Breaking and associated brands will be offline for scheduled maintenance Saturday May 8 3 AM US EST to 12 PM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Selection of Supreme Court justices is a fickle business. Any person who tries to predict exactly who a future president will appoint to the highest court is likely to be disappointed at best, and embarrassed at worst. Many justices, including Brennan, Souter and Blackmun, were plucked from virtual obscurity, to the great surprise of court watchers at the time. Chief Justice Rehnquist (whose name then-President Nixon could not even recall) was on no one’s radar screen prior to his nomination, and he was picked only after two others had been rejected by the Senate. At the same time, highly respected jurists at the top of everyone’s short list, such as Judges Richard Posner and Alex Kozinski (and, at least for a while, Judge Kenneth Starr) have never been nominated. Many judges who were picked — including Robert Bork and Douglas Ginsburg — didn’t survive the confirmation process. Still, while it is impossible to know who will ultimately inhabit whatever black robes President Kerry gets to fill, one thing is certain — President Kerry’s judges will be very different from President Bush’s: less ideological, less hostile to constitutional privacy rights, and more likely to take each case on its own terms. Based on Kerry’s voting record in the Senate, we can expect one principle to define his nominations: Kerry will appoint a “judge’s judge,” whose opinions are guided by the facts and the law, and not by any “liberal” or “conservative” political philosophy. Kerry has stated repeatedly that his ideal judge is one whose political party would not even be evident from his or her written decisions. And in the Senate, Kerry has consistently favored judges who work hard to be faithful to Congress’s intent and to respect the limits on government embodied by the Constitution. Unlike some of President Bush’s nominees, President Kerry’s picks would likely not overlook the purpose of a statute or constitutional provision in favor of some sort of “strict construction” or “original intent” of words drafted in a very different place and time. In fact, Kerry has criticized President Bush’s favorite justices — Antonin Scalia and Clarence Thomas — for championing this approach. Kerry hasheld up Justice Potter Stewart as a model of the ideal judge.Stewart, like Justices Byron White, Sandra Day O’Connor and John Paul Stevens, is difficult to categorize in that he sided with the conservative wing of the court on some issues and the liberal wing on others, taking each case on its own terms, without respect to a particular political philosophy. President Kerry’s actual choices will inevitably depend greatly on when a vacancy occurs and who is doing the vacating. For example, if the chief justice were to step down early on in President Kerry’s term, Kerry may want to elevate one of the more moderate current justices, or look for a moderate but readily confirmable jurist with strong administrative skills to avoid an early showdown with the Senate. President Kerry might even be inclined to select a moderate Republican to replace the chief, as a way of demonstrating a commitment to bipartisanship. On the other hand, if Stevens were to step down, Kerry might make a more aggressive choice, selecting a younger, centrist, and minority version of Stevens himself. Replacing O’Connor, the current swing justice, would likely produce the most heated and difficult confirmation process. That choice would likely turn on the mood of the public, the composition of the Senate and other factors. With all of these caveats, and ignoring the short lists of many people who claim to know better, the following five jurists would fit well with President Kerry’s philosophy: D.C. Circuit Judge David Tatel, former Solicitor General Drew Days, Second Circuit Judge Sonia Sotomayor, California Chief Justice Ronald George and former Stanford Law School Dean Kathleen Sullivan. Judge David Tatel, 62, currently serves on the D.C. Circuit U.S. Court of Appeals, the same court that spawned three current justices (Scalia, Thomas and Ginsburg). He would be the first blind person to be appointed to the U. S. Supreme Court, and certainly the first Supreme Court justice who came to the court with a disability. Judge Tatel’s memory is renowned, and he is known to recite entire passages from prior decisions down to the last comma and semicolon. He also has a breadth of real-world experience that President Kerry would likely value, having served in the executive branch as director of the Office of Civil Rights in the U.S. Department of Health, Education and Welfare in the Carter administration, and as a partner with Hogan & Hartson, where he was one of the nation’s leading education and civil rights lawyers. Although certainly an unconventional choice, California Chief Justice Ronald George — a Republican — is a compelling judicial figure that might make an astute nominee for an early court vacancy. Perhaps no other judge in the country has a better judicial pedigree. After graduating from Stanford Law School, he appeared before the Supreme Court six times as a state prosecutor. Thereafter, George, 64, was appointed and then elevated by Democrat and Republican governors to every judicial office in California. Republican Ronald Reagan appointed him to the municipal court, Democrat Jerry Brown elevated him to the superior court, Republican George Deukmejian appointed him to the court of appeal, and Republican Pete Wilson appointed him first to the Supreme Court and then elevated him to chief justice of that court. Chief Justice George’s views are difficult to classify as liberal or conservative: He routinely votes to affirm capital sentences but has found constitutional limits against parental consent laws; he has upheld limits on affirmative action and found that the Boy Scouts as a private organization may exclude gays and atheists, but has also written opinions holding that private country clubs cannot exclude women. While older than many of the other potential Supreme Court nominees, Chief Justice George is in great shape: He is said to run four miles each weekday and 20 miles a day on weekends. Judge Sonia Sotomayor, 50, serves on the Second Circuit U.S. Court of Appeals in New York, and based on her moderate record and compelling personal history, has been mentioned as a potential Supreme Court nominee for the better part of a decade. A Hispanic (Puerto Rican-American) female who was raised in the housing projects of the South Bronx, she has a life story that mirrors that of Justice Thomas but is unencumbered by the baggage of his fierce political philosophy. She started her legal career as a prosecutor, then spent eight years as a commercial litigator before then-President George H.W. Bush appointed her to the federal district court in New York in 1992. When President Clinton tapped her for a vacancy on the Second Circuit six years later, she had a surprisingly slow confirmation owing to (false) concerns by Senate Republicans that Judge Sotomayor was being elevated so that she could replace a supposedly retiring Justice Stevens. (After a 15-month delay, she was ultimately confirmed easily, 68-28.) Her well-known decisions include a ruling ending the major league baseball strike in 1995 and a ruling ordering the Department of Justice to release a copy of Vincent Foster’s suicide note to The Wall Street Journal. Currently a professor at Yale Law School, Drew Days III, 63, served as solicitor general of the United States for three years during the Clinton administration. In the early part of his career, Days was heavily involved in the civil rights movement: He was the first assistant counsel for the NAACP Legal Defense and Education Fund, and served as assistant attorney general for civil rights during the Carter administration. As a law professor, Days has remained active in political circles and built bridges as a member of the board of the MacArthur Foundation, a fellow of the American Academy of Arts and Sciences, and a member of the Council on Foreign Relations. Days is a particularly attractive candidate because, in addition to his storied legal career, he is not viewed as an ideologue. He publicly supported Bush’s controversial conservative nominee to the D.C. Circuit, Miguel Estrada, and is well regarded on both sides of the aisle. Sen. Orrin Hatch, for example, expressed “great respect” for Days in the course of the Estrada hearings. In addition, Days would be only the third African-American to serve on the court and would allow Kerry to have the first court ever with more than one person of color. Former dean of Stanford Law School Kathleen Sullivan, 49, would be a strong candidate based on her breadth of practical experience, her impeccable scholarship and her political savvy. Professor Sullivan is a leading First Amendment scholar and appellate advocate who now serves as director of Stanford’s new Constitutional Law Center. She began her career as a Harvard law professor (at age 29), earned tenure in record time, and eventually co-authored one of the most respected texts on constitutional law before becoming Stanford’s first female dean of the law school. Although generally considered to have liberal leanings, Sullivan is not viewed as an ideologue and she cannot be easily pigeonholed. She was, for example, an opponent of campaign finance reform on First Amendment grounds. ABOUT THE AUTHORS: The authors are attorneys at Munger, Tolles & Olson in San Francisco. Jeff Bleich clerked for Chief Justice William Rehnquist of the U.S. Supreme Court, and has written extensively about the court.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.