Jeffrey Toobin: After Ginsburg
Like Thurgood Marshall (and very few other Justices in the recent history of the Supreme Court), Ruth Bader Ginsburg had secured a major place in American history before she was even appointed to the high court. As a principal architect of the legal strategy to end discrimination against women in the nineteen-seventies, Ginsburg argued and won a series of landmark cases before her future colleagues. Appointed to the Court, in 1993, by President Clinton, Ginsburg had fewer triumphs to savor as a liberal justice on a mostly conservative Court. Now, at the age of seventy-five, she is seriously ill with pancreatic cancer. Everyone wishes her a prompt recovery, of course, but the possibility of the departure of the Court’s only female Justice raises the question of how President Obama might fill the seat.
A woman? It seems certain. It’s inconceivable that the Court could be all-male when the legal profession as a whole is nearing gender parity. A former judge? The current Supreme Court is the first in history where all nine Justices are former federal appeals court judges. By way of contrast, on the Court that decided Brown v. Board of Education, in 1954, eight of the nine Justices had never served as judges before they were nominated to the high court. By the look of his Cabinet, Obama has a healthy respect for politicians, and it certainly seems possible that he might reach into their ranks for his first nomination.
But who? Janet Napolitano, the former governor, attorney general, and U.S. Attorney of Arizona, and the recently installed Secretary of Homeland Security, would seem to have the ideal background if Obama decides to go the non-judge route. (And in private practice, Napolitano helped represent Anita Hill—which might make for lively lunchtime conversation with Clarence Thomas.) Gov. Jennifer Granholm, of Michigan, fits a similar profile.
Among judges, Sonia Sotomayor, of the federals appeals court in New York, will certainly get some consideration. Youthful but still experienced, and a political moderate, Sotomayor would be the first Hispanic on the Court. Judge Diane Wood, who taught with Obama in Chicago and now serves on the federal court of appeals there, also seems possible. One candidate who bridges the political and legal worlds is Elena Kagan, the dean of Harvard Law School, a former Clinton Administration official whom the President recently named his solicitor general. For now, fortunately, there’s no vacancy, and the President isn’t talking.
Notes on the day by the staff of The New Yorker.