High court appointment likely for next president

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No one on the U.S. Supreme Court has signaled any desire to surrender his or her seat.

But considering that two-thirds of the justices are 68 or older (the eldest, Justice John Paul Stevens, is 88, and the next oldest is Justice Ruth Bader Ginsburg at 75), chances are the next president will appoint at least one justice in his first term.

Who will that nominee be?

No one knows for certain, of course, but it’s a good bet the pick will be a woman.

Both John McCain’s and Barack Obama’s campaign camps have indicated a desire to place a woman on the bench, which has had only a single female justice since the retirement of Justice Sandra Day O’Connor in 2005.

Of the candidates who could get the Supreme nod from Obama, should he occupy the West Wing come January, none has a better chance than Judge Diane P. Wood of the 7th Circuit, experts say.

Wood, a former clerk for Supreme Court Justice Harry Blackmun, has the reputation of being a jurist with a record moderate enough to garner support – or at least to avoid strong opposition – from Senate Republicans. But she is also well-regarded as judicial scholar with the ability to hold her own on the bench.

Considering the next two or possibly three justices to leave the Supreme Court are all part of its so-called liberal bloc – Stevens, Ginsburg, and as some have suggested, Justice David Souter – finding a nominee who will counter conservative justices is key for a Democratic president to keep the court from a further rightward shift.

“The Democrat would want an intellectual heavyweight who can go up against [Chief Justice] John Roberts or Justice [Antonin] Scalia. People really think she’s the one to do that,” says Thomas C. Goldstein, co-head of Akin Gump’s litigation and Supreme Court practice and co-founder and editor of SCOTUSBlog. “She’s gone up against [7th Circuit Judges Richard] Posner and [Frank] Easterbrook. Intellectually, she can run with the very best.”

Other names likely to be on Obama’s judicial short list include close friend and Massachusetts Gov. Deval Patrick, Judge Sonia Sotomayor of the 2nd Circuit, former Solicitor General Seth Waxman, now a partner at WilmerHale and Harvard Law School Dean Elena Kagan.

McCain would have a different agenda for the Supreme Court. Rather than preventing a further shift to the right, he would seek to fortify the court’s conservative bloc to give it a majority without the need for Justice Anthony Kennedy’s swing vote.

But he’d also need a candidate the Democratic-controlled Senate will embrace – or at least confirm. Given that criteria, his nod could go to Wood’s colleague on the 7th Circuit: Judge Diane Sykes.

Sykes earned bipartisan support from Senate members during her confirmation to the 7th Circuit. Though she was confirmed when the Senate was still GOP-controlled, she had the backing of key Democrats on the Judiciary Committee: Wisconsin Senators Russ Feingold and Herb Kohl, both of whom still sit on the committee.

Despite the opposition of then-Ranking Member Patrick Leahy, D-Vt., who now chairs the committee, Feingold and Kohl had praise for Sykes.

“Justice Sykes has earned the reputation as a fine lawyer and distinguished jurist during her career in Wisconsin,” said Kohl of the then-state justice. Sykes went on to be approved by the committee 14-5, and eventually won Senate confirmation on a 70-27 vote.

“She doesn’t have the extreme avid ideologies” that have tripped up other GOP judicial nominees, Goldstein says. “She’s not seen as a hard-core conservative who wears that on her sleeve. [Republicans] believe she has the right viewpoint, but is not so partisan the Democratic Senate would reject her as being too extreme.”

Others who McCain may be considering include former U.S. Deputy Solicitor General Maureen Mahoney, now a partner at Latham & Watkins; Texas Sen. John Cornyn and Judge Michael McConnell of the 10th Circuit.