Supreme Court, Part III: Obama unlikely to move court much to the left

But might prevent further rightward shift

In the first two parts of this series, we looked at the precarious balance on the Supreme Court as it stands currently and at the kinds of justices we could expect John McCain to nominate if he wins the election in November. Now we’ll look at the impact that Barack Obama could have on the court and at some of the potential nominees he might choose from.

This is actually a good deal more difficult to do for the Democrats than it is for the Republicans. The conservative legal establishment is better organized and more coherently grouped together than the liberal legal establishment. This is mostly due to the influence of the Federalist Society, a group that includes virtually every conservative legal scholar, attorney and judge in the country. This organization was founded specifically to provide a central institution for conservative legal viewpoints and to increase the influence of those viewpoints in the judiciary, and it has done a remarkable job of doing that.

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There is a similar organization for the liberal legal establishment, the American Constitution Society (ACS), but the ACS does not have anywhere near the influence or organizational strength that the FedSoc does. That’s partly because the ACS is much newer, formed in 2001, while the FedSoc was formed in 1982. If Obama is elected, however, he will be able to draw on his own experience and relationships formed as a Harvard Law School graduate, editor of the Harvard Law Review and as a lecturer in constitutional law at the University of Chicago.

Obama certainly won’t lack for advisers, the chief among them almost certainly being his former University of Chicago colleague Cass Sunstein (though by fall, Sunstein will be joining the faculty at Harvard). Sunstein is one of the most prominent liberal legal scholars in the country: A study by University of Texas law professor Brian Leiter found last year that Sunstein is, by a considerable margin, the single most widely cited legal scholar in America. He is also an adviser to Obama on judicial matters (and just last week he also married Samantha Power, who was one of Obama’s chief foreign policy advisers until she was fired for saying rude things about Hillary Clinton).

Indeed, Sunstein himself is considered by many to be a potential nominee to the Supreme Court in an Obama administration. That would buck the trend in recent decades of only nominating those with experience on the federal bench, but given his extraordinary prominence as a scholar, it is unlikely that his lack of actual judicial experience would be much of an issue. What could be a problem is that, like Robert Bork, Sunstein has an extraordinarily large amount of scholarly writing for opponents to pick through for controversial statements. And in fact, he has made some statements that might anger even his fellow liberals, like arguing in the last few years that President Bush’s warrantless wiretapping program might not actually be unconstitutional.

At the very least, however, we should expect that Sunstein would be someone to whom Obama would turn to help vet potential nominees. But who might those nominees be? A year ago, Tom Goldstein, a partner in one of the top appellate law firms in the country and one of the nation’s most astute court watchers, wrote an article on his SCOTUSblog that speculated on what names might be on the short list for a Democratic president after this year’s election.

Goldstein speculated that the next president, regardless of party, will be under a good deal of pressure to nominate a woman for the first vacancy, especially if the first vacancy is for Justice Ginsburg’s seat. He also speculated that the recent trend toward nominating relatively young justices (meaning those in their 50s rather than 60s) will likely continue because both parties will seek to maximize the long-term influence of their own nominees. And he further speculated that there will also be pressure to expand the court’s ethnic diversity, particularly with the first Hispanic justice on the court or with a second African-American justice.

Having started with those assumptions, here are some of the names he came up with. For the first vacancy, he proposed several prominent women: Diane Wood, a judge on the 7th Circuit Court of Appeals; Sonia Sotomayor, a judge on the 2nd Circuit Court of Appeals; Elena Kagan, Dean of Harvard Law School; Leah Ward Sears, Chief Justice of the Georgia Supreme Court; and Kim Wardlaw, a judge on the 9th Circuit Court of Appeals. Of those, the most likely may be Sotomayor, who would not only add a second female to the court (assuming she didn’t replace Ginsburg) but would also be the first Hispanic justice.

Goldstein proposed that the second seat would likely go to a recognized intellectual heavyweight in the legal community but also to a woman (his presumption being that the second vacancy would be Justice Ginsburg’s seat). His short list for that seat was Kagan, Wood or Kathleen Sullivan, former dean of Stanford Law School. Of that threesome, he leaned toward Kagan because she was younger than the other two and thus might be able to serve a longer period.

There were several other potential nominees on his speculative list, including: Deval Patrick, an African-American who is the current governor of Massachusetts and former official in the Clinton justice department; Sen. Ken Salazar of Colorado; Teresa Roseborough, a very well-respected African-American attorney who would likely need to be appointed to an appeals court seat for a couple of years and then nominated later in the term if a third vacancy arose; and even Michigan Gov. Jennifer Granholm, though that is probably a long shot. These are all potential nominees with solid progressive credentials.

As we saw in the first two parts of this series, if Obama is elected, likely the most he could hope for — at least in the near term — is to retain the current balance on the court. The only realistic possibility for a vacancy from the conservative side of the court is Justice Scalia; the other three are the youngest members of the court by a fairly large margin. Justice Kennedy, the key swing vote on the court, could potentially retire in the next few years and replacing him might give the liberal side of the court a solid five votes but not an overwhelming advantage. That may be the best-case scenario for an Obama administration.