Update: The White House has seen fit to take the effort to respond to my description of Elena Kagan’s sexuality, and Howard Kurtz asked me to comment. Here’s how I responded:
Since the position opened on the court, there have been abundant numbers of commenters and bloggers on the Left arguing openly about the potential political reactions of appointing either Sullivan or Karlan as the first openly gay members of the court. The idea of history-making appointments always has great appeal, and it’s one reason I supported Sonia Sotomayor’s nomination, a lonely position for any conservative — and when the first openly gay nominee is advanced, it will be a true statement about how far we’ve come as a society. When that does happen, it will be an issue of political discussion, whether we like it or not. It obviously has nothing to do with whether they are a good nominee or not [Note: Sens. Cornyn and Sessions are right on this].
I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post. But if I were her, I’d feel pretty good about the fact that the White House specifically responded to this — it seems like a clue as to who the pick will be, doesn’t it?
Sources numerous and equally dismissible report that President Obama has a “Top Ten” list of potential SCOTUS candidates to replace the outgoing John Paul Stevens. Since no one can honestly claim to know what the president is thinking, here’s my stab at his top ten (after conferring with a few TNL friends) as potential choices, with pluses and minuses for each. Trust me – you’ll want to stick around for the 10th.
1. Elena Kagan (49), Solicitor General of the United States. The likeliest candidate, and it was somewhat of a surprise she didn’t get picked last time.
Pluses: would please much of Obama’s base, follows diversity politics of Sotomayor with first openly gay justice (so would Karlan and Sullivan). [Update: While Karlan and Sullivan are open about it, I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles.] [Update: see my apology to Ms. Kagan at Huffington Post] Minuses: Seen as too moderate by some on the left; people like Arianna Huffington and Glenn Greenwald strongly dislike her because of her positions on executive power and anti-terror activities. Could be seen as a thumb in the eye of the civil liberties folks.
2. Diane Wood (59) of 7th Circuit Court of Appeals. The second most likely candidate, at least according to conventional wisdom. Pluses: whip smart, beloved by liberals, would be a strong force on the court. Minuses: Will turn 60 before she would be seated; more importantly, this would be a court fight purely about abortion, and the likeliest to spark furious response from the right.
3. Cass Sunstein (55) of the White House Office of Information and Regulatory Affairs. Pluses: massive liberal brain, unquestioned for his scholarly ability. Minuses: has some personal issues, the break with Martha Nussbaum was a messy one, and has a long paper trail on everything under the sun. Is disliked by the civil liberties left, but Sunstein’s opinions are for the most part consistent with what Obama’s done as president (if not what he actually promised while running). Bonus Plus/Minus: as I was one of very few conservative bloggers to support Sotomayor’s nomination as the best candidate of a bad lot, I would similarly find Sunstein in that position this year, as does Pejman Yousefzadeh.
4. Pam Karlan (51) of Stanford. Pluses: Karlan is frequently called a liberal dreamboat candidate, and deservedly so thanks to her acidic approach. This would make up for any disatisfaction with Sotomayor for the left. Minuses: Video like this abounds thanks to Karlan’s constant media appearances, and she didn’t make his list before for a reason.
5. Merrick Garland (58) of the DC Circuit Court of Appeals. Safe choice, loved by the Washington insiders, boring liberal with a moderate temperament. Pluses: would probably get the most votes and the least opposition, and get approved well before November. Minuses: really doesn’t get the White House anything — loved by all the Ivy League insiders who already adore Obama.
6. Harold Koh (55) of the State Department. Pluses: Koh would be a brilliant, kamikaze pick, designed to make the civil libertarians do flips, and with the kind of inspirational family story Obama liked so much in Sotomayor. Minuses: After Wood, maybe the second most divisive candidate. Harold Koh’s background is, as Ted Bromund has written, that of a profoundly dedicated transnationalist.
7. Kathleen Sullivan (55) of Quinn Emanuel Urquhart & Sullivan. Pluses: Former mentor Laurence Tribe called her “the most extraordinary student I had ever had.” Strong liberal who’s passed up other opportunities for a shot at the federal bench. Minuses: Failed her first try at the California bar exam. And Dahlia Lithwick would have a lot of fun writing about her.
8. Jennifer Granholm (51) of Michigan. Only included because she’s always mentioned, including again by the WaPo here. Pluses: parachutes a young former rising star into a court where she will toe the political line. Minuses: brings the focus on how much she’s effed up Michigan, seems like pure political silliness to discuss her as a replacement for a liberal institution like Stevens.
9. Deval Patrick (53) of Massachusetts. Similar calculus to Granholm, and one that would surely have an advocate in David Axelrod within the White House. Pluses: parachutes a young former rising star into a court where he will toe the political line (also, maybe you’ll goad a conservative into calling him an affirmative action pick). Minuses: brings the focus on how much he’s effed up Massachusetts, seems like pure political silliness to discuss him as a replacement for a liberal institution like Stevens.
which brings us to…drumroll…
10. Hillary Clinton (62) of the State Department. Now that you’ve stopped laughing, consider: here’s one way of getting rid of what remains a dicey political problem, rewarding a crew of still-bitter supporters, ensuring easy Senate passage (talk about a nominee as vetted as it gets) while firmly reasserting control over what is steadily becoming your administration’s rogue department at Foggy Bottom. Pluses: She’s Hillary Clinton. Minuses: She’s Hillary Clinton.