Contenders for the High Court

If It's Bush



Send in the Scalia-Thomas Clones



Emilio Garza, Fifth Circuit: This former marine captain has clear conservative stands on all the important issues (like the purported error of Roe v. Wade). But he's shrewd enough not to wear them on his sleeve. Appointed by President Bush in 1991 after three years as a U.S. district court judge and another three as a state trial judge, Garza was also a finalist for the High Court seat that went to Clarence Thomas. His Hispanic background is a big asset: Both presidential candidates would love to appoint the first Hispanic to the Court.


J. Michael Luttig, Fourth Circuit: The Fourth Circuit Court of Appeals has the reputation of being the most conservative court in the land. One recent Fourth Circuit decision overturned Miranda--and was reversed by the Supreme Court earlier this year. Appointed in 1991, Luttig is a big reason for the circuit's shift to the activist right. He has also paid his political dues, heading the National Advisory Committee for Lawyers under President Bush in 1988 and holding various political appointments under Reagan and Bush.



J. Harvie Wilkinson, Fourth Circuit: The chief judge on the Fourth Circuit, Wilkinson is another big reason for the circuit's strong rightward tilt. Appointed by President Reagan in 1984, this 57-year-old has published books and articles on subjects ranging from Virginia politics to the Supreme Court and integration.




Edith Jones, Fifth Circuit: Still only 51, Jones has been on the short list for several prior High Court vacancies. She is a hard-line conservative, particularly when it involves slamming the door on death penalty appeals. One problem: Jones might face tough questions about comments she made from the bench in a 1989 sexual harassment case in which she downplayed a number of the sexual-abuse charges.



The Bright Wingers



Frank Easterbrook, Seventh Circuit: Like his Seventh Circuit colleague Richard Posner, Easterbrook teaches part time at that bastion of law and economics, the University of Chicago Law School. But unlike the iconoclastic Posner, Easterbrook is reliably and ardently conservative. He has an incredible knowledge of the law, but some find him condescending and arrogant.


Samuel A. Alito, Third Circuit: Appointed by President Bush in 1990 (like many other potential George W. appointees), this bright 50-year-old former Justice Department appointee has been tagged with the moniker "Scalito" by liberals, after Justice Scalia, which tells you what you need to know about his judicial philosophy. As former U.S. attorney, Alito wrote a strong dissent to a decision striking down a Pennsylvania abortion law that included a husband notification provision.



The Unlikelies




Alex Kozinski, Ninth Circuit: A judge who writes a lot and says what he thinks, at 35 he became the youngest appointee to the Court of Appeals since 1892. A Romanian Jewish émigré, he is the son of Holocaust survivors. His extensive paper trail and unconventional conservatism would likely pose a problem in confirmation hearings (one of his first opinions was a defense of free speech for homosexuals). And during his previous confirmation hearings, some senators questioned his judicial temperament.



Richard Posner, Seventh Circuit: He's still one of the brightest judges in the nation. His voluminous writing on subjects ranging from antitrust laws to literature to the economics of baby-selling are legendary. Can you imagine the hearings? Neither could a George W. Bush White House.


Senator Orrin Hatch, Utah: Once a clear short-list candidate, Hatch has never hidden his interest in the Court, particularly in the chief justice's seat. A reliable conservative, Hatch has cultivated a reputation for being able to work with people from both sides of the aisle. His age (66) works against him, but any president would relish the opportunity to avoid a nomination fight, which Hatch, or almost any senator, would bring.


If It's Gore



The First Tier




José Cabranes, Second Circuit: Born in Puerto Rico in 1940, Cabranes was appointed to the Connecticut district court by Jimmy Carter in 1979 and elevated to the appellate court by Bill Clinton in 1994. As a district court judge, he was a vocal critic of federal sentencing guidelines. Cabranes has already been considered for a Supreme Court nomination by presidents Clinton and Bush.


David Tatel, D.C. Circuit: Tatel is a well-respected intellectual leader on what many consider to be the second-most-important court in the land. Appointed by President Clinton in 1994, he has strong progressive credentials: He was director of the Office for Civil Rights at the former Department of Health, Education and Welfare and head of the Lawyers' Committee for Civil Rights Under Law. No doubt, Tatel would say it is unimportant that he would be the first blind Supreme Court justice.


Judith Kaye, New York Supreme Court: Kaye reportedly declined an offer from President Clinton to fill one of the two vacancies on the Court during his presidency. As the chief judge of the New York supreme court, who is in charge of the entire New York court system, Kaye would be an excellent choice to fill the center seat should William Rehnquist step down. At present, though, there is no indication that she has changed her mind.


Merrick B. Garland, D.C. Circuit: Still under 50, Garland, a former Justice Department lawyer and assistant U.S. attorney, fits the mold of the typical Clinton judicial appointee--very bright and moderate. A former clerk for William Brennan, Garland managed to get significant Republican support for his current seat and reportedly wants a High Court spot badly. Some even suggest his opinions are tempered to shape his image in achieving this goal. Appointed in 1997, he may lack the judicial experience for a first-term appointment.


Martha C. Daughtry, Sixth Circuit: Daughtry has considerable experience--in private practice, as an assistant U.S. and district attorney, as a law professor, on the Tennessee Court of Criminal Appeals, on the Tennessee supreme court, and now on the Sixth Circuit. But she might be too liberal. Conservatives tried to defeat her 1993 nomination to the Court of Appeals because of her earlier rejection of the death penalty in a number of cases on the Tennessee supreme court. But what state does Al Gore come from?


Amalya Kearse, Second Circuit: Her star has faded somewhat; she was considered for earlier Clinton Supreme Court appointments, but she still is a possibility. Moderate in her opinions, Kearse is one of the few African Americans in the current pool of Court potentials.



Still Need Seasoning



Mary Margaret McKeown, Ninth Circuit: She's one of the few Democratic appointees on the liberal Ninth Circuit who actually might be considered for the High Court. McKeown served as a White House fellow and special assistant during the early Reagan years. Appointed only two years ago, she's still relatively new to the bench. But at age 49, she could be a second-term appointment.



Diane Woods, Seventh Circuit: Appointed by President Clinton in 1995, Woods is a young, highly thought of, moderate-to-liberal judge. She has worked as a law professor, in private practice, and as a government lawyer.



It's Academic--and Unlikely



Laurence Tribe: The guru of constitutional law, this Harvard prof once seemed the most likely of nominees. But he testified against Robert Bork and made lasting enemies.


Kathleen Sullivan: Tribe's protégé, this smart and savvy professor, now dean of Stanford, might have been a real High Court possibility had she been nominated to the Ninth Circuit during the Clinton administration. (Common progressive complaint: Clinton failed to lay the groundwork in the same way that Republicans have in bringing more academics into the judiciary.) Also, Sullivan may carry too much liberal baggage from work as counsel on earlier cases.



Walter Dellinger: Very bright and a heck of a nice guy, he probably would be a great justice, but most likely won't get nominated because of previous testimony he has given concerning other nominees, not to mention the zillion briefs he signed as acting solicitor general in the Clinton administration. Since he couldn't even get past home-state Senator Strom Thurmond to be nominated for that position, it's virtually certain he won't be nominated for a Supreme Court spot.

  • Back to The Return of States' Rights by Cass R. Sunstein





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