Tom Goldstein on President Obama’s Nomination to the Supreme Court in his Second Term

February 14th, 2012

“President Obama will also have a strong desire to pick an ethnically or racially diverse nominee.  It would be disappointing for the nation’s first African-American President to make two white appointments, leaving the Court with seven white members.”

What is Tom Goldstein talking about? Two white appointments? Is Justice Sotomayor white? I have no clue anymore.

A more diverse Court is a better legacy.  Given that the President already appointed the first Latina Justice, most likely is an African-American or Asian-American nominee.  That said, I think race and ethnicity are plus factors, rather than an imperative like gender.

In sum, here are the criteria I think the President will be using.  The person must of course be highly qualified intellectually.  Beyond that, the candidate must be (a) female, (b) a Democrat, (c) reasonably well known to the President’s advisors, (d) between the age of forty-two and fifty-two, (e) a lawyer (so no Susan Rice), (f) have substantial interest and experience in the kinds of issues that the Supreme Court decides (so no Samantha Power), and (g) have sufficient credentials.  Those credentials would be (i) a federal appellate judgeship, (ii) federal or statewide electoral office, or (iii) a senior federal executive position.  There also is a substantial preference that the nominee be African American or Asian American.

This is how Tom creates “chatter.” Every name on this list will be “talked about.” In that sense, Tom sets the agenda 10 months before the election. He is very savvy.

I heard a very funny joke about Judge Kozinski. In the early 1980s Kozinski was working as a special counsel to President Reagan. The Court of Federal Claims was being set up. He called the White House counsel and asked if he was in the running for a position on the Court. He was told no. He called again a few weeks ago and asked the same question. He was told no. He called again a third time, and the Counsel said “Yeah, I’ve heard your name being discussed.” He was appointed the first Chief Judge of the Court. Three years later in 1985 at the age of 35 he was appointed to Anthony Kennedy’s seat on the 9th Circuit. And the rest is history.

My point is, Goldstein is just setting the template of names to consider. very, very shrewd.  When the short listed is linked, he will link back and say, way back in February of 2012, look how prescient I was (by listing every conceivable jurist!).

And don’t worry, if someone is picked not on this list, he has an out:

Also, credentials can change, so new candidates can obviously emerge over the next three years.

Phillip Tetlock would laugh.

Update: One day later, the ABA Journal takes the bait, and the chattering continues.

SCOTUSblog does some prognosticating and says California Attorney General Kamala Harris could be the next nominee tapped for the U.S. Supreme Court, replacing Justice Ruth Bader Ginsburg. There’s one big problem, though: Harris may not want the job.

Blog founder Tom Goldstein starts with the assumption that President Obama will win a second term. Ginsburg will likely retire next, he says, and even sets the likely date for her announcement: April 20, 2015.

Goldstein is sure that Ginsburg’s replacement would be a woman, and says she will most likely be African-American or Asian-American. She will probably be between the ages of 45 and 55 at confirmation. And she cannot be associated with a strong ideology. The age factor will likely eliminate several qualified federal appeals judges, he says.

“In the lists of names, only one truly stands out as checking every box: Kamala Harris,” Goldstein writes. Like the president, she is biracial, and she will be 50 years old in 2015. She is liberal, but she has a law enforcement background.