An Uneasy Feeling: Obama’s Short List Reportedly Includes Two Controversial Possible Nominees

Many civil libertarians and liberals were critical of President Barack Obama’s selection of Sonia Sotomayor to replace David Souter. Sotomayor voted with conservatives on the Second Circuit in key police abuse and free speech cases. (here and here and here and here. At the time, many of us opined that Obama would not dare appoint such a nominee to replace liberal icon John Paul Stevens. If the three candidates leaked by the White House on the short list is any indication, there is a two out of three chance that he will do precisely that.

The short list includes Judge Diane Wood, 59 of the Seventh Circuit, Solicitor General Elena Kagan, 49, and Judge Merrick Garland, 57, of the D.C. Circuit.

At an initial matter, it is important to note that these are three highly qualified people with long and prestigious records. Moreover, I previously stated my support for Diane Wood who would be a terrific choice for the Court. The only other person who I would like to see on the Court as much as Wood is Harold Koh, former Yale Dean. For civil libertarian, Koh would be the single most significant confirmation to the Court since Louis Brandeis.

Garland is a respected jurist and a moderate. However, civil libertarians and liberals would likely oppose him. He routinely votes with the government, particularly in police cases.

Diane Kagan would also be a lightening rod. She has taken positions opposed core civil liberties, here. Kagan has supported Bush positions on “the war on terror” and is viewed by civil libertarians as part of Obama’s embracing of Bush era doctrines.

Glenn Greenwald has a column on an equally troubling prospect of nominating Cass Sunstein to the Court, here.

Given the 5-4 split on the Court, the selection of Garland, Kagan, or Sunstein could have a cascading impact on case law in the area by moving the Court to the middle and right.

Replacing Stevens with someone opposed to core civil liberties values would be the ultimate betrayal of liberals who helped elect Obama. It would also be a deep insult to the legacy of Stevens. While it is comforting not to see Sunstein on the list, it is a great disappointment not to see Koh who is currently part of the Administration. Liberals wil have to be heard clearly and strongly if they want to see Wood or Koh on the Court. The odds are currently two of three against them.

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