Litigation

High Court Search: ?Slim? Odds for Elected Officials

By Peter Hardin

In President Obama’s search for a successor to Justice John Paul Stevens, don’t expect him to pick someone for the Supreme Court who has served as an elected official–even as an elected judge.

CBS News’ Jan Crawford reports on Obama’s latest “short list” of potential nominees, and she says that ethics allegations could be exploited to attack a nominee who held elective office. That, in turn, could become a distraction when the political stakes are high:

“Chances are slim that an elected official — someone who’s been through the rough-and-tumble world of politics — will get the nod, administration sources say. In this hyper-charged political environment, the White House doesn’t want the risk of potential distractions from even minor ethics allegations because of a candidate’s campaign contributions, fundraising or political allies.

“Leah Ward Sears, for example, was hit with ethics charges after she accepted improper contributions during her 2004 campaign for the Georgia Supreme Court.”

Crawford’s account brings to mind an interesting question. Where would this overall approach leave someone like retired Justice Sandra Day O’Connor if he or she was under consideration for the high court today? Justice O’Connor was an elected state legislator earlier in her career.

The president has met with several potential nominees, according to a New York Times article, and was expected to take briefing memos and background papers on a vacation trip to North Carolina this weekend. Various reports put his “short list” at nine or 10 individuals.

The connections of money, elections and judges also gets attention in Politics Daily, where columnist Andrew Cohen included this blunt question among nine he would like to see a president ask of potential nominees:

“What is your position on the proliferation of judicial elections at the state level in America? Do you believe they diminish the stature of local judges and, if so, what would you suggest to supporters of such elections who believe they ultimately generate more malleable judges?”

Cohen went on to explain, “Judicial elections are a scourge upon the nation. Any Supreme Court candidate who thinks they aren’t destroying faith in the judiciary doesn’t deserve to sit as a Justice.”

An “ever-evolving” list of leading contenders for Obama’s nomination, published by CNN, had these names: Solicitor General Elena Kagan; appeals court judges Diane Wood, Merrick Garland, Sidney Thomas, and Ann Claire Williams; Michigan Gov. Jennifer Granholm; Homeland Security Secretary Janet Napolitano; Georgia former Chief Justice Sears; California Supreme Court Justice Carlos Moreno; and Harvard Law School Dean Martha Minow.

Democrats “are hoping to put the court itself on trial” by exploiting populist anger about the economy, and disapproval of the court’s Citizens United decision, in the confirmation hearings, according to a Wall Street Journal article.

In the Washington Post, an article suggested Judge Garland could face opposition on the left if he was tapped by Obama for the Supreme Court.

Learn more about the potential nominees from Gavel Grab, from articles and commentary in the Gavel Grab daily media report, and from Justice at Stake’s judicial nomination news page.

Full post as published by The Gavel on April 23, 2010 (boomark / email).