The Official Apolyton Off-Topic Rampant, Unfounded Supreme Court Speculation Thread

[Imran Siddiqui]

Wasn't Bill Clinton disbarred? He's ineligible. I can see LOTS of people combusting if someone who isn't a lawyer became a justice.

Ineligible? Is there any statutory requirement that those nominated for SCOTUS be a member of a state bar?

[flash9286]

Judge Easterbrook

[flash9286]

Ineligible? Is there any statutory requirement that those nominated for SCOTUS be a member of a state bar?

Not to mention his state ban has been lifted. He might still be barred from the Supreme Court bar though.

[Imran Siddiqui]

That's only to argue in front of the court, though, of course.

[flash9286]

That's only to argue in front of the court, though, of course.

Yep.

[BlackCat]

Judge Sylvester "Dredd" Stallone

[Dinner]

Ineligible? Is there any statutory requirement that those nominated for SCOTUS be a member of a state bar?

Man, that's a good question. I would expect so but in practice I'm sure there was someone in the 19th century or something who had no formal education and probably got appointed due to political connections instead of actual skill.

[DinoDoc]

However, simply for the entertainment value of seeing Hannity, Beck, and Limbaugh all spontaneously combust, I hope he nominates Bill Clinton.

I'm hoping for a reverse Souter.

[Felch]

Ineligible? Is there any statutory requirement that those nominated for SCOTUS be a member of a state bar?

Nothing in the Constitution. The Senate has to confirm, but the President could theoretically nominate anybody.

[Guynemer]

Judge Reinhold

My name is Judge!

[Dinner]

Who Should Replace Justice Stevens?

Justice John Paul Stevens has announced his plans to retire. Let the shortlist parlor game begin. Of course, it already has. The three names that the White House has been bandying about to reporters are Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit, Solicitor General Elena Kagan, and Judge Merrick Garland of the D.C. Circuit Court of Appeals. We asked some of our favorite legal friends to weigh in with their less-obvious choices. Here are their answers so far, and we'll add more as they come in. Tell us your own choices in the comments, and we'll round those up, too. Here's Slate's shortlist from last year, when the winner was Justice Sonia Sotomayor.

Hillary Clinton
I didn't support Hillary Clinton's candidacy for president but I think she'd be a rock star of a Supreme Court justice. Clinton has all the makings of a full-throated, strong-minded liberal stalwart on the bench. She's been an advocate for children and for families for as long as she's been in public life. They are in need of as much help as they can get on the court. (Wait for this term's ruling on whether juveniles can serve life without parole to see what I mean.) She knows how to frame ideas for a wide audience, which would help the liberal wing of the court counterbalance the genius rhetoric of Antonin Scalia. She's a celebrity, which means she'll automatically command the kind of attention that a junior member of the court usually does not. She's served as secretary of state long enough to make a graceful exit. She is as former senator, which should win her some courtesy and deference during the godforsaken nomination process—will the Republicans who worked with her personally really throw grenades when they question her? And of course, she brings a weath of real-world political experience to the court. The only knock on Clinton is that at 62, she won't necessarily serve for decades upon decades. But she looks healthy and energetic as ever and I'd trade a few extra years for her mettle and character.
—Emily Bazelon, Slate senior editor

Bryan A. Stevenson
The nomination of Bryan Stevenson, director of the Equal Justice Initiative in Alabama and professor at the NYU Law School, would be a much-needed return to putting a great lawyer like Louis Brandeis or Thurgood Marshall on the Supreme Court—someone of great intellect who has heroically represented real people with desperate needs in actual cases and knows how the justice system functions in courthouses and communities all over the nation and the impact it has on people. The current members of the court have no real sense of the injustices and cruelty of the criminal justice system, the complete absence of any semblance of an adversary system in many parts of the country, the inability of the poor to get their day in court in any kind of case. The court would benefit immensely from Bryan Stevenson's experiences and perspectives, just as Justice Marshall's colleagues benefited from his experiences and insights as many related in their tributes to him after his retirement. Throughout its history, the court has been well-served by the diversity of experience of its members. It is urgently in need of that kind of diversity today.
—Stephen B. Bright, president and senior counsel, Southern Center for Human Rights

William Gunn
Justice Oliver Wendell Holmes famously wrote that the life of the law is not logic but experience. Holmes, a thrice-wounded Civil War combat veteran, may have had his wartime experience in mind. In retiring, Justice John Paul Stevens will deprive the Supreme Court of its last sitting veteran. At a time when our nation is at war and the Supreme Court finds itself increasingly brought into cases involving war powers and the military, the court needs a justice with visceral military experience, if not combat experience as well. Accordingly, President Obama should choose a veteran to replace Stevens. One option would be William Gunn, current general counsel of the Department of Veterans Affairs. Gunn graduated with honors from the Air Force Academy and Harvard Law School and then served nearly 20 years in the Air Force Judge Advocate General Corps. He was part of the military that transitioned from the Cold War to the post-Cold War deployments of the 1990s to today's global war on terrorism. His final assignment as chief defense counsel for the Office of Military Commissions put him at the epicenter of the court's battles over national security policy, a tough position he performed well. And he's been recently confirmed by the Senate, an asset for any pick.
—Phillip Carter, lawyer at McKenna Long & Aldridge and former deputy assistant secretary of defense for detainee policy for the Obama administration

Stuart Rabner
Many of us (myself included) would like to see President Obama nominate somebody with experience in elected office, like Jennifer Granholm or Janet Napolitano. Maybe it will happen, but it seems unlikely—the nominee would be attacked as "too political." So how about a state court justice instead of a federal appellate judge? New Jersey Supreme Court justice Stuart Rabner is smart, young, and widely respected. He is a career prosecutor with a reputation for great integrity and for being nonpartisan: Democrat Jon Corzine appointed him, but Republican Chris Christie is also a fan. Plus, Rabner would add geographic diversity: He's a North Jersey guy, whereas Alito and Scalia are South Jersey. (More seriously, geographic diversity, if it still matters to anyone, obviously cuts against my suggestion—but at least Stuart is not a Washington lawyer, a group that I think is already over-represented on the court.)
—Christopher L. Eisgruber, Princeton University provost

Harold Koh
Sure, conservatives will go ballistic. But why should they prevent President Obama from nominating an extremely smart, well-credentialed, thoughtful, and seemingly confirmable candidate? Koh, the former Yale Law School dean who is legal adviser for the State Department, would bring intellectual fire power to the court and broaden it in other ways as well. He's never been a judge (a plus for the current court) but has a wealth of legal experience—as a lawyer, a scholar of international law, a law dean, and in the executive branch (under Reagan and Clinton and now Obama). And, yeah, he'd be the first Asian-American appointed to the court.
—Lee Epstein, Northwestern University School of Law professor

Elizabeth Warren
President Obama should nominate Elizabeth Warren to replace Justice Stevens. Warren is the Harvard law professor currently serving as chairwoman of the Congressional Oversight Panel investigating the banking bailout. She has for years been one of the nation's foremost experts on bankruptcy, focusing on how it impacts working-class Americans. For years before the bubble burst, Warren warned us about the dangers of subprime mortgages. She has proved masterful at communicating this message to the public and to Washington. Her life story is an embodiment of what people can do when given the economic opportunities she has advocated in her writings. The daughter of a janitor, Warren did not attend elite private universities—she went to the University of Houston and Rutgers law school before eventually joining the Harvard faculty. The current Supreme Court has no justices with expertise in business matters, and has been pushing the law in a conservative direction in such cases. Warren adds that expertise as well as a progressive perspective. And for a White House that likes nominees it knows, it is important to note that the president met Warren years ago, and promoted many of Warren's ideas during his presidential campaign.
—David Fontana is a George Washington University law professor; Seth Grossman, who clerked for Justice Stephen Breyer, is a lawyer at Jenner & Block

Carter G. Phillips
In making his choice, I would urge the president to follow Stevens' example in selecting a nominee who is intellectually inquisitive, comfortable in his or her own skin, and guided by an intuitive desire to actually understand the law made by others, rather than to remake the law in his or her own image. Of course, some good, plain-spoken Midwestern persuasive defense of the rule of law—as Congress or the Constitution actually provided—would also be welcome and Steven-esque, too.

A nominee from the usual appellate judge circle who meets these criteria: Merrick Garland, who has a reputation for evenhanded, tough-minded, but gracious questioning. However, it is really well past the time to break the Circuit Court template, especially in favor of someone with a marquee Supreme Court practice. Carter G. Phillips should be the president's top candidate. Phillips has 65 appearances before the court, experience in the SG's office, and knowledge of court precedent that is unmatched. He possesses the decency, heart, and motivation for the common good of the most dedicated pro bono, community legal aid lawyer. Phillips is a nominee with Stevens' gifts but also the ability to form majority coalitions far more regularly. It is not exaggeration to say that the survival of modern civil rights litigation is the result of Phillips' handiwork. His brief in the Michigan affirmative action case was repeatedly cited by name during oral argument by the liberal and moderate justices, and it was strategically and substantively effective in holding a narrow, but important majority. President Obama cannot change the numerical liberal-conservative split replacing Stevens, but he can bring to the court a justice who can make the big plays and win the close contests, and that's Phillips. Some advisers in the White House may look to Deval Patrick or Harold Koh, both of whom are lawyers of distinction and would be attractive from a diversity perspective. But frankly, in this season of Tea Party madness, these nominees could easily get roughed up early and rejected or blocked. By contrast, Phillips should be filibuster-proof. And he is in command of the kind of logic and intellect Kennedy would find hard to resist. Majorities of Phillips, Kennedy, Ginsburg, Breyer and Sotomayor would follow. Phillips would also bring a needed practitioner's wisdom to the court. If Phillips for some inexplicable reason didn't jell, I would have the ebulliently intelligent, multiparty Walter Dellinger in my back pocket.
—Doug Kmiec, U.S. ambassador to the Republic of Malta

Cass Sunstein
Cass Sunstein is the most important legal scholar of his generation. No one has contributed as many important ideas to as many fields of law as he has. He has written influentially on legal reasoning, the advantages and limits of cost-benefit analysis in administrative law, the revolution in constitutional rights, cognitive biases and their implications for the law, deliberation and polarization of opinion, climate change, risk assessment, and much else. Currently the chief of the Office of Information and Regulatory Affairs in the Obama administration, his political instincts are generally liberal but he has surprising and unpredictable views on a range of issues, which make him difficult to fit him into standard political classifications. An honest, humane, and respectful person, he enjoys debating and writing with friends across the political spectrum. It also doesn't hurt that he writes beautifully.
—Eric Posner, University of Chicago law professor

Martha Minow, Elizabeth Warren, Vicki Jackson, Robert Post, Diane Wood
If thinking outside the current box (and looking to historical precedents, such as Felix Frankfurter and William O. Douglas), many current law professors are worth thoughtful review. Martha Minow, now dean of the Harvard Law School; Elizabeth Warren, also from Harvard and a leading expert on commercial and bankruptcy law; Vicki Jackson of Georgetown's law faculty and a scholar of comparative constitutional law; and Robert Post, Yale's dean, whose understanding of the First Amendment, constitutional law, and the role of public institutions is profound. Diane Wood, now sitting on the 7th Circuit, and widely discussed in the last nomination round, offers both the vantage point of a former law professor (a scholar of civil procedure and anti-trust) and a member of the Department of Justice.
—Judith Resnik, Yale Law School professor

Harold Koh
Harold Koh would bring much-needed expertise in international law to the Supreme Court. Currently legal adviser at the State Department and formerly assistant secretary of state for democracy, human rights and labor as well as a lawyer in the Justice Department's Office of Legal Counsel, Koh is a former dean of the Yale Law School. He has a compelling personal story as the child of immigrant parents, has been a longtime fighter for human rights and would be the first Asian-American appointee to the court. In his recent speech at the meetings of the American Society for International Law he defended U.S. policy in the anti-terrorism campaign. The speech shows that he is no legal radical when operating from a position of power, as his detractors sometimes fear.
—Kim L. Scheppele, director of the program in law and public affairs at Princeton University

http://www.slate.com/id/2250251/

[Ecofarm]

Jon Stewart

[Ben Kenobi]

Ineligible? Is there any statutory requirement that those nominated for SCOTUS be a member of a state bar?

No. The president has considerable latitude. I'd love to see Obama nominate someone who isn't a lawyer too.

[Riesstiu IV]

Judge Sylvester "Dredd" Stallone

Judge Dredd but not Sylvester Stallone Dredd.

[BlackCat]

But are there a Judge Dredd without a Sylvester ?