White House Said to Have Short List Ready for Justice Stevens' Slot

 National Law Journal:

Washington being Washington, even if lobbying is discouraged, meetings take place, well-connected people make well-placed comments, and advice is freely offered. The late New York Sen. Daniel Patrick Moynihan reportedly sealed the deal for Ginsburg's nomination in 1993 with a strong pitch to Clinton during a flight they shared.

In the current setting, it can't hurt, for example, that famed Harvard Law School professor Laurence Tribe, a fan of Kagan's, is ensconced in the Justice Department as an adviser to Attorney General Eric Holder Jr. For Garland, it also can't hurt that two of his former clerks, Danielle Gray and Jonathan Kravis, are attorneys in the White House counsel's office. Gray plays a key role in screening judicial nominees.

Diane Wood has connections to Obama's Chicago allies, and, to a lesser degree, Obama himself, having taught with him at the University of Chicago Law School.

THE RIGHT REPLACEMENT

Still, there seems to be less chatter about the identity of the Stevens replacement than usual in gossipy Washington. "I'm not hearing a damn thing," said Nan Aron, who usually does. "It feels like Ginsburg followed by Breyer all over again." Aron is president of the liberal Alliance for Justice.

Some conservatives speculate that liberals will be unenthusiastic about the presumed front-runner, Elena Kagan. M. Edward Whelan III, a former Scalia clerk who heads the Ethics and Public Policy Center, said Kagan's fence-mending leadership of Harvard Law School has garnered for her "significant support among conservatives," and she has been "very guarded" in the stances she has taken throughout her career.

But Aron, asked if she would oppose Kagan, said no, adding, "This year we are going to decide who we are for, not who we are against."

Aron, a leading strategist in confirmation battles since Bork, did say that, "knowing this is the Stevens seat, we hope President Obama would appoint a very strong defender of individual rights, a strategic leader. This is much more important than Souter's seat." Aron also argued that "no matter who he puts up, Republicans will obstruct. So he should just appoint someone he really wants to be a fitting successor to Justice Stevens."

The White House's willingness to engage Chief Justice John Roberts Jr. and the Court in the State of the Union address and afterwards on the Citizens United v. Federal Election Commission ruling may also affect Obama's pick.

O'Melveny & Myers appellate chief Walter Dellinger, the former acting solicitor general in the Clinton administration, said, "The decision [in Citizens United] to equate fully corporations and persons makes the 'just an umpire' model of judging seem somewhat less appealing." Dellinger was referring to Roberts' description at his 2005 confirmation hearing of the role of judges as like that of baseball umpires. "Life experience and judgment and understanding of how law affects people all look a lot more valuable in a judge after Citizens United," he added.

The word "empathy" will still be taboo as it was for Sotomayor last year, Dellinger said, but "The American public might now better understand that there is something to be said for a judge who senses that corporations do not have hearts and souls, do not revere grandparents, don't worry about their children, and do not have dreams for the future in the way that people do."

Posted via email from Jim Nichols for GA State House