In my RH Reality Check article today, I speculated that Obama’s SCOTUS shortlist included Sonia Sotomayor, Diane Wood, Elena Kagan, Jennifer Granholm, Deval Patrick, Kathleen Sullivan, Cass Sunstein and Janet Napolitano. Turns out the actual list has been leaked, and I was only partially right. Obama is considering Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano, U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood, and California Supreme Court Justice Carlos Moreno. I’m disappointed that my two favorites, Kathleen Sullivan and Pamela Karlan (apparently I should have gone to Stanford for law school…), aren’t listed, but overall the choices look pretty solid. Thoughts?
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i was holding out hope Richard Epstein, hero of the libertarians and constitution in exile, would be on the shortlist, in the name of bipartisanship and postideolgicalness and diversity, ie O values. there’s no wasy O would nominate him but even his name appearing would’ve created quite a stir.
epestein, according to the nytimes, desperately tried to recruit O to the dark side at the U of C and appears somewhat bitter that O didn’t engage more.
But, but, where’s the white guys?!
/sarcasm
I wish Kimberlé Crenshaw had made the list.
I want Napolitano, on the grounds that the only Supreme Court justice from my law school, Justice McReynolds, was possibly the worst human being ever (See link in my name).
Macon, don’t we all wish Ms. Crenshaw had made the list… she’d be my #1 pick, but there was just no possible way.
Manju, if Obama picks a libertarian (which you’re right, he won’t), it had better be Kozinski.
Manju, Oprah will pick the nominee?
I’ve posted quotes from and links to compelling dissents by Sotomayor, Wood and Moreno at my litigation and trial blog, though I’m actually rooting for a non-judge to be nominated.
The Supreme Court is a political branch like any other, and it’s worrisome for how long it’s been captive to professional judges. I have nothing against professional judges (who I work with every day, and who do stellar work, as evidenced by the dissents I cited), but I don’t like having a court of entirely professional judges. We need a little more perspective.
In that vein, I don’t think Kagan brings much to the table — the experience of an HLS professor/dean is not that much more enlightening about the real world than a professional judge, and indeed probably much less so. As such, I’m leaning towards Napolitano or Granholm, with a personal preference towards the latter. I think we need an actual politician on the court, someone who understands more about how these rulings get applied and executed by the government.
Next time around, we can start diversifying with, say, professors or practicing lawyers. For now, the basics.
I like Granholm and Moreno. Granholm, because she’s a politician with impeccable legal credentials and pretty young. Moreno, because he’s a state court judge and would bring a perspective absent on the current Court, all of whose members spent most of their career in the federal government. Moreno spent his whole career in the local legal community and SCOTUS could use someone like that. Only downside is that he’s a little old.
Max, I’m intrigued by your comment. What makes it a good idea to throw a non-judge into the hot seat? And given that you think Kagan’s experience as an academic doesn’t bring much real-world knowledge to the table, what kind of professors would you like to see in the mix?
(I hope this doesn’t come off as antagonistic–you clearly have experience in the field, and I don’t, so I’m genuinely curious.)
As someone living in Michigan, I’ll put out a good word for Gov. Jennifer Granholm. Very passionate, intelligent woman whose stayed true to her principles even through real tough battles with the legislature over the last seven years. Besides being Michigan’s first female governor, she was our first female attorney general and a graduate of Harvard Law School.
And I rather think bringing a governor to SCOTUS would be an immeasurably important piece in the development of the court’s thinking. It widens the base of experience
My only concern is that she’s waved off rumors that she’d be named to Obama’s cabinet and SCOTUS by reiterating her commitment to finishing her term in Michigan (there’s one year to go). Good for us, but …. I’d still love to her bringing sense and compassion to the nation’s top court for the rest of her life.
It’s a shame Granholm could never run for national office, having the same impediment as Arnie (not being born in this country). And not to be ageist here, but the important thing is relative youth. I’ll take somebody in their 40s or early 50s and who will outlast Scalia, Thomas, and hopefully Roberts and Alito.
MK – I use the term “professional judge” very loosely. Obviously, all of the justices did substantial work prior to joining the federal bench. But most of them either devoted their career primarily to bouncing around Federal legal appointments (Roberts, Scalia, Kennedy, Thomas) or served more than a decade as a Federal appellate judge (Ginsburg, Breyer, Alito). Souter’s leaving, so he doesn’t count, and thus the only justice who hasn’t spent most of his career practicing in the same small world of federal legal politics (indeed, Roberts’ “private practice” time was primarily arguing in front of the SCOTUS) is Stevens, who likely won’t be on the court for long.
These are small worlds unrepresentative of the public. We need more perspective than that; except for Stevens, none of the justices know much at all about how the law is lived by the vast majority of the public. Any smart, well-trained lawyer can figure out the bulk of SCOTUS cases and will reach the same answer — the question, as Obama put it, is where they fall in the 5% of cases with no obvious “legal” answer, cases that require the application of political thought, which is tempered by experience.
Think of the oral argument over the stripsearch case — 8 of 9 Justices just couldn’t comprehend why it’s invasive for a 13 year old to strip in front of authorities, or how schools have become high-security zones in the past decade or so. These are simply not issues they encounter in their lives, nor issues they encountered in their careers. Not even close. Now consider that for every issue, from antitrust, to employment discrimination, to punitive damages, to jury selection. These people all come from the same, small world.
As for Kagan, I was unclear. I think a professor is a good thing, but I think the first appointment needs to be someone with a basic understanding of government outside of this small federal legal political world, and Granholm — as a governor, like Warren — certainly brings that to the table. A HLS professor, in particular, would really need to fight to see the real world of the law, since they’ll spend most of their time deep in the same small federal legal political world as the appellate judges and the political legal appointees in the Executive Branch. I just don’t see Kagan as having that experience; indeed, prior to HLS she was bouncing around these same small federal legal political circles.
I also think that Granholm’s flaws as a governor: too concilliatory, too eager to search for consensus, not bold enough, are more likely to be assets as a supreme court judge.
I’m disappointed that my two favorites, Kathleen Sullivan and Pamela Karlan (apparently I should have gone to Stanford for law school…), aren’t listed
Those wouldn’t happen to be the lesbians, would they?
Indeed, Kyra, those are the out lesbians.
Re: Granholm, I’m with annalouise. I think she’s a great politician and I wish she could hold national office; I’m less excited about her as a SCOTUS judge.
Is there any evidence that Sotomayor is prochoice? I have scoured and can’t find anything except the same assumption/hearsay being repeated over and over again in various blogs.
“Manju, Oprah will pick the nominee?”
Ben: you know as well as I who the real leader of the world is
I realize she’s a long shot, but I love Kimberlé Crenshaw.
As a Canadian I really hope he doesn’t appoint Janet Napolitano – because of her outrageous comments that Canada ‘let in the 911 terrorists’ – which is of course a complete fabrication. Her later disavowals that she was ‘misunderstood’ are hard to take since she was asked point blank by the shocked interviewer to confirm that she believed Canada was involved and she said “Not just those but others as well.”
http://www.cbc.ca/world/story/2009/04/21/napolitano-border-canada021.html
That is topped, unfortunately, by her desire to make the Canadian-US border the same as the Mexican-US border. Because we’re such a danger to the US, you see. Because of 911 and all the secret terrorists we’ve let in that no one knows about. Given that entry into the US is controlled by the American border control, not ours, it’s the Americans that let terrorists into America, not Canadians. It’s a double dose of deceit and fearmongering.
And of course the Mexican border is such a shining example of peaceful community relations and civil rights.
The fact she’s Homeland Security sec. is ill-making enough. No one needs more fearmongers and security-freaks who are happy to publicly state lies and myths to fabricate consent for their policies on SCOTUS as well. I shudder to think of her determining, say, the outcome of any torture trials. If they ever happen.
You had 8 long years of that. And so did the rest of the world.
I’d like to add to the “I’m from Michigan and support Granholm’s potential nomination”. Mainly because I think she’s intelligent, fair, slightly to the left of centrist democrats, etc. but also because she gets such a tough break in Michigan. She gets blamed for absolutely everything (most of which came from things out of her hands, like the economy and the mess Engler made) and I’d be happy on a personal level that she is continuing to do well and advance career-wise.
I’d like to add to the “I’m from Michigan and support Granholm’s potential nomination”. Mainly because I think she’s intelligent, fair, slightly to the left of centrist democrats, etc. but also because she gets such a tough break in Michigan. She gets blamed for absolutely everything (most of which came from things out of her hands, like the economy and the mess Engler made) and I’d be happy on a personal level that she is continuing to do well and advance career-wise.
eta: I’m reposting this because my earlier comment is stuck in moderation, I believe because of my chosen pen name. So apologies if you see this in double at some point in the future.
Napolitano? She’s the woman we elected as our governor here in Arizona. What did we get for it? Nearing her term limit, she took Obama’s appointment. In effect, she abandoned us to a right-wing nutjob who his dismantling our educational system and reproductive rights. (Arizona doesn’t have a lt. gov. The next-in-command is not necessarily of the same party as the governor. Hence, we went from a pseudo-left gov. to a right-wing gov. when Napolitano bailed.) I wouldn’t trust Janet as far as I could throw her.
Also:
While I don’t like the idea of militarizing the U.S. borders, I despise your tone. Mexicans are “such a danger to the U.S.,” but not those lily-white Canadians? That racist crap is why the Mexican border is like it is, why anti-Hispanic bigotry is tolerated (even supported) in the U.S. As an Arizonan, the wife of a first-gen Mexican-American, and the mother of Hispanic children, your implications are nauseating to me.
Honestly I’m not too thrilled about the idea of anyone who served in the executive branch getting on the SCOTUS, but I’d take Napolitano over Granholm. Granholm supported mandatory minimums and is kind of a drug warrior. Napolitano, for all her flaws, views both guns and reproductive choice as fundamental rights. She hits two of the three things I care most about that are likely to come before the SCOTUS. Hell, if she’d just come out with some kind of strong 4th amendment support position I’d be salivating.
Granholm can hold national office, she can be a U.S. Congressperson. Really, get your facts right.
Of course, since Levin ran again she’s not going to get that seat, nor is Stabenow going to retire. So the Senatorial seats are full-up for the foreseeable future and I don’t see her running for the House.
Please god not Napolitano. She’d probably decide Korematsu the same way over again, if given the chance.
I don’t know anything about Granholm, but I think MK’s arguments about personal experience are pretty compelling. Those are closely related to why we need more women and minorities on the court. It’s time for a little post-modernism to enter out national jurisprudence.