JANET NAPOLITANO ON SCOTUS?

I was a bit surprised to read, yesterday, that Homeland Security Secretary Janet Napolitano, the former governor of Arizona, is on President Obama's shortlist for the Supreme Court. When I profiled Napolitano for the Prospect last year, spending some time with her in Phoenix, I came away with a picture of a savvy political animal, not a pondering intellectual. As a Democrat in Arizona, a state with a powerful hard-right, anti-immigrant constituency, Napolitano built her political career through careful triangulation on issues such as law enforcement and border security.

In her first term as governor, Napolitano dispatched the National Guard to the border, earning the ire of some Arizona progressives. She has never served as a judge, but she did argue one case in front of the Supreme Court, as Arizona's attorney general in 2002. In that case, Napolitano defended Arizona's death penalty system, then rated as one of the 10 most error-ridden in the country. She lost. The Supreme Court ruled that Arizona capital cases must be heard by a jury, not just a judge.

In short, Napolitano's moderate record suggests she might not be the outspoken liberal justice many are hoping for. It is certainly possible though, that other instincts would emerge if Napolitano were freed, with a lifetime appointment, from the constraints of Arizona politics. Or, her experience working closely with Republicans in Arizona could make Napolitano a powerful consensus-builder on a split Court.

One strength -- or weakness, depending on who you talk to -- is that on feminist issues, Napolitano's commitment has never wavered. In fact, she got her start in politics as an attorney representing Anita Hill during her testimony before the Senate in 1991. Napolitano continues to firmly believe that Clarence Thomas -- her potential future colleague -- was guilty of a prolonged pattern of sexual harassment. "The Judiciary Committee handled it very badly," she told me of Thomas' confirmation hearings. "It really did bring home how issues of women really didn't have an avenue to be heard at that time."

Napolitano is also firmly pro-choice and has a history of financial support for Emily's List and individual female politicians. She would undoubtedly be painted as a radical by Senate Republicans, but so would almost any potential nominee up to snuff.

--Dana Goldstein

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