a beloved teacher and an important scholar. He would add several important elements to the current court in addition to his trial experience, including real-life exposure to a wide range of people and situations. He is a lawyer's lawyer. He is far more representative of African-Americans than the court's only other black member, Clarence Thomas. Most of all, he is a real "mensch"—a man of great compassion, intellect, and courage. He also has a compelling life story. He has mentored many of the leading young lawyers, including our president. The selection of Ogletree would be memorable and dramatic. He would make an extraordinary justice.
—Alan M. Dershowitz, Harvard Law School professor
Stephen Carter, David Cole, Pam Karlan
If President Obama acknowledges that filling this vacancy is sufficiently important to warrant a fight, then I hope he will nominate someone like Pam Karlan or David Cole. Both are graduates of Yale Law School, and both are law professors who have straddled academia and legal practice. More important, both have been centrally involved in the most important legal issues of the day. In Karlan's case, she is one of the nation's leading experts on anti-discrimination law and oversees Stanford Law School's Supreme Court clinic. In Cole's case, he has been the country's most informed vocal critic of the legal excesses that have accompanied the so-called war on terror, and he has been continuously litigating against these excesses. Either would provoke a vicious conformation battle, but, in either case, the battle would be worthwhile. If Obama wants a safe choice, then he might tilt toward an academic like Stephen Carter. Carter used to make the short list when Clinton was president, and although he is rarely mentioned anymore, he is still relatively young (not yet 60) and firmly planted in the middle of the political road. An expert on constitutional law (especially religion) as well as intellectual property, he's probably a little too conservative for my personal taste, but that's exactly what makes him safe.
—David R. Dow, University of Houston Law Center professor, litigation director at the Texas Defender Service, and author of The Autobiography of an Execution
Many of us (myself included) would like to see President Obama nominate somebody with experience in elected office, like Jennifer Granholm or Janet Napolitano. Maybe it will happen, but it seems unlikely—the nominee would be attacked as "too political." So how about a state court justice instead of a federal appellate judge? New Jersey Supreme Court justice Stuart Rabner is smart, young, and widely respected. He is a career prosecutor with a reputation for great integrity and for being nonpartisan: Democrat Jon Corzine appointed him, but Republican Chris Christie is also a fan. Plus, Rabner would add geographic diversity: He's a North Jersey guy, whereas Alito and Scalia are South Jersey. (More seriously, geographic diversity, if it still matters to anyone, obviously cuts against my suggestion—but at least Stuart is not a Washington lawyer, a group that I think is already over-represented on the court.)
—Christopher L. Eisgruber, Princeton University provost
Sure, conservatives will go ballistic. But why should they prevent President Obama from nominating an extremely smart, well-credentialed, thoughtful, and seemingly confirmable candidate? Koh, the former Yale Law School dean who is legal adviser for the State Department, would bring intellectual fire power to the court and broaden it in other ways as well. He's never been a judge (a plus for the current court) but has a wealth of legal experience—as a lawyer, a scholar of international law, a law dean, and in the executive branch (under Reagan and Clinton and now Obama). And, yeah, he'd be the first Asian-American appointed to the court.
—Lee Epstein, Northwestern University School of Law professor
President Obama should nominate Elizabeth Warren to replace Justice Stevens. Warren is the Harvard law professor currently serving as chairwoman of the Congressional Oversight Panel investigating the banking bailout. She has for years been one of the nation's foremost experts on bankruptcy, focusing on how it impacts working-class Americans. For years before the bubble burst, Warren warned us about the dangers of subprime mortgages. She has proved masterful at communicating this message to the public and to Washington. Her life story is an embodiment of what people can do when given the economic opportunities she has advocated in her writings. The daughter of a janitor, Warren did not attend elite private universities—she went to the University of Houston and Rutgers law school before eventually joining the Harvard faculty. The current Supreme Court has no justices with expertise in business matters, and has been pushing the law in a conservative direction in such cases. Warren adds that expertise as well as a progressive perspective. And for a White House that likes nominees it knows, it is important to note that the president met Warren years ago, and promoted many of Warren's ideas during his presidential campaign.
—David Fontana is a George Washington University law professor; Seth Grossman, who clerked for Justice Stephen Breyer, is a lawyer at Jenner & Block
Pam Karlan, Kathleen Sullivan, Deval Patrick, Cass Sunstein
At risk of compromised objectivity, I will suggest two of my own colleagues at Stanford, Pam Karlan and Kathleen Sullivan, both accomplished Supreme Court litigators, highly influential scholars of Constitutional law and uncannily perceptive and energetic interlocutors. If you want an antidote to the "umpire calling balls and strikes" nonsense that has passed for jurisprudence recently, read Karlan's book Keeping Faith With the Constitution. If you want to see a model of the judicial temperament in action, listen to almost any argument or lecture Kathleen Sullivan gives.
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.