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Friday, April 16, 2010 1:30 PM

Despite conservative angst over President Obama's looming Supreme Court nomination, a majority of respondents in our informal poll of SCOTUS-watchers predict that the court is more likely to move right than left with the departure of Justice John Paul Stevens.

Thirteen out of the 23 experts polled said that either in a small or large way, the high court will move right. Five predicted that there won't be any change, and three said it will move left. The remaining respondents said there would be no change at all, or just that it definitely won't move left.

We also asked respondents to recommend one person who they think would make a good nominee, whether or not that person's name has been floated. Names that were mentioned more than once include Stanford Law professor Pamela Karlan and appellate judge Merrick Garland, who is also reportedly on the administration's short list.

See respondents' comments after the jump.

To the right:

• "Obama's appointment will almost certainly move the court somewhat to the right. I'm not sure it will do so in a way that will lead to different outcomes in divided cases, but as a group the Court is likely to be more conservative without Justice Stevens on it."

• "The new justice may well move the Court to the right of where Stevens is now, but not to the right of where he was when he joined the Court in 1975. Which is a way of saying that liberals should not fret so much about this prospect. Justices in the modern era tend to drift leftward after a year or so on the bench, and whomever replaces Stevens may do the same."

• "A little to the right. Stevens is fairly effective at pulling Kennedy to the left. Although I do not expect President Obama's nominee to be to the right of Stevens on the judicial spectrum, I think she or he would be hard-pressed to be as effective as Stevens."

• "The new justice will probably move the Court to the right. While there are certainly professionally qualified nominees who are more 'liberal' than Justice Stevens, it would be difficult to get any of them confirmed, even with the Democrats' significant majority in the Senate. However, history shows that it is hard to predict how 'liberal' or 'conservative' a justice will be after years on the Court. It is possible that some of the most talked-about contenders, who are not considered to be extremely liberal, will turn out to be further to the left than anyone expects."

To the left:

• "Probably slightly to the left. Justice Stevens ended his career as a moderate liberal, and it's likely that President Obama's new nominee will be more of a solid liberal (though of course we can't know for sure)."

• "Clearly, any Obama nominee will start out to the left of John Paul Stevens. Justice Stevens was nominated by Republican president Gerald Ford in 1978 and was considered a 'Midwestern moderate.' By all accounts, Stevens drifted to the left during his 34 years on the bench. An Obama nominee will start out more liberal than Stevens did in '78."

No change:

• "Obama's pick will not be as liberal as Stevens, but in the medium term at least it will not move the Court at all because whoever is chosen, Kennedy will remain as the median or center justice."

• "I agree with the conventional wisdom that it won't move left. Beyond that, it all depends on nominee and uncertain Court dynamics."

Nominee recommendations:

• "I would advise Obama to pick Merrick Garland because Garland has the best combination of brilliance, experience and personality to replace Justice Stevens and the role Stevens has played on the Court."

• "Limiting myself to his likely shortlist (I'm assuming someone like, say, Miguel Estrada wouldn't fly), I think Judge Garland would be Obama's strongest candidate because he appears to be independent of the president and less likely to simply rubber-stamp the president's liberal policy agenda when it inevitably comes before the high court."

• "My recommendation would be Jennifer Granholm for a couple of reasons. Since the beginning of the Supreme Court, there have always been justices who have held elective office before coming on the Court. Since [Sandra Day] O'Connor left, there is no one who has even run for office. This stunning lack of diversity shows up in cases such as Citizens United, where the justices have no apparent clue about what corporate and union influence can do to campaigns. I also like the fact that Granholm has NOT served on the USCA [U.S. Court of Appeals]. We've gone too far in the prior experience dimension when there's little to no relationship between that and being a great justice."

• "Hillary Clinton -- Liberal, confirmable, younger than other justices, accomplished and a nominee who could have an immediate impact in Supreme Court chambers."

• "The latest wildcard name I like is Gary Locke, former governor of Washington state. He has the credentials as a lawyer and politician, and would be the first Asian-American on the court."

• "Pam Karlan. Because she talks about the Constitution the way other people talk about their I-pads and the court could use someone else who thinks that way. She is smart and passionate and in a category all her own."

Poll respondents were: William Marshall, University of North Carolina law professor; Doug Kendall, founder and president of the Constitutional Accountability Center; Geoffrey Stone, University of Chicago law professor; Tony Mauro, National Law Journal reporter; Dahlia Lithwick, Slate senior editor; Adam White, attorney and writer in Washington, D.C.; Carl Tobias, University of Richmond law professor; Curt Levey, executive director of the Committee for Justice; Eugene Volokh, UCLA professor and founder/contributor to the Volokh Conspiracy blog; John Elwood, former assistant to the Solicitor General, former clerk to Kennedy and Volokh Conspiracy blogger; Rachel Brand, former assistant attorney general for Legal Policy; Brian Darling, director of Senate Relations at the Heritage Foundation; Richard Garnett, Notre Dame Law professor; Jeffrey Segal, professor and chair of the political science department at Stony Brook University; Carrie Severino, chief counsel for the Judicial Crisis Network; Bradley Joondeph, Santa Clara University law professor; Amanda Cohen Leiter, Catholic University of America law professor and former clerk to Stevens; Wendy Long, former general counsel to the Judicial Crisis Network; Cristina Rodriguez, New York University law professor; Michael Greve, American Enterprise Institute scholar; Robert O'Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia; Richard Primus, University of Michigan law professor; and Stuart Taylor Jr., National Journal columnist.

1 Response

Lou Gots

Monday, April 19, 2010

Could it be that the experts base those "right-left" predictions on legal doctrine?   Just maybe, the "left" positions on questions such as the limits of Commerce Clause jurisdiction and the federal/state balance have stretched as far as they can go, and a degree of retrenchment is in order. ,  

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