It seems mighty churlish to be speculating about replacements for Justice Ruth Bader Ginsburg only a day after her surgery for pancreatic cancer but such is punditry. Jeffrey Toobin gets us started with some interesting considerations:
A woman? It seems certain. It’s inconceivable that the Court could be all-male when the legal profession as a whole is nearing gender parity. A former judge? The current Supreme Court is the first in history where all nine Justices are former federal appeals court judges. By way of contrast, on the Court that decided Brown v. Board of Education, in 1954, eight of the nine Justices had never served as judges before they were nominated to the high court. By the look of his Cabinet, Obama has a healthy respect for politicians, and it certainly seems possible that he might reach into their ranks for his first nomination.
But who? Janet Napolitano, the former governor, attorney general, and U.S. Attorney of Arizona, and the recently installed Secretary of Homeland Security, would seem to have the ideal background if Obama decides to go the non-judge route. (And in private practice, Napolitano helped represent Anita Hill—which might make for lively lunchtime conversation with Clarence Thomas.) Gov. Jennifer Granholm, of Michigan, fits a similar profile.
Other named candidates include judges Sonia Sotomayor and Diane Wood and Harvard Law dean and solicitor general-designate Elena Kagan. There’s always Hillary Clinton but she’s likely too old; one ideally wants to appoint someone in their late 40s or early 50s to maximize the legacy.
Toobin’s point about the transformation of the Supreme Court from a body comprised mostly of politicos and litigators to one where prior judicial service is the norm is especially interesting. Were there just too many Earl Warrens — justices that greatly disappointed their appointing presidents by becoming something much different on the bench than they were in politics? Or has the conception of what it means to be qualified for the high court changed?