The Supeme Court Contender Who's Not a Judge & How a Supreme Court Fight Could Help the GOP from MOJO 9APR & 12APR10

Here is someone qualified for a seat on the court and who's nomination may prevent a nasty confirmation fight as outlined in the article following this one, also from Mother Jones.

Now that it's official and Justice John Paul Stevens is set to retire, the media is doing its usual routine of handicapping all the potential candidates to replace him. There's talk of religious diversity—Stevens was the last protestant on a court now made up entirely of Catholics and Jews—and of course racial and gender diversity. But since we're talking about all the things Obama might see as desirable qualities in his next Supreme Court nominee, how about picking someone who has never sat on a federal circuit court? If the current court shows any consistent bias, it's in its kid-glove deference to appellate court judges, something virtually every sitting justice was prior to their high court appointments. And federal circuit court judges are almost by definition some of the most conservative people on the planet simply by virtue of their career choices.

Circuit court judges are insolated from the messy, fact-driven, jury trials overseen by the district courts, and even further removed from the delicate business of dealing with live humans as clients in private or nonprofit practice. More telling, though, getting on a circuit court requires a fair amount of political schmoozing usually cultivated in a white-shoe corporate law firm. That's one reason perhaps that Chief Justice John Roberts always struck me as something of a suck-up during his confirmation hearings. He was well versed in the art of ingratiating himself to people in power. Given all that, it would be nice to see someone join the court who wasn't part of that club. In an ideal world, Obama might find someone who was more of an outsider just to mix things up a bit. His choice of Sonia Sotomayor suggested a tilt in that direction. While she, too, was a sitting circuit court judge and former corporate litigator, she didn't seem to do quite as much schmoozing to get their as some of the other justices, and came with a very different personal history. But everyone on Obama's current short-list, at least the one making the media rounds today, comes from the far more familiar career path. All but one, that is.

While she, like Roberts, worked in corporate law and the White House counsel's office, Solicitor General Elena Kagan has never been a judge. In fact, the former Harvard law school dean had never even argued a case before the Supreme Court before taking over as the government's chief litigator last year. Her lack of experience in that department is one reason court-watchers thought Obama passed her over last summer in favor of Sotomayor. But now that she's had a year defending the Obama administration before the high court, it's clear that she's more than qualified to take a seat there. I watched her argue her first case last September when she defended the Federal Communications Commission in the now-infamous Citizens United case. She was brilliant and fearless, with a touch of irreverance.

Not that you can extrapolate how someone will perform on the bench from one oral argument, nor does ten years in the ivory tower of Ivy League academia necessarily give Kagan a hugely different perspective on the world from someone with a lifetime appointment to the court of appeals (though having dealt with former Harvard prez Larry Summers on a regular basis just might!). But if Obama is choosing between someone like Kagan and another boring, male, DC circuit judge like Merrick Garland (also on the short list), I'm rooting for the non-judge Kagan. Sandra Day O'Connor she's not, but she's probably as close as we're going to get from this administration.

How a Supreme Court Fight Could Help the GOP
http://motherjones.com/politics/2010/04/how-supreme-court-fight-can
When Justice John Paul Stevens announced his retirement from the Supreme Court last week, he set off an avalanche of questions. Will President Barack Obama opt to replace him with a moderate nominee or a very liberal one? How might a new justice affect the direction of the court? But the big political question is this: Will a Supreme Court confirmation battle help Republicans?"Politically, yes," says GOP strategist Mindy Finn. And other Republican consultants agree: The upcoming fight over Stevens' replacement—no matter how big or small, no matter whom Obama picks, no matter whether that person is confirmed or not—is a major opportunity for conservative and Republican politicos. Obama said on Friday that he'd like a new justice confirmed by the October recess. That means the Senate will be debating a nominee just as the midterm elections are heating up. Whoever is nominated, Republican and conservative groups will use the hearings to rally supporters and raise money—perhaps to use more for the congressional contests than for any effort to defeat the nominee. "Different groups will use a Supreme Court fight differently. The one common denominator, of course, will be donors and supporters," says Michael Turk, a Republican new media strategist, and, he adds, the Republican National Committee and the National Republican Senate Committee—the party’s major fundraising arms—"will use it to portray the left as out of the mainstream, too liberal."The confirmation debate could also hand both Republicans and Tea Party activists a chance to super-charge their attack on the constitutionality of health care reform and prolong the sparring over that issue at a time when Democrats had hoped to shift the conversation to jobs and financial regulation. "I'd expect the constitutionality of federally enforcing the purchase of a good or service to enter the debate," says Finn, referring to the lawsuits that 14 states have brought against the federal government arguing that the mandate requiring all citizens to purchase health insurance violates the Constitution. As the New York Times reports, Rep. Mike Pence (R-Ind.)—who’s been at the forefront of GOP outreach efforts to the Tea Partiers—has already made this connection, warning that the court could have the final say on this matter. And long-term conservative judicial activists are already making inroads with Tea Party leaders in hopes of channeling the movement's outrage about the mandate. High-profile confirmation hearings could give Republicans a platform to push this line of attack against Obama and his health care legislation.A Supreme Court tussle could help Republicans another way: by serving as a headline-grabbing distraction from the issues that Democrats want to focus on before the midterm elections—that is, jobs, jobs, jobs. "The bigger worry [for Democrats] would have to be the time this takes off the clock for a White House and Democratic party looking to craft a better message on the economy. Every day they can’t repair themselves on that front is a lost day," says Kevin Madden, a Republican strategist who works with potential GOP presidential candidate Mitt Romney. The White House had aimed to push through financial reform before the elections—which could help Democrats portray themselves as tough on Wall Street and working to prevent another recession. But confirming a Supreme Court justice "is just one more thing to complicate the legislative schedule,” says GOP pollster Dave Winston. “Even an uncontroversial [nomination] is remarkably time-consuming." Given that the Democrats, as the incumbent party, appear more endangered, any political theater that sucks up oxygen from 2010 campaign efforts is likely to impede them more than the Republicans.In political terms, it may not make much difference whether Obama opts for a safe choice like DC Circuit judge Merrick Garland or a more controversial pick like Seventh Circuit judge Diane Wood, who would present an easy target for social conservatives due to her rulings in hot-button abortion cases. Given that even minor details from a nominee's resume can spark a political feeding frenzy—recall the "Wise Latina" ragefest ginned up from Sonia Sotomayor's conventional resume—it won’t be hard for conservatives to turn any Obama pick into a political lightning rod just right for cable television clashes.Democrats could also try to turn a Supreme Court fight to their advantage by calling out GOP obstructionism and rallying supporters around a nominee, as Organizing for America, Obama’s grassroots operation, did for Sotomayor. But a court confirmation will mostly distract from the Democrats' election-year endeavors, while playing directly into the GOP's preferred line of attack. Even before Stevens announced his retirement, Democrats like Senator Arlen Specter warned that approving a new justice this year could spark an ugly, knock-down, drag-out fight. Ugly or not, this is one matter Democrats will want to be over as quickly and painlessly as possible.