May 13, 2009
Prediction: President Obama Will Nominate Judge Diane Wood of Seventh Circuit
With all the talk about whom the President should nominate, there's been less focus on whom the president will nominate. You can look at the Intrade predictions market here, which reflects Judge Sotomayor in the lead, with SG Kagan, and Judges Wood and Wardlaw, behind. (My personal choice, Pam Karlan is trading prettly low, and Kathleen Sullivan, who also would make an excellent choice for the Court, barely registering---it is kind of strange how her name has dropped off so quickly.)
Though the field is still open, and anything can happen, here are my top five reasons why I believe Judge Wood, rather than Judge Sotomayor or the other names that have been mentioned, is more likely to get the nomination for the first open seat.
1. The President is coming into this process with the likelihood of having another 1-2 or more appointments to the Court. So he does not have to find a single candidate who can satisfy all the things he is looking for. (Recall how Justice Breyer looked like he was going to get the nod from Clinton, only to see the choice go to Justice Ginsburg first, before Justice Breyer got the next nomination). So the pressure to choose an Hispanic nominee, for example, might be put off until the next time. I take it that the greatest pressure (and I'd say, the dire need) is for the President to choose a woman now, and so that becomes a constraint within which he will work.
2. The President has gone to his trusted circle (and those who can be vouched for from his trusted circle) whenever he can for sensitive positions. This explains Valerie Jarrett, Cass Sunstein, and others. When he's gone outside his circle, as with the choice of Vice President Biden, there's greater room for tension and mismatch. Judge Wood comes from the same University of Chicago circles, and she can be vouched for. She would not be a "stealth" Justice, as Justice Souter was.
3. Nominating Judge Woods gets a progressive judge on the Court using the Roberts/Alito playbook. If you choose someone who has a truly excellent reputation as a judge, it becomes very hard for opponents of that person to block the nomination on ideological grounds. If the real goal is getting a progressive leader on the Court, this is the easiest path.
4. The other nominees present harder paths to nomination. There have been attacks on Judge Sotomayor's temperament and ability to work with other judges. My colleague Rob Kar has responded to these attacks, and vouches for the judge's intelligence and temperament. But it will be a battle, and one that would be fought over whether the judge, whom opponents will say would have been chosen for her ethnicity, is an outstanding judge. (See Eric Posner's evaluation of Judge Sotomayor's appellate record using Gulati and Choi's framework, concluding the judge is about average, or slightly below average, on a number of measures.) President Obama could have this fight, and probably win it, but the question is whether he wants to spend his political capital on this when he is fighting over health care, the economy, the environment, and so many other things in Congress right now. A Roberts-like hearing moves quickly, and gets the country back to other business.
5. The president is likely to resist the temptation to go bold. Going bold is choosing someone like Pam Karlan, who is brilliant and outspoken. Pam hasn't trimmed her sails in what she's said, and there would be plenty of those YouTube moments to be dissected by 24-hour cable news and a Senate Judiciary minority led by Senator Sessions. As with Sotomayor, Karlan likely could be confirmed to the Court with a big push by the President. This would be the nomination progressives would love. But my thinking is the president wants to preserve some of his capital for everything else, and with Wood he gets an excellent choice at very little cost.
Or I could be totally wrong on everything.