Many people think, based upon the age of sitting U.S. Supreme Court Justces, that one to three of them will leave office early in the term of the next President. Tom Goldstein at SCOTUS blog, the leading online observer of the U.S. Supreme Court, has placed Ken Salazar on a short list of five likely U.S. Supreme Court nominees, if a Democratic President is elected in 2008 and has an opportunity to fill more than one Supreme Court vacancy.Most liberal Democrats would see an appointment of Salazar to the high court as a nightmare, given that the socially moderate Democratic Senator is among the least reliably liberal in the Senate on the kind of issues that come before the U.S. Supreme Court and matter to liberals.
For example, Salazar voted in favor of the Military Commissions Act of 2006 which greatly narrowed the writ of habeas corpus and granted amnesty to human rights violators in the Bush Administration.
How Did Ken Salazar Make The List?
1. He was a Democrat not believed by Mr. Goldstein to be “too liberal or controversial to be reasonably confirmable.”
2. He is a U.S. Senator. The list assumes “that the next nominees will come from the federal bench, a state supreme court, Congress, a Governorship, a previous senior Justice Department position, or the Deanship of a major law school.”
3. He is Hispanic. Goldstein believes that the next President will feel an extraordinary pressure to name another woman in a first appointment, and “that the next nominee will be non-white, and most likely Hispanic.”
4. He is young enough. Goldstein believes that there will be pressure to name someone “that would be fifty-seven or older by the time of a post-election appointment in 2009. The cutoff was not absolute, however; a few nominees made the list notwithstanding that they were a year or two older.”
The Others on the Short List
Who else is on Goldstein’s short list:
The First Seat:
Hon. Johnnie Rawlinson, U.S. Court of Appeals for the Ninth Circuit
Chief Justice Leah Ward Sears, Georgia Supreme Court
Hon. Sonia Sotomayor, U.S. Court of Appeals for the Second Circuit
Hon. Kim McLane Wardlaw, U.S. Court of Appeals for the Ninth Circuit
Additional Names for a Second and Third Seat:
Gov. Jennifer Granholm, Governor and former State Attorney General (term limited as of 2010)
Dean Elena Kagan, Harvard Law School
Hon. Merrick Garland, U.S. Court of Appeals for the District of Columbia
Gov. Deval Patrick, Governor and former Asst. Attorney General (first term ends in 2010)
He ultimately predicts that the nominees will be:
Kim Wardlaw (2009, for Souter), Deval Patrick (2010, for Stevens), and Elena Kagan (2011, for Ginsburg).
Salazar doesn’t make the final cut in Goldstein’s prediction.
Impact on Jurisprudence
Democrats face something of a lose-lose proposition in U.S. Supreme Court appointments. Given the age, health and outlook of sitting justices, the four Justices that make up the solid right wing of the U.S. Supreme Court, and “swing vote” Justice Kennedy are likely to remain on the Court indefinitely. This means that things can’t get much better for liberals on the Supreme Cour than they are now.
As Goldstein puts it: “a nominee on the left is in all likelihood signing up for ten years of dissent on many of the most important issues of Court confronts.”
But, it is entirely possible that a nominee who is a moderate or conservative could move the Court to the right, by creating two Justices who sometimes vote with the right wing of the Court, making Kennedy’s support less indispensible to conservative outcomes. Similarly, almost any Republican nominee would cement of solid five member conservative majority on the Court, eliminating the occassional liberal victories secured with Kennedy’s swing vote.