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Supreme Court: The Contenders

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Supreme Court: The Contenders

Sunday, April 11, 2010

Merrick Garland, Diane Wood and Elena Kagan all have connections to Chicago, and all rose through the ranks during the Clinton years. They would face varying degrees of criticism if nominated.

Nearly a generation ago, they were three young lawyers working their way up in the Clinton administration. Now, one of them could very well be the next justice on the U.S. Supreme Court.

Merrick Garland was a Justice Department official overseeing the trial of Oklahoma City bomber Timothy J. McVeigh from afar.

Diane Wood worked in the building too, specializing in antitrust law.

And down the street at the White House, Elena Kagan was taking on Big Tobacco.

Their paths later diverged. Garland stayed in Washington as a federal judge. Wood too became a judge, but in Chicago, while Kagan headed for academia.

But all three also shared commonalities – of experience, training and even geography – that have helped place them on the White House’s short list to replace retiring Justice John Paul Stevens.

All three have ties to Chicago – and by that token, to President Obama. Garland was born there. Wood and Kagan lectured at the University of Chicago, where Obama once taught constitutional law. Garland and Kagan, like Obama, are Harvard Law graduates.

All three hail from what some call the “judicial monastery” – the highest levels of government service, the bench and academia. And although they would probably face different degrees of opposition from Republicans, any one would be considered a traditional choice.

Merrick Brian Garland
Age: 57
Current job: Judge, U.S. Court of Appeals for the District of Columbia Circuit (confirmed by a 76-23 vote in March 1997)
Education: Harvard College, 1974; Harvard Law School, 1977

For Garland it is his background in criminal law, particularly cases dealing with terrorism, that sets him apart from others on the list to replace Stevens.

The son of an advertising executive from the Chicago area, Garland arrived in Washington as a clerk for then-Supreme Court Justice William J. Brennan Jr. He never left, spending most of the 1980s in private practice with a local law firm

But Washington at the time was all but under siege from narcotics and gun violence, and Garland left the firm for public service, becoming an assistant federal prosecutor. Among the cases he handled was a drug investigation into then-Mayor Marion Barry.

“He gave up a lucrative law partnership to share an office prosecuting drug cases in D.C.,” said Nicholas Gess, a fellow prosecutor. “Drugs were rampant and getting more rampant, and Merrick saw this as something he could help change.”

From street prosecutions, he moved to the Department of Justice headquarters, eventually helping run the criminal division and serving as the principal associate deputy attorney general. From his new perch, he oversaw the prosecution of Unabomber Theodore Kaczynski and the cases coming out of the anti-government movement at Ruby Ridge, Idaho.

In 1997, Garland was nominated by President Clinton to the U.S. Court of Appeals for the District of Columbia Circuit, considered the nation’s most crucial court behind the Supreme Court.

At the outset, Garland may have the easiest path to confirmation. He is considered a judicial moderate. On the appeals court, he largely handles regulatory and national security cases, thus avoiding others involving controversial social issues.

Diane Pamela Wood
Age: 59
Current job: Judge, U.S. Court of Appeals for the Seventh Circuit in Chicago (confirmed unanimously in June 1995)
Education: University of Texas at Austin, 1971; University of Texas Law School, 1975

Wood has been a federal appeals judge even longer than Garland, since Clinton tapped her in 1995 after she served in the Justice Department for three years.

Wood obtained her undergraduate and law degrees at the University of Texas, which would, if she were selected, provide the high court with geographic diversity. She spent the bulk of the 1980s as a law professor at the University of Chicago before joining the Justice Department. She is an expert in antitrust law.

Among the three top-tier contenders, her selection by Obama would be greeted most warmly by the president’s liberal base.

It would also probably trigger another bruising ideological standoff with conservatives, who contend Wood’s writings and opinions show that she believes in a federal constitutional right to same-sex marriage, is markedly a supporter of abortion rights and would like to see the phrase “under God” removed from the Pledge of Allegiance.

“She’s a liberal activist who was appointed to the bench and seemed to remain a liberal activist,” said Tom Fitton, head of the conservative group Judicial Watch.

Many lawyers who have argued before Wood hold a different view. Mark Rotert, an attorney with the Chicago firm Stetler & Duffy, praised her demeanor and intellect while emphasizing that the liberal jurist label is an oversimplification.

“I think in terms of what is the proper relationship between government and business, my impression is that she would fairly be characterized as liberal in those kinds of areas,” Rotert said.

On criminal procedures, however, “I’m not sure she fits the classic viewpoint of a liberal justice,” he said.

Wood, who grew up in New Jersey and Texas and lives in Hinsdale, Ill., nonetheless features a number of points on her resume sure to be picked at by Obama’s critics should he nominate her.

She had a long and close association with the late Supreme Court Justice Harry A. Blackmun, clerking for him a few years after he wrote the landmark Roe vs. Wade decision, which effectively legalized abortion. It was Blackmun who delivered the oath to Wood when she was sworn in as a judge on the 7th U.S. Circuit Court of Appeals.

In 1993, Wood wrote a law review article praising Blackmun for articulating in Roe and other cases “the important insight that a core set of individual rights exist that neither the states nor the federal government may trample.”

Elena Kagan
Age: 49
Current job: Solicitor General (confirmed by a 61-31 vote in March 2009)
Education: Princeton University, 1981; Harvard Law School, 1986

Of the three candidates, Kagan may be the most inscrutable in terms of her legal philosophy.

She has never served as a judge. Most of her professional career has been moving among the powerful, first in Washington, later at Harvard.

The time she has spent over the last year as Obama’s solicitor general — the administration’s top advocate before the Supreme Court — represents the most courtroom experience she has had.

As dean of Harvard Law School, she showed an ability to build consensus between warring factions, an attribute she shares with the justice she would replace should she be chosen.

As a result, when Kagan appeared last year before the Senate Judiciary Committee for her confirmation hearing as solicitor general, two conservative law professors from Harvard were on hand to support her, including Jack Goldsmith, who has been assailed in liberal circles as an architect of the Bush administration’s anti-terrorism legal strategy.

In fact, Kagan’s views on national security alarm some liberals. During that hearing, she agreed point-for-point with Sen. Lindsey Graham (R-S.C.) on the power of the American government to hold suspected terrorists indefinitely during wartime.

It was almost too much for Democratic Sen. Amy Klobuchar of Minnesota, who joked that she now understood why Kagan had once received a standing ovation at a gathering of conservative lawyers.

Born and raised in New York, Kagan is the daughter of a lawyer who was a fierce fair-housing advocate. As a student at Harvard Law, she, like Obama after her, edited the Harvard Law Review. From there, she went to Washington to clerk for liberal Justice Thurgood Marshall.

In the Clinton administration, she worked as a domestic policy advisor, helping to shape the regulatory and legal battle against the tobacco industry.

Clinton rewarded her with a nomination to the federal appeals court in Washington, but it was never acted upon by the Senate. (The slot would later go to John G. Roberts Jr., now the chief justice.)

She was named Harvard Law’s first female dean in 1993 and is credited with re-energizing the school. She also actively resisted the so-called Solomon Amendment, which cuts off federal funding to institutions that bar military recruiters from campus.

Edward Whalen, a former clerk to Justice Antonin Scalia and a conservative judicial analyst, calls Kagan an “unknown.”

“Kagan I see as sort of an indeterminate point in the middle between Wood and Garland. She has no judicial record. She’s clearly very liberal in her views,” Whalen said. “How that translates into how she would be as a judge isn’t entirely clear.”

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