With governor as possible stealth nominee, legal observers ponder Justice Granholm

Photo by Gary Shrewsbury via Governor's Office

With Michigan Gov. Jennifer Granholm apparently on President Obama’s short list of potential nominees to replace retiring Justice David Souter on the U.S. Supreme Court, legal scholars and court watchers are wondering what kind of justice Granholm might be. Unlike the other five names on the list, Granholm is neither a sitting federal judge nor has a long record of legal scholarship to consult in making that judgment.

Daniel Ray, who teaches constitutional law at Cooley Law School, told Michigan Messenger that Granholm does not have “a substantial body of scholarly work or judicial opinions that could lend insight into the kind of Supreme Court Justice she might turn out to be.” And he notes that recent presidents “have grown quite wary of appointing to the Supreme Court a candidate like this, sometimes called a ‘stealth’ nominee.”

Coincidentally, the last nominee to the court who fit that description was the man she might replace on the court, Justice Souter. “The best illustration of the risk this kind of nominee poses,” Ray said, “is the appointment of Justice Souter himself by the first President Bush. Very little was known about David Souter before his nomination. Though he had spent nearly all of his professional life in public service, he had done so living quietly in New England. Opponents of his nomination worried — correctly as it turned out — that without a substantial track record to review, there was no way to predict Souter’s views on important topics. President Bush thus had little hard evidence to support his belief that Souter would make a reliable conservative Justice. Shortly after taking his seat on the Court, Justice Souter began to drift to the left, much to the disappointment of those who speculated about such a turn. Today, Justice Souter is generally characterized as a moderate or left-leaning Justice, one who regularly joins the high court’s more liberal voters.”

So could a Justice Granholm possibly move to the right and be the kind of justice that a liberal president might not want? Ray said this is not so far-fetched. “Ironically, in considering her as a nominee, President Obama faces much the same dilemma as did the first President Bush when he nominated David Souter,” Ray said. “Lacking much to go on to predict whether Gov. Granholm would generally side with the Court’s moderate or liberal bloc, there is some risk that she might drift to the right, thus solidifying a conservative majority on the Court. Needless to say, this would be a disaster for President Obama’s supporters, who are counting on him to — at the very least — shore up the Court’s liberal bloc with a much younger group of Justices.”

Ray notes that Granholm’s background as a prosecutor might be a hint of such rightward drift, saying, “Before being elected Michigan’s Governor, she worked as a prosecutor — first as an Assistant United States Attorney, and later as Michigan Attorney General. This background might suggest that Gov. Granholm would tend to side with the government and against the individual on some social issues.”

But he also said that this is a generalization that does not necessarily apply to Granholm. Souter, after all, had a similar background to Granholm, serving for many years as the New Hampshire attorney general, and he drifted to the left rather than the right. Ray says that the mere risk of her being a more conservative justice than they might predict will likely lead the president’s advisers to counsel against her nomination directly to the court and to suggest instead that she be given a seat on a lower federal court to develop a track record on which to evaluate her work.

Ray notes, however, that Granholm is likely on the list because President Obama has spoken of the possibility of looking outside the usual slate of federal judges for a nominee, perhaps someone with more diverse life experiences, and Granholm might be exactly what he is looking for.

“If there are reasons to question whether Gov. Granholm would make a good Supreme Court Justice,” Ray said, “there are just as many reasons to think that she has precisely the qualities to do so. First, she has a razor sharp intellect, one that is well suited for the give and take of life as a Justice, and one that is essential for working through complex and difficult legal and constitutional issues. Second, she is likely possessed of the empathy that President Obama has said he wants in a nominee. As Governor of Michigan, a state hit as hard as any other by the latest economic downturn, Gov. Granholm has seen firsthand how decisions made half a nation away have real and often painful impact on ordinary people. It is likely that a Justice Granholm would give as much consideration to practical consequences as to constitutional theory in reaching her decisions.”

Ray said that the more apt comparison for Granholm may not be Justice Souter but another recent Supreme Court retiree: Justice Sandra Day O’Connor. O’Connor had a background in the Arizona legislature, developing skills that “helped her build coalitions and consensus on an oft-divided court.” It was those skills that made O’Connor so influential on the court and none of the other justices on the court today have that kind of political experience.

Lastly, he said that Granholm’s age may be an asset. At 49, she would be the youngest sitting justice by many years. Ray says that is “an important consideration in an age when justices regularly serve for two decades or more. Her youth would mean that a Justice Granholm could impact the law and constitutional thought well past the end of the Obama Administration.”