Choose Your Own Supreme Court Justice
Out of our Top 21, whom do you like best?
Posted Monday, April 12, 2010, at 5:01 PM
As the American Prospect notes, Napolitano was quick to build up "law-and-order credibility" as a federal prosecutor and later as the state's attorney general. (In 2002, she won the conviction of Salvatore "Sammy the Bull" Gravano, the former Gambino family associate who testified against John Gotti.) She is alsoconsidered moderate on immigration and strongly in favor of the death penalty. She was a popular two-term governor.
Napolitano represented Anita Hill before the Senate judiciary committee during Thomas' confirmation hearing, an experience she says left her with a strong sense that "women really didn't have an avenue to be heard at that time." (Thomas, who would be one of Napolitano's colleagues if she became a justice, was narrowly confirmed.) As U.S. attorney, Napolitano supervised the investigation of Michael Fortier, an accomplice to the Oklahoma City bombers who later testified against them in court. In Ring v. Arizona, Napolitano unsuccessfully defended a state law before the Supreme Court that allowed a judge to determine whether aggravating factors in a case are sufficient to administer the death penalty. (The court ruled 7-2 against Arizona, finding that only a jury could make that decision.)
Diane Wood,59, has been on the U.S. Court of Appeals for the 7th Circuit since Bill Clinton tapped her in 1995. She went to the University of Texas for college and law school and clerked on the Supreme Court for Justice Harry Blackmun. After she joined the faculty of the University of Chicago Law School, she became the first woman there to receive a named chair. She is one of the most respected voices on the 7th Circuit—a lawyer's court known for its high standards at oral argument. Judges Frank Easterbrook and Richard Posner, two conservative colleagues with giant intellects, send Wood their draft opinions for review.
Notable cases: Last time a vacancy on the Supreme Court came up, the right quickly targeted Wood for her 2001 ruling in NOW v. Scheidler, which allowed a lower-court judge to prevent anti-abortion protesters, nationwide, from blockading clinics. Wood's ruling approved a novel use of RICO, the federal anti-racketeering law. The Supreme Court overturned her in 2003; Justice Ruth Bader Ginsburg concurred out of concern about extending the reach of RICO to political protests. In 2002, Wood dissented from a ruling by Easterbrook upholding an Indiana law that raised the cost of an abortion by requiring that a woman make a separate trip to her clinic to give informed consent before the procedure. On First Amendment grounds, in 2004 Wood ruled against a city's ban of a convicted sex offender from its parks, after he admitted to cruising for children there but left without molesting them. And when a condo owner sued to put up a mezuzah on his doorpost, challenging his condo association's rule against placing "objects of any sort" in the hallways, Wood dissented from another Easterbrook opinion deeming the rule neutral with respect to religion. "The condo association might as well hang a sign outside saying 'No Observant Jews Allowed,' " she wrote.
Cass Sunstein, 55, is a close confidante of Obama's whose résumé, up to a point, looks a lot like the president's: Harvard Law School and a professorship at the University of Chicago with a focus on constitutional law. Until recently, when he accepted a job as the head of the White House's Office of Information and Regulatory Affairs, he had spent most of his career in the academy after clerking for Thurgood Marshall and a short stint at the Office of Legal Counsel in the early '80s. Often described as a polymath, Sunstein is fluent in political science and churns out books. The latest is Nudge, about the power of gently guiding people toward the choices you want them to make.
Though he's willing to be called a liberal, Sunstein is not a stock liberal's dream candidate. He has a strong libertarian streak, though he promotes a theory of "libertarian paternalism" that finds some space for encouraging positive behavior. He also advocates judicial restraint, urging the court to limit the scope of its decisions—a "one case at a time" approach. He is cautious on domestic wiretapping, suggesting it may be legal under the president's various authorities, and mostly opposes the prosecution of Bush administration officials accused of illegal activity.
Sunstein has characterized the current court as being composed of "two different kinds of conservatives" and has argued that the court has drifted to the right over the last three decades. He is generally disdainful of ideology-driven jurisprudence. He supported John Roberts' nomination but told Slate in 2007 that he was "surprised that Roberts has shown no unpredictability at all" in his unwavering conservatism. If he makes it onto the court, Sunstein is unlikely to be so reliable for the left.
Leah Ward Sears, 54, has a string of firsts to her name—she's the first African-American woman to be a superior court judge in Georgia, the first appointed to the state Supreme Court, and the first to become the chief of that court, after then-Gov. Zell Miller appointed her to fill a vacancy. In 2004, conservatives waged a major campaign to unseat Sears by throwing money at her opponent. She prevailed with 62 percent of the vote. She retired from the bench last year and joined the Atlanta-based firm Schiff Hardin LLP.
Sears calls herself "a moderate with a progressive streak." She doesn't sound like a lefty when she campaigns for a pet cause: strengthening marriage. "As a judge I am often frustrated that I must work within a system designed only to pick up the pieces after families have already fallen apart or failed to come together," she wrote in a 2006 Washington Post op-ed. Sears, who is divorced herself and has two children, is thoughtful rather than pat on the topic: While she worries about kids who grow up in single-parent families, she said in a 2007 speech that "as a woman who came of age at the height of the feminist movement, I do not really hold naive notions about the so-called good old days, Ozzie and Harriet and that kind of thing." Twin fun facts from this 2005 profile: Sears annoyed some of her civil rights allies by inviting her old friend Justice Clarence Thomas to her inauguration, and she named her daughter Brennan, after one of the Supreme Court's liberal lions, former Justice William Brennan. Notable cases: As a state court judge, Sears did not built a long record interpreting federal law. She wrote the 2007 ruling that released Genarlow Wilson from prison, based on the theory that his 10-year sentence, for having sex with a 15-year-old girl when he was 17, was "grossly disproportionate to his crime." In 2008, she dissented from a ruling of her court upholding the death sentence of a man who killed an off-duty cop. Seven of the nine witnesses against the defendant had recanted, some of them saying their trial testimony had been coerced. Sears said the court was skirting the "fundamental question": whether an innocent man was being put to death. She also opposed, in 2004, the Georgia Supreme Court's decision to allow on the ballot an amendment to the constitution that succeeded in banning same-sex marriage.
Kim McLane Wardlaw, 55, has 16 years of private practice (at the firm O'Melveny & Myers) to back up her 14 years on the bench. She had a business litigation practice with a specialty in intellectual property and media defense. Bill Clinton appointed Wardlaw to the federal district court in California after she volunteered for his presidential campaign in the 1992 election and served on the Clinton-Gore transition team at the Justice Department. In 1998, Clinton elevated her to the 9th Circuit. She sailed through both her confirmations with bipartisan support. (Sen. Dianne Feinstein is one of her backers.)
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.