Slate wants to hear from you on whom Barack Obama should nominate to replace Supreme Court Justice David Souter, who will retire at the end of this year’s term. Below is our handpicked list of leading candidates for the job, which you can further filter by age and gender using the buttons on the left. To cast your vote, click on the name and then click “Nominate” at the bottom of the candidate’s profile to send us an e-mail. Please write a few words about why you’re choosing your pick as well. (Comments may be quoted by name unless you specify otherwise.)
Sonia Sotomayor, 54, is so far at the top of most shortlists, she is arguably a shortlist unto herself. A summa cum laude graduate of Princeton with a law degree from Yale, she’d be the first Hispanic justice (depending on how you count Benjamin Cardozo). She is reportedly Catholic (she went to Cardinal Spellman High School in the Bronx), which would make her the sixth Catholic on the Supreme Court. Sotomayor grew up in the Bronx in a housing project, and at age 8 she was diagnosed with diabetes. Her father, a manual laborer, died when she was 9. She was appointed to the U. S. District Court for the Southern District of New York in 1992 by President George H.W. Bush, and Bill Clinton elevated her to the United States Court of Appeals for the 2nd Circuit in 1998. She is seen by most as a fairly moderate jurist, although Sotomayor is famous for being outspoken and quite brash on the bench, a quality for which she is now being criticized.
Notable cases: Sotomayor is responsible for the opinion that ended the Major League Baseball players strike when, in 1995, she issued an injunction against MLB owners and for an order allowing the Wall Street Journal to publish Vince Foster’s suicide note. She ruled against the government in a case involving the Hells Angels. Last year, she was on a panel that ruled against a high-school student punished for posting an objectionable message on an Internet site. One of her more controversial moves was a ruling last year in a New Haven, Conn., affirmative action case that allowed the city to scuttle the results of a firefighter promotions test because no African-Americans could pass the test. Not only was the opinion controversial on its face, but it was less than one page long and seemed to duck the hard issues, prompting a strong call by 2nd Circuit Judge Jose Cabranes for the Supreme Court to hear the case—as the justices did at the end of April.
Jennifer Granholm, 50, the current governor of Michigan, has no experience on the bench—which, as the Detroit News noted, would make her the first nonjudge to reach the court since William Rehnquist and Lewis Powell in 1972. Since she was born in Vancouver, she would also be the first foreign-born justice since Felix Frankfurter, who joined the court in 1939.
Granholm does not have an extended record from which to draw conclusions about her judicial philosophy. After graduating from Harvard Law in 1987, Granholm clerked for 6th Circuit Court of Appeals Judge Damon Keith, who is credited with desegregating Pontiac and pushing back against the Nixon administration on wiretapping. (Granholm still considers Keith a mentor.) Granholm served as an assistant U.S. attorney in the Eastern District of Michigan for four years before being elected governor. She was re-elected governor in 2006 but is limited to two terms in office.
Notable cases: As a prosecutor, Granholm’s most newsworthy case involved the theft of nearly 49,000 copies of the movie Fantasia. As attorney general, much of her focus was on consumer protection and high-tech crimes like identity theft. As governor, she has been preoccupied by budget fights with the state legislature because of Michigan’s massive deficit.
Elena Kagan, 49, is also at the top of most shortlists, and we know she’s confirmable because she was just confirmed as the first female solicitor general of the United States, the only federal official required by statute to be “learned in the law.” Kagan has a J.D. from Harvard Law School, where she was supervising editor of the law review. While Kagan has never argued a case before the court—her lack of Supreme Court experience led to a tense confirmation on a 61-31 vote—she did serve as clerk to Thurgood Marshall and as associate counsel to President Bill Clinton. Kagan would become the third Jewish justice on the current court, joining Ruth Bader Ginsburg and Stephen Breyer. Her opponents on the right are already up in arms about her lack of judicial experience, though they might thank themselves for that, since Senate Republicans effectively blocked Kagan’s nomination to a U.S. Court of Appeals seat in 1999.
While Kagan has no judicial record to scour, she has done enough academic writing to create a significant paper trail. Her specialty is First Amendment and administrative law; she has also done a good deal of thinking about the proper role of the executive branch, most notably in a 2001 law review article that rather presciently addressed the theory of a “unitary executive” initiated in some sense by the Clinton Justice Department and especially beloved by Bush lawyers like David Addington. Kagan concluded that “President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”
Kagan is probably most famous for being a careful pragmatist who throws few ideological bombs. The New York Times has described her legal writings as “dense, hedged and moderate.” She is also known as the woman who healed an ideological fracture that threatened to destroy Harvard Law School by recruiting prominent conservative faculty members and focusing attention on student needs. Conservative opponents have latched onto her opposition to on-campus military recruiting at Harvard because of the military’s “don’t ask, don’t tell” stance toward gay soldiers. Liberals, for their part, have been disappointed by Kagan’s stance on hotly contested terrorism questions, including her support for indefinite detention of prisoners without a trial.
Janet Napolitano, 51, has an extensive background in public and private law, but like Jennifer Granholm and Elena Kagan, Napolitano has never served as a judge. After clerking for a judge on the 9th Circuit Court of Appeals after law school, she joined a local Phoenix firm, where she specialized in commercial and appellate work. She quickly made partner, eventually joining Supreme Court scholar John P. Frank in defending Anita Hill at the Clarence Thomas hearings. President Clinton appointed her U.S. attorney for Arizona shortly after taking office, though her confirmation was held up for nearly a year over lingering resentment in the Senate.
As the American Prospect’s Dana Goldstein notes, Napolitano was quick to build up “law-and-order credibility” as a federal prosecutor and later as the state’s attorney general. (In 2002, she won the conviction of Salvatore “Sammy the Bull” Gravano, the former Gambino family associate who testified against John Gotti.) She is alsoconsidered moderate on immigration and strongly in favor of the death penalty. She was a popular two-term governor.
Napolitano represented Anita Hill before the Senate judiciary committee during Thomas’ confirmation hearing, an experience she says left her with a strong sense that “women really didn’t have an avenue to be heard at that time.” (Thomas, who would be one of Napolitano’s colleagues if she became a justice, was narrowly confirmed.) As U.S. attorney, Napolitano supervised the investigation of Michael Fortier, an accomplice to the Oklahoma City bombers who later testified against them in court. In Ring v. Arizona, Napolitano unsuccessfully defended a state law before the Supreme Court that allowed a judge to determine whether aggravating factors in a case are sufficient to administer the death penalty. (The court ruled 7-2 against Arizona, finding that only a jury could make that decision.)
Diane Wood,58, has been on the U.S. Court of Appeals for the 7th Circuit since Bill Clinton tapped her in 1995. She went to the University of Texas for college and law school and clerked on the Supreme Court for Justice Harry Blackmun. After she joined the faculty of the University of Chicago Law School, she became the first woman there to receive a named chair. She is one of the most respected voices on the 7th Circuit—a lawyer’s court known for its high standards at oral argument. Judges Frank Easterbrook and Richard Posner, two conservative colleagues with giant intellects, send Wood their draft opinions for review.
Notable cases: The right is already targeting Wood for her 2001 ruling in NOW v. Scheidler, which allowed a lower-court judge to prevent anti-abortion protesters, nationwide, from blockading clinics. Wood’s ruling approved a novel use of RICO, the federal anti-racketeering law. The Supreme Court overturned her in 2003; Justice Ruth Bader Ginsburg concurred out of concern about extending the reach of RICO to political protests. In 2002, Wood dissented from a ruling by Easterbrook upholding an Indiana law that raised the cost of an abortion by requiring that a woman make a separate trip to her clinic to give informed consent before the procedure. On First Amendment grounds, in 2004 Wood ruled against a city’s ban of a convicted sex offender from its parks, after he admitted to cruising for children there but left without molesting them. And when a condo owner sued to put up a mezuzah on his doorpost, challenging his condo association’s rule against placing “objects of any sort” in the hallways, Wood dissented from another Easterbrook opinion deeming the rule neutral with respect to religion. “The condo association might as well hang a sign outside saying ‘No Observant Jews Allowed,’ ” she wrote.
Cass Sunstein, 54, is a close confidante of Obama’s whose résumé, up to a point, looks a lot like the president’s: Harvard Law School and a professorship at the University of Chicago with a focus on constitutional law. He has spent most of his career in the academy after clerking for Thurgood Marshall and a short stint at the Office of Legal Counsel in the early ‘80s. Often described as a polymath, Sunstein is fluent in political science and churns out books. The latest is Nudge, about the power of gently guiding people toward the choices you want them to make.
Though he’s willing to be called a liberal, Sunstein is not a stock liberal’s dream candidate. He has a strong libertarian streak, though he promotes a theory of “libertarian paternalism” that finds some space for encouraging positive behavior. He also advocates judicial restraint, urging the court to limit the scope of its decisions—a “one case at a time” approach. He is cautious on domestic wiretapping, suggesting it may be legal under the president’s various authorities, and mostly opposes the prosecution of Bush administration officials accused of illegal activity.
Sunstein has characterized the current court as being composed of “two different kinds of conservatives” and has argued that the court has drifted to the right over the last three decades. He is generally disdainful of ideology-driven jurisprudence. He supported John Roberts’ nomination but told Slate in 2007 that he was “surprised that Roberts has shown no unpredictability at all” in his unwavering conservatism. If he makes it onto the court, Sunstein is unlikely to be so reliable for the left.
Leah Ward Sears, 53, has a string of firsts to her name—she’s the first African-American woman to be a superior court judge in Georgia, the first appointed to the state Supreme Court, and the first to become the chief of that court, after then-Gov. Zell Miller appointed her to fill a vacancy. In 2004, conservatives waged a major campaign to unseat Sears by throwing money at her opponent. She prevailed with 62 percent of the vote.
Sears calls herself “a moderate with a progressive streak.” She doesn’t sound like a lefty when she campaigns for a pet cause: strengthening marriage. “As a judge I am often frustrated that I must work within a system designed only to pick up the pieces after families have already fallen apart or failed to come together,” she wrote in a 2006 Washington Post op-ed. Sears, who is divorced herself and has two children, is thoughtful rather than pat on the topic: While she worries about kids who grow up in single-parent families, she said in a 2007 speech that “as a woman who came of age at the height of the feminist movement, I do not really hold naive notions about the so-called good old days, Ozzie and Harriet and that kind of thing.” Twin fun facts from this 2005 profile: Sears annoyed some of her civil rights allies by inviting her old friend Justice Clarence Thomas to her inauguration, and she named her daughter Brennan, after one of the Supreme Court’s liberal lions, former Justice William Brennan. She has said she plans to leave the Georgia Supreme Court in June to pursue other opportunities, rather than for health reasons. By leaving the court midterm, Sears will give Republican Gov. Sonny Perdue the chance to tilt the court to the right when he names her replacement—to the great frustration of those who fought for her election. “It is very disappointing,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights.
Notable cases: As a state court judge, Sears hasn’t built a long record interpreting federal law. She wrote the 2007 ruling that released Genarlow Wilson from prison, based on the theory that his 10-year sentence, for having sex with a 15-year-old girl when he was 17, was “grossly disproportionate to his crime.” In 2008, she dissented from a ruling of her court upholding the death sentence of a man who killed an off-duty cop. Seven of the nine witnesses against the defendant had recanted, some of them saying their trial testimony had been coerced. Sears said the court was skirting the “fundamental question”: whether an innocent man was being put to death. She also opposed, in 2004, the Georgia Supreme Court’s decision to allow on the ballot an amendment to the constitution that succeeded in banning same-sex marriage.
Kim McLane Wardlaw, 54, has 16 years of private practice (at the firm O’Melveny & Myers) to back up her 14 years on the bench. She had a business litigation practice with a specialty in intellectual property and media defense. Bill Clinton appointed Wardlaw to the federal district court in California after she volunteered for his presidential campaign in the 1992 election and served on the Clinton-Gore transition team at the Justice Department. In 1998, Clinton elevated her to the 9th Circuit. She sailed through both her confirmations with bipartisan support. (Sen. Dianne Feinstein is one of her backers.)
Don’t let the blond chignon fool you: Wardlaw is the first Latina to serve on a federal appeals court. She is truly of mixed heritage—in this 2009 interview, she writes, “My mother was Mexican, Catholic, and Republican, while my father was a Scottish-Irish Presbyterian and a loyal Democrat.” She also says: “Women can have it all, but not all at the same time. … The real life consequences of my desire to make partner as a litigator in an international law firm were that I did not marry until I was 30; did not have my first child until I was 35; and found myself at age 41 with a six-month-old infant daughter starting a job as a U.S. District Court Judge.”
Notable cases: Wardlaw wrote the 9th Circuit opinion, now on appeal to the Supreme Court, which found a violation of the Fourth Amendment in an Arizona school’s strip-search of a 13-year-old girl wrongly suspected of hiding prescription-strength ibuprofen in her underwear. Wardlaw wrote that “a reasonable school official, seeking to protect the students in his charge, does not subject a 13-year-old girl to a traumatic search to ‘protect’ her from the danger of Advil.” At oral argument, the Supreme Court seemed likely to overturn Wardlaw’s ruling, to the apparent despair of Justice Ruth Bader Ginsburg.
In 2008, Wardlaw wrote the first appellate opinion giving Fourth Amendment protection to e-mail messages, in a case brought by government workers whose bosses wanted to search their e-mail accounts. The Electronic Frontier Foundation called the ruling “a tremendous victory for your online privacy.” In another case on appeal to the Supreme Court this term, Wardlaw ruled that AT&T must give women who retired from the company credit, in calculating pension benefits, for work time lost decades ago for maternity leave. And in a 2004 ruling affirmed by the Supreme Court, Wardlaw strengthened the hand of the Environmental Protection Agency in enforcing the Clean Air Act, in a case about whether the EPA could stop a new pollution-spewing mine over the objections of the state of Alaska.
Pam Karlan, 50, teaches law at Stanford University. As founding director of the school’s Supreme Court Litigation Clinic, she has helped represent dozens of defendants in criminal and civil rights matters, all free of charge. An expert on constitutional and election law, Karlan has served as assistant counsel at the NAACP Legal Defense and Educational Fund. Karlan has authored three leading casebooks on constitutional law (one of which Obama taught from) and is co-author of a brand new book, Keeping Faith With the Constitution, which offers a progressive theory of jurisprudential interpretation. Karlan confirmed to Politico that she is “counted among the LGBT crowd.” Karlan, whose legal writing is both trenchant and prolific, has become something of a rock star on the legal conference circuit.
Karlan has no judicial record to probe, but she has an immense collection of writings. She argued at the Supreme Court in defense of the Voting Rights Act and wrote an amicus brief on behalf of legal academics in the 2003 case Lawrence v. Texas, arguing that laws against consensual sodomy were unconstitutional. She has defended criminal defendants in police search cases at the high court and has been a strong advocate for gay marriage. (Disclosure: Karlan is an acquaintance of Dahlia Lithwick’s.)
Merrick Garland, 56, has something in common with four of the current Supreme Court justices: Like Roberts, Thomas, Scalia, and Ginsburg, he comes from the D.C. Circuit Court of Appeals, which, as the National Law Journal notes, is considered the second-most important court and a breeding ground for Supreme Court justices. After he graduated from Harvard Law School, Garland clerked for Justice William Brennan Jr., worked for Jimmy Carter’s Justice Department, spent time in private practice and as a federal prosecutor, and returned to the DoJ under Clinton, where he oversaw the investigation of the Oklahoma City bombings and prosecuted the Unabomber. For this Supreme Court nomination, he bears the obvious liability of being a white male at a time when Obama is facing pressure on many fronts to nominate someone who has at most one of those traits.
Garland is usually described as a moderate liberal, engaging on the bench and getting along with conservative colleagues on the D.C. Circuit. He has a background in both antitrust and administrative law as well.
Notable cases: Last June, Garland wrote the D.C. Circuit Court’s decision that Guantanamo detainee Huzaifa Parhat was unfairly classified as an enemy combatant. When Roberts still sat on the D.C. Circuit, he and Garland concurred on an opinion that granted a former D.C. Metro employee the right to sue for disability discrimination. Unlike Roberts, he voted not to rehear a case against a California developer who was challenging the Endangered Species Act over a dispute with the Arroyo toad, and he has generally sided with environmentalists.
Kathleen Sullivan, 53, is the former dean of Stanford Law School, teaches constitutional law there, and has authored the nation’s leading constitutional law casebook. She is chair of the National Appellate Practice at Quinn Emanuel Urquhart Oliver & Hedges. A one-time Marshall scholar, Sullivan’s constitutional knowledge is prodigious. Her former law professor Laurence Tribe once called Sullivan “the most extraordinary student I had ever had.” The National Law Journal has twice named her one of the “100 Most Influential Lawyers in America” and has twice named her as one of the “50 Most Influential Women Lawyers in America.” Today Politico reported that she was a lesbian; she did not comment.
Sullivan is a gifted oral advocate and has argued five cases at the Supreme Court, notably several important business cases in recent years, including an appeal representing wineries challenging bans on the direct shipment of wine to consumers living out of state. She was also a member of the legal team that challenged the McCain-Feingold campaign finance law. Sullivan has filed amicus briefs in two seminal gay rights cases at the Supreme Court, Lawrence v. Texas and Bowers v. Hardwick, and authored an amicus brief in a case involving the constitutionality of gay marriage in California. She is also well-known for her pro bono work in high-profile cases involving civil rights and civil liberties. In a brief she co-authored in a landmark case about warrantless NSA wiretapping, she wrote, “Whatever inherent powers the President might have under Article II, they do not include the power to conduct a warrantless domestic surveillance campaign, of indefinite duration and unlimited scope, where a duly enacted statute expressly prohibits such conduct.” (Disclosure: Sullivan was a professor of Dahlia Lithwick’s at law school.)
Margaret McKeown, who is about to turn 58, was the first woman partner at the Seattle law firm Perkins Coie, where her 23-year practice concentrated on antitrust and intellectual property law and her clients included Boeing and Citicorp. Bill Clinton nominated her to the 9th Circuit in 1996. After Republicans refused to bring the nomination to a vote, Clinton had to nominate her again in 1997. In the end, she was confirmed by a wide margin of 80-11.
McKeown’s nomination ran into trouble, initially, because of her pro-bono legal work for the Washington Association of Churches. In 1994, she helped the mainstream church group work with the ACLU in trying to declare unconstitutional two citizen initiatives, written to deny gay people protection from discrimination based on sexual orientation.
McKeown also came under attack from conservatives for signing a resolution urging the American Bar Association to support Roe v. Wade.
Notable cases: In 2007, McKeown wrote the 9th Circuit opinion that barred an Islamic charity from showing, with a confidential government document, that the National Security Agency had wiretapped its offices without a warrant. McKeown accepted “the need to defer to the executive on matters of foreign and national security” and wrote that judges “surely cannot legitimately find ourselves second-guessing the executive in this arena.” She rejected, however, the Justice Department’s argument that “the very subject matter” of the litigation was a state secret—a position the Obama administration has continued to take.
In 2007, McKeown pushed the Bush EPA to update its water-pollution guidelines under the Clean Water Act, by recognizing the effect of new technology. The EPA position that it did not have to take new technology into account “strains credulity to the breaking point,” McKeown wrote. In the famed challenge to the Pledge of Allegiance that came before the 9th Circuit, McKeown voted for a rehearing of the three-judge panel ruling that under God in the pledge violated the Constitution’s separation of church and state. McKeown did not say that she thought the panel had gotten the case wrong but that it presented “a constitutional question of exceptional importance.”
Hillary Clinton, 61, was active in law for two decades between graduating from Yale Law School in 1973 and moving to Washington as first lady in 1993. After a brief stint working for the House judiciary committee on the impeachment of President Richard Nixon, she moved to Arkansas to reunite with law school flame Bill Clinton, where she taught at the University of Arkansas law school and joined the Rose Law Firm. She became the first female partner there in 1979 and continued to practice during Bill Clinton’s tenure as governor. She has remained in Washington for the last 16 years, including eight as the junior senator from New York and now as Obama’s secretary of state.
Much of Clinton’s early work was devoted to advocacy for children, including championing the Children’s Defense Fund. She co-founded the Arkansas Advocates for Children and Families. Her first scholarly article, published in the Harvard Educational Review, was titled “Children Under the Law” and argued that children should not be categorically treated as incompetent to make legal decisions up until their 18th birthdays. (She elaborated on this topic in future articles, stating that courts should intervene in family cases only in extreme circumstances but that children in such cases should be treated as gradually more independent as they mature.)
At the Rose Law Firm, Clinton focused on intellectual property and patent infringement cases. She also worked in business litigation, including work for Wal-Mart and TCBY. (It was also at Rose that she billed 60 hours of work to Madison Guaranty, which later became a subject of intense scrutiny during the Whitewater investigation.) The National Law Journal twice named her one of the 100 most influential American lawyers. If Clinton were to get the nod, her pro-choice record would be scrutinized—along with plenty of other positions she has taken on the campaign trail.
Martha Minow, 54, is a star legal academic at Harvard Law School and a leading expert on family law, a field she entered in 1980 despite being told it would stereotype her. “She helped bring alive the field,” former Stanford Law School Dean Kathleen Sullivan (a fellow short-lister) said in a 1997 profile in the Boston Globe. Minow’s interest in making sure that kids grow up in stable families, she explained in a 2001 op-ed, led her to become a plaintiff in a suit that challenged the constitutionality of a voter initiative in Massachusetts that tried to ban same-sex marriage. “Research makes it irrefutable that a definition of family founded solely on an official marriage of a man and a woman is out of touch with how people actually live,” she wrote.
Minow has also been active in human rights, serving on the Independent International Commission on Kosovo, which tried to understand whether the atrocities committed there in the 1990s could have been prevented, and helping to launch a program of the U.N. High Commission for Refugees called Imagine Coexistence, which assessed efforts to reintegrate refugees after violent ethnic conflict and produced a book.
Her latest book, Just Schools, is about how schools can pursue social equality and accommodate students from different racial, ethnic, and religious backgrounds. She talks about those themes here. As a teacher, she takes steps to make sure that all kinds of students speak up in class. “I am quite conscious to count seconds, usually 25 to 30, between raising a question and finding a volunteer,” she told the New York Times in 2004. “Some people who take time to think might have better things to say. Women typically won’t shoot up their hands first.”
Minow is close to Obama, whom she mentored when he was a law student at Harvard. Her father, former FCC Commissioner Newton Minow, gave Obama his first legal job, hiring him as a Chicago law firm summer associate. She has been a strong backer of the president, but she also speaks with her own voice: In an op-ed in March, she warned the government to make sure it is strictly accountable for stimulus spending. She told Slate last year that she didn’t think Obama would necessarily favor moderate judicial picks over strongly liberal ones. Her own motto, from Justice Thurgood Marshall, for whom she clerked, is “remember they’re human beings,” referring to the people who come before courts. It’s akin to Obama’s declaration that he is looking for a justice who thinks about “how our laws affect the daily realities of people’s lives.” (Disclosure: Minow also clerked for the late Judge David Bazelon, who was Emily’s grandfather.)
Teresa Wynn Roseborough, 50, is chief litigation counsel at MetLife Inc., leading a department of 62 associates and supervising MetLife’s litigation activities worldwide. Her specialties include constitutional law, class actions, telecommunications, and government regulation law, and she has argued before state and federal courts as well as at the Supreme Court. She graduated from UNC-Chapel Hill law school in 1986, where she edited the law review.
In addition to her solid footing in the outside-the-beltway business community, Roseborough also has strong D.C. connections. She worked as one of the principal attorneys for the Gore campaign during the 2000 presidential election and has served on the board directors of the American Constitution Society with now-Attorney General Eric Holder. Roseborough served as deputy assistant attorney general in the Office of Legal Counsel in the Justice Department from 1994-96 and as a law clerk for Justice John Paul Stevens in 1987. In 2003, she was named by American Lawyer magazine as one of the 45 highest-performing members of the private bar under the age of 45.
If President Obama means what he says about wanting Supreme Court justices with dramatically different work experiences and backgrounds, Roseborough’s non-Ivy, nonjudicial background might be very compelling. That she is whip-smart and an African-American woman are icing on the cake.
David Tatel, 67, sits on the U.S. Court of Appeals for the District of Columbia Circuit, long considered a sort of feeder court for the Supreme Court. Before joining the federal bench, Tatel worked in civil rights, including a stint as director of the National Lawyers’ Committee for Civil Rights Under Law. He spearheaded programs to advance the rights of minorities and the poor through housing, voting rights, education, and employment litigation. He also served as director of the Department of Health, Education, and Welfare’s Office for Civil Rights in the Carter administration. At 67, Tatel is widely believed to be too old to be elevated to the high court, and the fact that he is a white male will hardly be an asset this time around. If tapped for a SCOTUS seat, Tatel would become the first blind justice.
Notable cases: Tatel has written several opinions that have gone on to become blockbusters at the Supreme Court, including an important test of the Voting Rights Act heard just last week. Tatel wrote 161 pages for a unanimous panel, upholding Section 5 of the act from a constitutional challenge. The Supreme Court has yet to decide that case. In 2005, he voted to uphold a lower court’s contempt decision against New York Times reporter Judith Miller, finding the grand jury’s need for Miller’s testimony outweighed the burden of disclosure on newsgathering. He wrote, “[J]ust as attorney-client communications ‘made for the purpose of getting advice for the commission of a fraud or crime’ serve no public interest and receive no privilege … neither should courts protect sources whose leaks harm national security while providing minimal benefit to public debate.” In a landmark environmental case from 2005, Tatel’s dissent was vindicated when the Supreme Court found that the EPA had failed to comply with the mandate of the Clean Air Act when it refused to regulate greenhouse gas emissions. In 2003, Tatel also dissented in an important war on terror case when he sided with those seeking, though a FOIA request, the names of post-9/11 detainees and their attorneys. Tatel, dissenting from the majority’s opinion denying the request, wrote that the “court’s uncritical deference to the government’s vague, poorly explained arguments for withholding [information] as well as its willingness to fill in the factual and logical gaps in the government’s case, eviscerates both FOIA itself and the principles of openness in government that FOIA embodies.” (Disclosure: Tatel is an acquaitance of Dahlia Lithwick’s.)
Lisa Madigan, 42, is a rising star in Illinois politics, a friend and former colleague of Barack Obama’s from the Illinois state Senate, and the current attorney general of the state. She is said to be considering a run for governor, and the New York Times named her among a roster of down-the-road candidates for the first female president.
Consider this for Madigan’s column: She successfully argued a case before the Supreme Court, the first attorney general to personally do so in 25 years—while seven months pregnant. The case, Illinois v. Caballes, gave police the authority to use drug-sniffing dogs on the outside of a stopped vehicle without a warrant or reason to suspect possession.
As Law.com notes, Madigan has other serious law-and-order bona fides, such as advocating for stricter supervision and registration of sex offenders, stronger methamphetamine laws, and scrutiny of the state’s gaming industry. Prior to joining the state senate, Madigan specialized in employment law at a Chicago firm and as attorney general filed an amicus brief in support of the University of Michigan’s affirmative action policy in Grutter v. Bollinger. She also challenged former Illinois Gov. George Ryan’s commutation of 32 death row inmates on legal grounds—and lost—and recently came under fire for not aggressively investigating 25 cases relating to a Chicago police commander accused of torture.
Like Obama, Madigan has a background in community organizing. She also taught young women in South Africa during apartheid.
Harold Koh, 54, was the dean of Yale Law School until March, when he stepped down after being tapped to serve as Hillary Clinton’s chief legal adviser at the State Department, a position for which he has yet to be confirmed. He is a star human rights litigator who forced the federal courts to grant rights to Haitian refugees held at Guantanamo Bay in the mid-1990s, though the Supreme Court eventually backed the government’s policy of returning the refugees to Haiti without asylum hearings. From 1998 to 2001, Koh served as President Bill Clinton’s assistant secretary of state for human rights.
Before joining the faculty at Yale, in the 1980s Koh practiced law at Covington & Burling and worked in the Reagan Justice Department, in the Office of Legal Counsel. He clerked on the Supreme Court for Justice Harry Blackmun. His family came to the United States in the 1950s, when Koh’s father was South Korea’s minister to the United States, and chose to stay here after South Korea’s 1961 coup.
As a pre-eminent scholar of international law, Koh is a leading proponent of the notion that the United States can learn from the laws and judicial precedents of other countries. He has written and spoken about the role of “transnational jurisprudence”—a body of law that spans different countries and international courts—and has shown that since the founding, the decisions of foreign courts have influenced the development of American law. The far right attacked Koh’s views on international law after Obama tapped him for the State Department legal post, even though they largely match the positions taken by a majority of the Supreme Court in cases like Roper v. Simmons, which abolished the death penalty for defendants who commit crimes as juveniles. In a friend-of-the-court brief filed in that case, Koh attached the juvenile death penalty for clashing with American interests. We’ve weighed in about the Koh bashing on Slate here and here. If appointed, Koh would become the first Asian-American to sit on the Supreme Court. (Disclosure: Emily Bazelon is a fellow at Yale Law School.)
Leigh Ingalls Saufley, 54,is the chief justice of the Maine Supreme Judicial Court and the first woman and youngest member of the court ever to be appointed chief justice. A graduate of the University of Maine-Orono and the University of Maine School of Law, Saufley logged 10 years of service in the state’s Attorney General Office. As chief justice, Saufley has spearheaded efforts to bring mental health courts to Maine, giving offenders the option of accepting mental health treatment in lieu of going to jail. She also supported a Maine law that would restrict how much information the public receives about a jury, if a judge deems the information should be kept secret.
Notable cases: In 2007, she voted to approve a state statute requiring drivers involved in fatal car crashes to submit to blood tests for alcohol and other drugs, finding the privacy interests of drivers did not outweigh the state’s need to determine whether they were using alcohol or other drugs prior to fatal crashes. In 1999, she voted with a unanimous court to dismiss a sexual abuse suit against the Jehovah’s Witnesses, because to hold the church responsible would require delving into matters of redemption and forgiveness, ”an inquiry that would require secular investigation of matters that are almost entirely ecclesiastical in nature.” In 1999, she also authored an opinion finding voucher funding of religious schools unconstitutional. If the president really wants a Supreme Court justice who is female, as an outsider with a dollop of David Souter’s New England pragmatism, Saufley is an interesting choice.
Myron Thompson, 62, is a district judge in Alabama. President Carter chose him in 1980 at the age of 33 in an effort to put a black judge on Alabama’s federal trial court. Thompson’s opinions on voting rights and on who has standing to bring lawsuits are regularly invoked by other courts. He’s also the judge who was undaunted by Alabama Chief Justice Roy Moore when Moore insisted on displaying a massive granite Ten Commandments monument in the courthouse. Thompson ruled that effort a violation of the constitutionally required separation between church and state. The religious right called for Thompson’s impeachment, but the 11th Circuit repeatedly upheld his rulings. Like the stone monument, Moore was finally removed from Alabama’s court.