If I Were Obama, I'd Nominate

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.

The President should not be deterred by conservative concerns that "empathy" is code for "activist" or "liberal."

The majority of Americans chose a liberal President. They, and he, have the right to choose a liberal Justice.

The majority of Americans would agree that the Warren Court's "activist" tenure resulted in constitutional sea changes that we now view as axiomatic to democracy: Brown v. Board of Education 347 U.S. 483 (1954), banning segregation in public schools; Gideon v. Wainwright, 372 U.S. 335 (1963), providing counsel to indigent criminal defendants ; Miranda v. Arizona, 384 U.S. 436 (1966), requiring that a defendant in custody be advised of his constitutional rights prior to interrogation; Loving v. Virginia, {388 U.S. 1} (1967), banning racial limitations to marriage. In any event, labels don't often fit a nominee once he or she is confirmed. Warren, like Souter, was chosen by a Republican President for his staunch conservative views. Both developed into staunch liberal voices.

President Obama should also be sensitive to the benefit of having a Court that more accurately reflects the society it serves.

This means recognizing that gender and ethnic diversity are important to developing a well rounded Court. The Court would be the better for having another woman, and even more so if the woman were minority. Given his calm, assured presence, I am sure that President Obama will choose wisely.

An excellent choice among those who have had elected experience would be Governor Jennifer Granholm.

Laurie Webb Daniel

Holland & Knight LLP, partner and appellate team co-chairwoman

It's not just about replacing Justice Souter. It's also about replacing Justice O'Connor. Compassion is a trait President Obama attributed to Justice Souter in his recent press conference, but this word also has been used to describe Justice O'Connor. When the Judiciary Committee addressed the nomination of Sandra Day O'Connor in 1981, Chairman Strom Thurman focused on compassion as a key O'Connor characteristic: "We seek a person of compassion — compassion which tempers with mercy the judgment of the criminal, yet recognizes the sorrow and suffering of the victim; compassion for the individual but also compassion for society in its quest for the overriding goal of equal justice under law."

This compassion connotes balance, and I believe that the president should nominate someone who possesses the compassion and balance that Justice O'Connor brought to the court.

Just as important is a qualification held by Justice O'Connor, but not by Justice Souter. Justice O'Connor brought to the court the perspective and experiences of a woman. Considering the number of women lawyers and judges in the United States today, it is shameful that our highest court presently has only one woman justice.

The next Supreme Court nominee should be a woman so that the tribunal that decides the most important issues facing our society will be more representative of — not just the legal profession — but also our overall population. And I think that President Obama should nominate a Hispanic woman, so that the composition of the Supreme Court will better reflect our nation's ethnic diversity.

Judge Sonia Sotomayor of the Second Circuit fits the bill — a smart, accomplished Hispanic woman judge with links to both political parties, an array of real world experiences and a deep knowledge of the legal issues arising out of the federal courts.

In my opinion, President Obama should nominate Sonia Sotomayor for the new Supreme Court opening because she would bring experience, compassion and balance to the Court in the O'Connor tradition.

Clifton S. Elgarten

Crowell & Moring LLP, appellate practice group

Brilliant is the first criterion. There's no reason to settle for less. The justice must also be attentive to the idea that law exists first to serve people, not institutions or abstract ideas. This second criterion is what made Bill Brennan a great justice.

Third criterion: insight into how court decisions will affect practice in appellate and trial courts, and ripple through into the lives or real people in the real world. Fourth is a mind open to new ideas and arguments.

Fifth, self-knowledge, including of one's own gut, in order to explain accurately why a particular case was resolved as it was, making the precedent useful for lower courts, lawyers and perhaps even government officers and citizens.

And sixth, the ability to write in a way that gets the point across clearly, directly and usefully — like Scalia, or Breyer, or Posner or Easterbrook. Do you want a name? How about Cass Sunstein.

Larry Fox

Drinker Biddle & Reath LLP Solicitor General Elena Kagan would be a perfect selection. Brilliant, a great teacher, a dean who brought not just peace but productivity and excellence to Harvard Law School, Kagan has the judgment and temperament to fill the position. Her selection would also break the current stranglehold of Supreme Court justices all of whom are former judges. A breath of fresh air and just as independent minded as Justice Sandra Day O'Connor.

Michael Garone

Schwabe Williamson & Wyatt, appellate group leader

I have been reading with interest the list of names that have been bandied about in the press as potential nominees. I have been surprised that Susan Graber of the Ninth Circuit has not been mentioned.

She has served with distinction on the Oregon Court of Appeals, the Oregon Supreme Court and the Ninth Circuit Court of Appeals and is eminently qualified. Her experience in private practice before being elevated to the bench gives her a practical insight that would be welcome on the court. Her nomination would also add some geographical balance to the court, which is dominated by justices from the East Coast.

I am sure that Secretary of State Hillary Clinton would give her a great recommendation, as they have known each other a long time, having attended both Wellesley College and Yale Law School at the same time.

William K. Hill

Bilzin Sumberg Baena Price & Axelrod LLP, litigation and appellate law partner

The best candidate to replace Justice Souter is Yale Law School Dean Harold Koh. Koh is a rare combination of intellectual brilliance, real world experience and common sense, and outstanding people skills. His academic credentials are unquestioned, having degrees from Harvard and Oxford. He has Supreme Court experience, as a clerk for former Justice Blackmun. He also had a successful career in private practice with a prestigious Washington firm. And, he has had extraordinary success as a true leader of Yale Law School.

After arriving at Yale in 1985, he made such an immediate impression that he was asked by the graduating students the following year (my class) to deliver the graduation address. He rose through the ranks to become the dean, a position he holds today. On the way, he took on and argued numerous high-profile cases, principally in the human rights arena.

Koh's principal academic field is international law. It should be noted, however, that his main specialty within that broad field is international business transactions, with an emphasis on the practical side of transnational legal issues. This expertise in international law should be viewed as an additional plus for his candidacy, particularly since the country has just elected our most international president in history, and since this country's place is the world is becoming more and more global and inter-related.

In addition, Koh took a leave of absence from Yale Law School to serve as the assistant secretary of state for democracy, human rights and labor and is now the nominee to be legal adviser to the Department of State.

As a Korean-American, if nominated, he would become the first Asian-American to serve on the court, further advancing the goal of diversity in our important institutions. Koh is far, far more than an impressive resume, however. He possesses a warmth and a sense of humor, as well as a profound sense of fairness and concern for others. As a lawyer, a scholar and a person of character, he is undoubtedly the right person at the right time to take a place on the high court.

(William Hill graduated from Yale Law School in 1987.)

Kirk C. Jenkins

Sedgwick Detert Moran & Arnold LLP, partner in the appellate department

President Obama should act boldly in making his first Supreme Court nomination. He could make no better choice than professor Neal Katyal, the principal deputy solicitor general.

Although Katyal is only 39 years old, he has already established himself as a pre-eminent scholar and advocate in many of the most important areas of law which will face the Court during the next generation.

Most recently, Katyal was prevailing counsel in Hamdan v. Rumsfeld, which challenged the constitutionality of military tribunals at Guantanamo Base. Former Solicitor General Walter Dellinger called Hamdan "simply the most important decision on presidential power and the rule of law ever."

Earlier, Katyal was co-counsel to Vice President Gore in Bush v. Gore, and he represented the deans of most major private law schools in Grutter v. Bollinger (2003), a landmark case on the law of affirmative action.

Katyal has written extensively on the national security aspects of constitutional law, particularly with respect to the respective roles of the president and Congress. He is an expert in the law of equal protection as it applies to terrorism issues, as well as emerging issues of criminal law in cyberspace.

Katyal has been recognized by many national publications as one of the nation's best appellate advocates. He knows the executive branch, having served as national security adviser to the Justice Department during the Clinton administration, and he knows the Supreme Court, having clerked for Justice Breyer before embarking on his academic career.

Professor Katyal is one of the finest legal minds of this generation. President Obama should elevate him to the Supreme Court.

Stephen B. Kinnaird

Paul Hastings Janofsky & Walker LLP, co-chairman of the appellate practice

I hesitate to make an off-the-cuff declaration of the single person President Obama should nominate. There is simply no substitute for painstaking analysis of the total body of the candidate's work and careful vetting of the candidate's character, analytical powers and judicial temperament. The better question may be who should be the top candidate to subject to the vetting process, and on paper I would give the edge to Judge Diane Wood.

She brings a unique combination of constitutional scholarship and practical experience in both the judicial and executive branches. She has served in the Office of the Legal Adviser at the State Department, served in the Antitrust Division at Justice, taught at Georgetown University and the University of Chicago, and served on the U.S. Court of Appeals for the Seventh Circuit. She has studied deeply many of the fundamental questions of constitutional law (not to mention antitrust and international law, her academic specialties). Her 2005 article, “Our 18th Century Constitution in the 21st Century World,” 80 N.Y.U. L. Rev. 1079 (2005), displays a measured and thoughtful approach to dynamic constitutional interpretation that is steeped in learning about the law.

Judge Sonia Sotomayor, perhaps equally brilliant, has some countervailing advantages. She has been a prosecutor, which is a valuable perspective given the predominance of criminal cases on the court's docket. She has experience in private practice, including in intellectual property litigation, which is a burgeoning field. She has served on the district court as well as the appellate court, which enhances her understanding of federal procedure.

Still, deep learning in the law is so important for a Supreme Court justice, and that puts Judge Wood at the top of the list. If she makes it through the vetting process, and in particular if her decisions in ideologically charged cases are found to reflect principled decision making, she would make an excellent nominee.

Solicitor General Elena Kagan is another great candidate, but perhaps for a subsequent vacancy. People who know her speak admiringly of her, and I was greatly impressed by a short speech she delivered the other day. She has executive experience from her days serving in the Clinton White House Counsel's Office and the Domestic Policy Council. Administrative law, one of her academic specialties, is an important part of the court's docket. Her ability to make peace among the factions at the Harvard Law School faculty shows she has the consensus-building skills that would be important within the court. However, her litigation experience is limited, and a few years as solicitor general will be invaluable to her. Obama should have more chances to make additional appointments.

Christopher M. Kise

Foley & Lardner LLP, partner and vice chairman of the appellate practice

Raoul Cantero, former Justice of the Florida Supreme Court and current partner at White & Case. At 49, the Harvard-educated Cantero, grandson of former Cuban President and military hero Fulgencio Batista, combines the ideal credentials: intellect, diversity and longevity. The Obama administration would do well to appoint the first Hispanic-American to the Supreme Court, especially one from Florida, an important political prize. Moreover, Cantero has a strong bipartisan support base. Indeed like Justice Souter, his balanced viewpoint, while rankling the Republicans that helped place him on the Florida Supreme Court, allows the Obama administration to avoid what it clearly does not need with this first appointment, a protracted confirmation battle.

Kira Klatchko

Best Best & Krieger, senior associate in the appellate group

Elena Kagan has already been confirmed by the Senate once as the first female solicitor general. Her intelligence and academic record are unassailable. Her success as dean of the Harvard Law School demonstrates her exceptional organizational ability and her ability to work in a dynamic environment.

She clerked for Justice Thurgood Marshall and for Judge Abner Mikva, she worked in the executive branch, she's also been in the trenches practicing law. Kagan is thoughtful, has varied experience she brings to the table, has already survived confirmation once, and has no past judicial record that can be picked apart. She may be slightly to the left, but even those on the right will admire her accomplishments. She is an ideal candidate for the Supreme Court.

Cheryl F. Korman

Rivkin Radler LLP, partner in the litigation and appeals practice group

My personal view is that President Obama should nominate Second Circuit Judge Sonia Sotomayor to replace retiring Supreme Court Justice David H. Souter. I believe that Judge Sotomayor, a Puerto Rican woman who is a New York native, is a centrist who would add diversity to the court. We have appeared before Judge Sotomayor, and Judge Sotomayor has demonstrated in a decade on the Second Circuit bench that she is always fair and even-handed.

Judge Sotomayor has a wonderful academic background, having graduated from Princeton University and Yale Law School, where she was an editor of the law review. Judge Sotomayor also brings experience as a prosecutor — she worked at the Manhattan District Attorney's Office — and as a litigator in private practice, in addition to her experience as a judge. Judge Sotomayor would obtain bipartisan support, as she was first appointed to the bench by the first President Bush.

Lynne Liberato

Haynes and Boone LLP, co-chairwoman of the appellate section

Judge Diane Pamela Wood, U.S. Court of Appeals for the Seventh Circuit. Judge Wood understands that the justices are not only the masters but the servants of the law and of the parties who appear before them.

An added quality: She is a graduate of the University of Texas School of Law.

Luther T. Munford

Phelps Dunbar LLP, partner in the appellate practice group

Stanford University Law School professor Pamela S. Karland. She has more hands-on litigation experience than several of the other candidates put together. She shows up as counsel in 21 federal district court cases and 19 federal appellate cases. She has also been lead counsel in a half-dozen or so Supreme Court cases where she has argued points of criminal procedure, job discrimination law and voting rights law.

The Supreme Court badly needs another justice with recent experience in trial and appellate work. Not only is Karland strong in that respect but also the courts frequently cite her scholarly work. She meets President Obama's criterion that the new justice approach problems from a practical point of view. We could expect her to carry on in the tradition of Justice Harry A. Blackmun, for whom she once clerked.

David E. Nagle

Jackson Lewis LLP, partner

Among the candidates whose names are frequently being mentioned, I think that Ken Salazar would be a solid choice for the Supreme Court. Recently confirmed (by unanimous consent) as secretary of the interior, he had served in the U.S. Senate since 2005. Prior to that, he was a two-term attorney general of Colorado and a state Cabinet member and had time in private practice. As Colorado Attorney General, he strengthened law enforcement, and addressed a range of environmental and consumer issues.

While in the Senate, he was a member of the so-called “gang of 14” moderates who worked to reach a compromise so as to avoid filibuster of judicial nominees. The court benefits from having members who work effectively together, and over the last term, the chief justice demonstrated an effort to achieve consensus.

I believe that an individual with such personality traits, and varied experience, as Ken Salazar would be beneficial, and consistent with the President’s stated objectives in selecting a nominee for the court.

Stanley J. Panikowski

DLA Piper LLP, appellate and intellectual property litigation partner

I would choose a woman from the Southwest with judicial experience to replace Justice David Souter. Her name is Sandra Day O’Connor.

As a threshold matter, there is precedent for appointing a retired justice to the Supreme Court. Both Charles Evans Hughes and John Rutledge resigned from their positions as associate justice and were later appointed as chief justice. And there is no apparent constitutional reason why a retired associate justice could not again be appointed to the Supreme Court as an associate justice.

Justice O’Connor epitomizes the best of our common-law judicial tradition. She is fiercely independent and uncompromisingly fair. She is scholarly and thorough in her analysis of the law and facts in each case. Justice O’Connor blends both reason and humanity — the product of which is wisdom — in her approach to the judicial process.

And, as anyone who saw her recent appearance on The Daily Show with Jon Stewart can attest, Justice O’Connor is as sharp, witty and energetic as ever. She would be an excellent bipartisan choice for another round of service on the highest court in the land.

Beverly Pohl

Broad and Cassel, partner, board-certified appellate lawyer

“Who is the best candidate?” is an impossible question, because the answer depends on the criteria applied and the experiences and preferences of those offering their endorsements. So forget “best” and ask me who would be an exciting and inspired choice. Among the many apparently well-qualified names now in play, I think that Teresa Wynn Roseborough would fit that description.

Currently chief litigation counsel at MetLife, she clerked for Justice John Paul Stevens on the Supreme Court and since then has had an impressive career both in government and private practice. While relatively young, she is an accomplished appellate practitioner, involved and recognized for her achievements, who has been considered for other judicial and academic positions.

Now she is included on various short lists for Justice Souter’s seat, among candidates who are sitting judges and academics. Why? Because Teresa has that rare and intangible “something” in addition to her impressive resume — a calm, peaceful, confidence and intelligence that draws people in — actually reminiscent of President Obama.

That she is a woman and an African-American is icing on the cake, because the court needs diversity, but even more it needs people with both good judgment and a heart, grounded on a firm legal footing. Her credentials are exemplary, but her life path so far demonstrates that this is an extremely qualified and delightful woman who would add perspective and zest to the Supreme Court.

Michael Reedy

McManis Faulkner, appellate partner

President Obama should nominate Judge Sonia Sotomayor to replace Justice David Souter because she has the most wide-ranging life experience of the leading nominees. Like Obama, Sotomayor has succeeded because of her hard work and intelligence. She grew up in a South Bronx housing project and was raised by her mother after her father passed away when she was 9 years old. Despite these hardships, she graduated summa cum laude from Princeton and served as an editor at the Yale Law Journal.

Sotomayor worked for five years as an assistant district attorney in New York, prosecuting felonies. She later entered private practice in New York, where she litigated intellectual property disputes and was made a partner at her firm.

Sotomayor was nominated to be a federal judge by the first President Bush and served in the Southern District of New York for six years. One of her most noteworthy decisions was issuing a preliminary injunction against Major League Baseball, which helped end the 1994 baseball strike. She has been a federal appellate judge at the Second Circuit Court of Appeals since 1998, and was approved by a more than 2-1 majority.

Sotomayor’s wide-ranging legal experience as a prosecutor, trial lawyer, trial judge and appellate judge is different and broader than most of the existing Supreme Court justices. That type of real world experience would benefit not just the Court, but the attorneys and parties who appear there.

The Supreme Court sometimes seems removed from the lives of ordinary Americans. Elevating Judge Sotomayor to the Court would be like opening the doors and windows to a fresh breeze. She has the life experience, intelligence, and empathy that President Obama wants in the next justice.

Stephanie Resnick

Fox Rothschild LLP, chairwoman of the litigation department

The best candidate from both a legal perspective and a political perspective right now is Sonia Sotomayor from the Court of Appeals for the Second Circuit. She is well-respected as a jurist, and she has been involved in several high-profile matters in the past. She has experience as a prosecutor, in academia and in private practice, so her background is well- rounded. Her name has been discussed in relation to Supreme Court nominations for some time now, and her qualifications are outstanding.

From a political perspective, as a Hispanic female, she certainly fits with the conventional wisdom on President Obama’s priorities. She would provide greater diversity to the court, which had been diminished after Justice O’Connor’s retirement, and she would become the first Hispanic justice in the court’s history. Sotomayer may also be the administration’s best bet to avoid a drawn-out confirmation battle.

She had a fair amount of Republican support both in her confirmation to the Second Circuit and in preliminary discussions regarding prior openings on the court. Given the other challenges facing the administration right now, it seems like spending energy and political capital on a confirmation battle would be better saved for the expected Ginsburg and Stevens vacancies in future years.

(Drew Bonekemper, also a partner in Fox Rothschild's litigation department, assisted with this response.)

Jeffrey K. Riffer

Jeffer Mangels Butler & Marmaro LLP, partner

Sonia Sotomayor. She's superbly qualified intellectually and she's experienced life. She grew up in a housing project in the South Bronx (near Yankee Stadium). She was diagnosed with diabetes as a child and her father passed away shortly thereafter. She graduated summa cum laude from Princeton and then Yale Law, where she was an editor of the Yale Law Journal. She was a deputy district attorney in New York and later in private practice. She's a woman in a country that is majority female, but there is only woman presently on the Supreme Court. She's Hispanic and there has never been a Hispanic on the Court. She was initially appointed to the federal bench by a Republican (President George H.W. Bush). She could have a long tenure on the court because she's only 55 years old (the only current member of the court who is younger is John Roberts).

Victor Schwartz

Shook Hardy & Bacon LLP, partner

In the hunt for an Obama choice at some point will be Elana Kagan, a friend and current dean of Harvard Law School. Elana has been nominated for solicitor general, and Obama may want to give her some time in that spot before appointing her to the Supreme Court. In general, the Souter successor is likely to be a political progressive who sees the Constitution as a living document, not bound by views expressed by Founding Fathers. He will be very tempted to chose someone who has served in elected office and has had to respond to public demands. Obviously his Advisors will look for a person of Latino background.

Cheryl M. Stanton

Ogletree Deakins Nash Smoak & Stewart PC, shareholder

Judge Jose Cabranes from the Court of Appeals for the Second Circuit should replace Justice David Souter because Judge Cabranes is eminently qualified, has extensive judicial and legal experience, and has demonstrated the appropriate respect of law and process required in a Supreme Court justice.

No one can question Judge Cabranes’ qualifications — he is a graduate of Columbia University and Yale Law School, and received a Master's in Literature degree in international law from the University of Cambridge. Judge Cabranes became the first Puerto Rican appointed to the federal bench in 1979 when President Carter appointed him to the U.S. District Court for the District of Connecticut. He was serving as the chief judge of that court when President Clinton appointed him to the Court of Appeals for the Second Circuit in 1994.

Judge Cabranes has received numerous awards for his outstanding legal jurisprudence, including the Gavel Award (Certificate of Merit) from the American Bar Association; the John Jay Award from Columbia University for the “personifying the ideals of American democracy and representing the very best of the judiciary”; the Connecticut Bar Association’s award given to the Connecticut judge who “epitomizes the long-term, dedicated and conscientious service to community in a judicial role”; and the Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence.

Judge Cabranes has the requisite public and private service to replace Justice Souter. Early in his career, Judge Cabranes practiced with a New York law firm, taught classes on human rights law and other topics at both Rutgers University Law School and Yale Law School (where he later served as the general counsel). He also served as the special counsel to the governor of Puerto Rico and as head of the Commonwealth of Puerto Rico’s office in Washington. In his private life, Judge Cabranes helped found the Puerto Rican Legal Defense and Education Fund and chaired the board of directors of Aspira of New York (an educational organization that helps inner-city Hispanic youth prepare for college).

Most important, however, is Judge Cabranes’ commitment to the rule of law, as demonstrated by his recent dissent to the en banc decision in Ricci v. DeStafano. There, Judge Cabranes objected to his colleagues’ refusal to provide full legal review and guidance on an appeal “raising novel questions of constitutional and statutory law” under the Equal Protection Clause and Title VII of the Civil Rights Act.

In Ricci, 19 white and one Hispanic firefighter alleged that New Haven city officials had discriminated against them on the basis of race when the officials disregarded the results of two promotional examinations and refused to promote any firefighters because “no blacks and at most two Hispanics would be eligible for promotion” under the test results. The trial court issued an unpublished summary order in favor of the city officials, even while acknowledging that the jury could find that the evidence supported a finding that the city officials’ actions were at least partially motivated by race.

A Second Circuit panel including Judges Rosemary Pooler, Robert Sack and Sonia Sotomayor affirmed the district court’s ruling in a summary order, without addressing any of the legal issues raised on appeal. Three days prior to the filing of the en banc decisions, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the district court, making the unpublished district court decision the law of the Second Circuit. The Second Circuit then denied an en banc rehearing in a 7-6 decision.

Judge Cabranes dissented, calling for a substantive opinion from the Second Circuit on the “important questions of first impression,” or for the Supreme Court to resolve the issues. Judge Cabranes repeatedly asserted that the issues raised on appeal were worthy of full review and explanation by the appellate court, “both for the proper resolution of the case and for the guidance of other courts and municipalities in future cases.”

The Supreme Court agreed. On April 2, the court held oral argument in what many commentators view as the most important civil rights case to come before the Court since Grutter v. Bollinger, underscoring the fact that in Ricci Judge Cabranes once again demonstrated the right judgment and understanding of his role as a member of the federal judiciary.

Mark Wallach Calfee Halter & Griswold LLP, co-chairman of the litigation group

I would like to see President Obama nominate Sonia Sotomayor, currently a judge on the Second Circuit Court of Appeals. Judge Sotomayor has sterling academic credentials and possesses the unique characteristic of having been nominated to the federal bench by both a Republican and a Democratic president: George H.W. Bush nominated her to the district court, and Bill Clinton nominated her to the court of appeals. Judge Sotomayor has the real world experience which President Obama has said he wants to see in a Supreme Court justice, and would be the first Hispanic justice. She is regarded as a political centrist, and therefore should be relatively easy to confirm. Her appointment would increase female representation on the court, which seems appropriate at a time when an increasing proportion of the practicing bar consists of women. In summary, nominating Judge Sotomayor would be helpful in avoiding an unnecessary battle over confirmation and would give the Supreme Court a member with all the background and training to be a superb justice.

Tom Walsh

Bryan Cave LLP, appellate partner

Judge Steven Colloton (Eighth Circuit Judge from Des Moines, Iowa) would be an excellent choice to replace Justice David Souter on the Supreme Court. Judge Colloton has the whole package. He is a brilliant, personable jurist, who is a student of the law, a good writer, a former U.S. attorney and a former law clerk for Supreme Court Chief Justice William Rehnquist.

Roy G. Weatherup

Lewis Brisbois Bisgaard & Smith LLP, team leader of the appellate practice group

My recommendation is Judge Margaret Morrow of the U.S. District Court for the Central District of California. I have known her for over 25 years, as a fellow appellate lawyer, and as a trial lawyer and litigator at Quinn Kully & Morrow. She was one of the few women who became a name partner at a major Southern California law firm. During the 1980s and 1990s, when she was still a lawyer, I knew Judge Morrow through the Los Angeles County Bar Association, of which she was the president for a year.

I was delighted when Morrow was nominated by President Bill Clinton to be a district judge in the 1990s. Although I am a lifelong Republican, I was very distressed when Utah Sen. Orrin Hatch delayed her confirmation for a long time, apparently fearing that she would be a "judicial activist." I thought that any such fears were unfounded.

Since Judge Morrow was confirmed, my only personal contact with her has been at bar association functions. In addition, I am handling a pending appeal, representing an appellee, from one of her judgments. The record in this case shows work of the highest quality by Judge Morrow.

From other lawyers, I know that Judge Morrow has an excellent reputation. She is universally considered one of the best federal judges in Southern California.

Charles T. Wells

Gray Robinson PA, of counsel, former Florida Supreme Court Justice My preference would be for the person appointed to have had experience in State Courts as well as Federal Courts as a lawyer and perhaps as a judge. So many of the decisions of the United States Supreme Courts concern issues that primarily are before the State Courts and which are primarily applied by State Courts. State Courts are where the vast majority of the public comes into contact with the Courts and have their rights determined in criminal law, in family law, in laws dealing with children, both juvenile and dependency, in various types of business cases and in injury cases. It is very important for the Supreme Court to consider how their rulings will impact the processing of these cases in State courts. This is experience which a person who has spent at least part of their career in State court has and which would benefit the discussions of cases at the conferences of the Supreme Court. I would add that former Florida Supreme Court Justice Raouel Cantero has this state court experience in his career as well as remarkable academic credentials.

Gregory P. Williams

Richards Layton & Finger PA, chairman of the corporate department

I think Judge Sonia Sotomayor would be an excellent choice for nomination to the Supreme Court. She is a well-respected jurist, who also would bring to the court a wealth of real- world experiences.

She was raised in a Bronx housing project, managing to make her way to Princeton and Yale. She has succeeded both as a prosecutor and an attorney in private practice. She now serves as a member of the Second Circuit Court of Appeals, one of our most highly respected courts.

While secondary to her professional qualifications, I think the fact that she is both female and of Puerto Rican descent make her a compelling candidate. I believe that the effectiveness of the court will only be enhanced by making it more reflective of our population as a whole. I think we need to do better than having one woman and one representative of a minority on the court.