If I Were Obama, I'd Nominate

Portfolio Media. Inc. | 648 Broadway, Suite 200 | New York, NY 10012 | www.law360.com Phone: +1 212 537 6331 | Fax: +1 212 537 6371 | [email protected] If I Were Obama, I'd Nominate ... By Marius Meland Law360, New York (May 04, 2009) -- We asked the leaders of appellate teams at top law firms to name the candidate for the U.S. Supreme Court they'd pick if they were President Obama. William D. Barwick Sutherland Asbill & Brennan LLP, partner and head of the appellate practice group President Obama would do well in selecting Chief Justice Leah Ward Sears of the Georgia Supreme Court to replace Justice Souter as an associate justice on the U.S. Supreme Court. She has the intellect, wisdom and judicial temperament needed on the court. She also brings many of the "life experiences" that are on the president's checklist. In addition, her appointment would remedy the under-representation of both women and African-Americans on the court. For any potential critics on the right who may argue that she is too liberal, a careful reading of her decisions in business cases shows a moderate to conservative view of commercial disputes. She has repeatedly won re-election in contested, nonpartisan judicial races in perhaps the reddest of red states and has been opposed unsuccessfully by opponents who have tried labeling her as "soft on crime." On the Georgia Supreme Court, she has worked hard to build a consensus among fellow jurists, where possible, but she has been unafraid to issue a lone dissent when she thought it appropriate. At a time when the court will likely have more retirements, she is the right age — 53 — to be selected. Daniel R. Benson Kasowitz Benson Torres & Friedman LLP, partner Solicitor General Elena Kagan would be an excellent choice to succeed Justice Souter. She is a brilliant legal scholar and shares the president's approach to legal and constitutional issues. She most recently distinguished herself as dean of Harvard Law School, where, against all odds, she fostered philosophical and political diversity, tolerance and collegiality among the faculty; attracted top-flight new professors; renewed alumni loyalty; and improved student morale. The qualities that enabled her to achieve these extraordinary accomplishments would surely serve our country well on the Supreme Court. Michael M. Berger Manatt Phelps & Phillips LLP, co-chairman of the appellate practice group The nominee should be a woman, and there are a number of qualified candidates. My choice would be professor Kathleen Sullivan. She is, by all accounts, one of the brightest constitutional scholars available, an essential quality for a seat on the Supreme Court. Of particular importance is that she is not a federal appellate judge. With respect to the justices now sitting, all of them came from the same federal appellate court incubator. That leads to a narrowed view of the law, as the cases that they spent their judicial careers dealing with generally revolved around federal statutes. While useful, the court needs more diverse backgrounds to round it out. Sullivan would be a good start toward that end. Her view of the court is from the outside — as a practitioner and academic analyst. On the practice side, Sullivan is an experienced Supreme Court litigator and can provide both insight to the court and empathy toward those appearing before it. She has represented a wide variety of clients before the Supreme Court and lower courts, ranging from pro bono clients in constitutional cases to various business interests. The ability to deal with such a disparate clientele provides a fitting background for the court. As President Obama has said, he wants to nominate people who know how laws affect people's lives. Sullivan's ability to deal with the breadth of constitutional issues facing the country and to do so from the viewpoints of different interest groups will serve the country well. Robert L. Byer Duane Morris LLP, chairman appellate practice group I would urge President Obama to nominate Gov. Jennifer Granholm or someone like her in experience and temperament. The Supreme Court has suffered for not having anyone with practical political sense. We have enough justices with backgrounds as appellate judges and academics, and Granholm would bring some “experiential diversity” to the court. I like the idea that she has grappled with difficult and even impossible issues from an executive position; it affords a kind of judgmental maturity it might be hard to come by any other way. In addition, the practicing bar and trial judges would benefit from having a Supreme Court justice whose experience as a lawyer would permit more informed decisions on procedural issues and other issues that affect the handling of cases in the trial courts. Granholm, in addition to being a first-rate lawyer, brings all those attributes. Another choice with similar background is Gov. Deval Patrick, but I like Granholm's experience — similar to Justice Souter's — as an elected state attorney general, as compared with Patrick's experience as an appointed U.S. Department of Justice official, a history that he shares with current members of the Supreme Court. John Bursch Warner Norcross & Judd LLP, chairman of the appellate practice group Most of the media outlets and blogs speculating about Justice Souter's likely replacement have assumed that President Obama will nominate the most liberal candidate who can survive the confirmation process. But what if Obama kept his campaign promise of being a post-partisan politician and instead nominated the most qualified individual? With that approach, it would be impossible to ignore Maureen Mahoney, who leads the appellate and constitutional practice group at Latham & Watkins. According to Wikipedia, Mahoney announced at age 8 that she wanted to be an attorney, just like her father, who had a personal injury practice. After a distinguished law school and early legal career, Mahoney became deputy solicitor general, where she was a colleague of future Chief Justice John G. Roberts. Since then, Mahoney has been favorably compared to the chief justice for her intellect and skill, frequently complimented as one of the finest Supreme Court oral advocates in recent memory. President George H.W. Bush nominated her to serve as a federal district court judge for the U.S. District Court for the Eastern District of Virginia, but the Senate did not act on her nomination before the end of Bush's presidency. So why should Obama consider Mahoney? First, Mahoney is brilliant, and that should be the No. 1 criteria for any Supreme Court nominee. Second, Mahoney is likely to be a judicial pragmatist and moderate. Indeed, conservatives have been wary about Mahoney since she represented the University of Michigan in the affirmative action cases the Supreme Court decided earlier this decade. Third, Mahoney's nomination would represent a true olive branch to congressional Republicans after the Senate's shameful failure to grant Mahoney even the courtesy of a hearing on her earlier nomination, despite the lack of any noted opposition. Given the complete collapse of bipartisanship since the opening days of Obama's presidency, a Mahoney nomination is one of only a very select few actions that the president could take to reinvigorate bipartisanship in Washington and thus keep his pre-election promise. Perhaps it is folly to think that President Obama would place bipartisanship and qualifications above a political litmus test. But a Justice Maureen Mahoney would be a worthy addition to the Supreme Court and would bring honor and distinction to the Obama presidency. Linda Coberly Winston & Strawn LLP, partner in the litigation practice and vice chairwoman of the appellate and critical motions practice group Although this first appointment by President Obama will not likely cause a dramatic shift in the court's decisions, it does represent the first in what will likely be several appointments that will make this president's mark on the court. There are many excellent candidates for the nomination — in government and academia, as well as on the federal bench. Following the departure of Justice Sandra Day O'Connor, the court no longer has any members with experience as legislators; that could be an interesting direction for this nomination to take. It's likely that the president will appoint a woman — perhaps Seventh Circuit Judge Diane Wood or Chief Justice Leah Wood Sears of the Georgia Supreme Court. It's unfortunate that even at this point in our history, we have only had two women on the nation's highest court. I'm looking forward to the day when women's voices are so common on the federal bench that we no longer analyze appointees in terms of sex. Morgan Chu Irell & Manella LLP, partner, chairman of the litigation practice in Los Angeles Elena Kagan is the best pick. She is a brilliant and compassionate consensus builder. Anthony J. Dain Procopio Cory Hargreaves & Savitch LLP, partner President Obama should choose a lawyer with a strong constitutional law background. However, the candidate need not be a current judge. Prior to the appointment of Chief Justice Warren Burger in 1969, there had been a long history of presidents appointing people with experience in policy making positions. For example, Earl Warren was serving as California's Governor at the time he was nominated by President Eisenhower to serve as Chief Justice. It can be argued that candidates who have experience in elective positions are more in touch with the populace, and less likely to be dogmatic. As the President has said, his ideal candidate would have empathy for ordinary Americans. Those with elective office experience often mature and develop with the nation as it matures and develops.

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