Yesterday Tom Goldstein posted his prediction that President Obama will nominate Elena Kagan to fill retiring Supreme Court Justice John Paul Stevens's seat on the Court. Goldstein's analysis is at The New Republic, here.We took notice of the post because Goldstein, the founder of SCOTUS blog (here), frequently provides some of the most enlightening analyses of the Court's jurisprudence -- and its dynamics and personnel.
Goldstein argues that the Administration's three primary candidates remain Kagan, Diane Wood, and Merrick Garland, who he says are being accurately "located" on the liberal-to-conservative spectrum as follows: Wood (most liberal), then Kagan, then Garland (most conservative).
Then, Goldstein explains why Kagan is the President's most likely choice from both jurisprudential and political perspectives. Among other factors, Goldstein cites to Kagan's greater experience off-the-bench: "she held two significant positions in the White House—deputy counsel and deputy domestic policy advisor—that directly involved her in significant policy- and legislation-related decisions" (emphasis added). Of course, Kagan's off-the-bench experience is limited compared to "real world politician" candidates Janet Napolitano and Jennifer Granholm.
Anticipating the major candidates' possible effect on the Court's interpersonal dynamics - and in particular their ability to persuade Anthony Kennedy's critical swing vote - Goldstein writes:
On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well. Merrick Garland almost certainly has the greatest level of personal respect among the existing Justices, and as a consequence I believe (as I said yesterday) that he would have the most immediate impact on the Court. But part of that relates to his own centrism, and there is little reason to believe that he would emerge as the intellectual leader of the left. Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.My thought is that Goldstein may be underestimating the potential conservative opposition to a Kagan nomination. At any rate, the announcement is expected by the end of May, and for those not interested in Dancing with the Stars re-runs during the hot summer days, the Senate hearings should provide some interesting moments regardless of the nominee.
