Justice John Paul Stevens’s announcement that he’ll retire from the Supreme Court this summer means it’s time to play the Beltway’s new favorite parlour game: Guess the Next Justice. We asked the 30 Washington lawyers we consider the best in the business to play a round. They’ve stuck almost exclusively to the three people reportedly on President Obama’s short list: Solicitor General Elena Kagan, Judge Merrick Garland of the DC Court of Appeals for the Federal Circuit, and Judge Diane Wood of Chicago’s Seventh Circuit Court of Appeals, with Kagan and Garland as the clear frontrunners. Here are the responses we’ve received so far. We’ll update if more of our top lawyers weigh in.
Wiley Rein’s Richard Wiley, a prominent Republican lawyer, jokes that “the President hasn’t called me for a recommendation on this one.” Nonetheless, he submits, “The one guy that’s always impressed me tremendously is Judge Merrick Garland. I think he’s a very smart, reasonable guy.”
Hogan & Hartson partner Robert Bennett says, “Both Kagan and Garland would be wonderful additions to the court. I know them both and have the highest regard for their fairness, skill, knowledge and most importantly, their integrity.”
WilmerHale’s Jamie Gorelick, who worked with Garland when they were both at the Justice Department, is one of his strongest supporters: “I think that the President will nominate Judge Garland because he has the intellectual depth to be a leader on the Court, the varied experience to bring to bear on the cases before the Court, the deep familiarity with the issues before the Court, and the personal qualities that would allow him to forge majorities for positions that might otherwise command only four votes. He’s respected among academics, within the legal profession, and among those who have served the public interest and across the aisle.”
David Cynamon, a partner at Pillsbury Winthrop who represents Guantanamo Bay detainees, shakes things up a bit. He says he doesn’t doubt Obama will stick to the rumored short list, perhaps choosing Garland or Wood. But he adds, “I’d love to see him nominate David Tatel [of the U.S. Court of Appeals for the DC Circuit] who’s both a superb judge and a liberal, but I’m sure that the latter fact, as well as his age, is disqualifying.”
Warren Gorrell, chairman of Hogan & Hartson, seconds that Judge Tatel is a long shot. He predicts Obama will go with Garland.
Criminal defender David Schertler of Schertler & Onorato also believes Garland is the frontrunner.
Says employment-discrimination and civil-rights lawyer Debra Katz: “My guess is that Garland will be President Obama’s pick because he’ll face less opposition in a confirmation hearing than either Kagan or Wood.” However, Katz’s personal favorite for the job is Harold Koh, currently the legal adviser at the State Department. She points out that he’d be the first Asian-American justice, but is a long shot given his more liberal views.
Thomas Goldstein, co-chair of Akin Gump’s Supreme Court practice and a commentator on all things SCOTUS, believes Kagan is the shoe-in. “I think she’d be tremendous.” He lays out his reasons for betting on the solicitor general on his Web site SCOTUSBlog.
Cheryl New, one of Washington’s go-to divorce attorneys, is also in the Kagan camp: “She brings a different light to the bench. She’s been the dean of Harvard Law, she’s been in private practice, she knows the government side of things. She’s relatively young. I think she might just bring a fresh look. P.S. She’s a woman!”
Ronald Aucutt, a partner at McGuireWoods, says Kagan’s academic background “would add diversity. I also think she’s very smart. . . . From a political standpoint—which unfortunately is how everything must be evaluated these days—she should be confirmable, because she was recently confirmed [as Solicitor General].”
And personal-injury lawyer Patrick Regan says if he were betting, his pick would be Kagan: “The only reason, frankly, being age. Not that [Judges Garland and Wood] are old, but she’s the youngest. . . . Working till 80 is routine on that court.”
Still, WilmerHale securities partner William McLucas isn’t holding his breath on any of the popular picks: “The administration will identify someone who’ll be a total surprise.”