Antonin Scalia friend and University of Chicago Law School colleague Richard Epstein scoffs at my question about the Chicago roots of people on Obama’s short list of Supreme Court nominees—all educated guesses as Obama is not expected to name Scalia’s successor until next week at the earliest. “The place of professional attachments matters,” Epstein says, “not where one was born or grew up.”
I agree, but here’s a list nonetheless.
Merrick Garland, 63
The chief judge of the Circuit Court of Appeals for D.C.—a Bill Clinton appointee—grew up in Lincolnwood and graduated first in his class from Harvard before attending Harvard Law. Although Garland is older than ideal—ideal would be in one’s 40s or 50s—he has bipartisan appeal. He’s considered a moderate, “respected in both parties, … not driven by ideology,” according to the Wall Street Journal. Those qualities might make him more palatable to the republicans Obama will need to achieve confirmation. And if Garland turns out to be a disappointment to liberals or conservatives, at least he’s unlikely to be on the court for three or four decades.
Patricia Ann Millett, 52
Her undergraduate degree in political science is from the University of Illinois, though she grew up in Maine and left Urbana to attend Harvard Law School. She is currently on the D.C. Circuit Court of Appeals, where she took the seat vacated by John Roberts when he got his big promotion to chief justice of the Supreme Court.
Martha Minow, 61
The daughter of Chicago lawyer Newton Minow is currently dean of Harvard Law School. Epstein has doubts, calling her too much a “carbon copy” of now Justice Elena Kagan, whose resume also includes a stint serving as Dean of Harvard Law (and a stint, in the ’90s, teaching at the University of Chicago Law School). Epstein also argues that Minow’s too old. According to a report in The Hill, Obama considered nominating Minow in 2010, when another Chicagoan, John Paul Stevens, retired, but went with Kagan instead.
Diane Wood, 65
The chief judge of Chicago-based Seventh Circuit Court of Appeals is a former U. of C. law prof, whom Epstein calls “very bipartisan” who was “passed over” for Kagan in 2010. Epstein says that Wood, too, is too old. Fellow U. of C. professor Geoff Stone disagrees, saying her age is an advantage. “She’s not a spring chicken. Some Republicans might vote for her knowing she wouldn’t have as many decades on the court as a pick in her 40s or 50s.”
Deval Patrick, 59
The former governor of Massachusetts was raised in poverty on Chicago’s South Side by a single mother and his grandmother. Deval is a close friend of Obama’s and Rahm Emanuel recently appointed him as senior adviser to his task force on police behavior, created in the wake of Laquan McDonald’s fatal shooting.
Dick Durbin, 71
His name has been floated under the theory that senators are most likely to confirm one of their own. Sounds preposterous to me because Durbin, No. 25 on the Chicago Power 50 list, is among the most partisan of senators and way too old. Durbin himself might prefer that Chuck Schumer, 65 a Harvard Law graduate, take the Supreme Court spot. This would put Durbin in line to take the job that likely awaits the New York senator in the next Congress, but which the senator from Illinois covets—Senate leader.
Whoever Obama’s pick is, Epstein, who graduated from Yale Law, says he hopes that that person is not a Harvard or Yale Law graduate. There are too many on the court, he says. “It creates an “eastern tilt. This is a large country.” (With Harvard Law grad Scalia’s death, there are currently five Harvard grads and three Yale grads on the court—though technically Ruth Bader Ginsberg is a Columbia grad, having spent her third year there. When I ask Epstein if by geographical diversity he means graduates of Stanford Law, he says he's thinking more along the lines of the University of Colorado. Note that Diane Wood has her BA and JD from the University of Texas.)
Epstein also notes that with Scalia’s death, the court will have no Protestants. There are currently five Catholic justices and three Jewish justices. (Scalia was a devout Catholic.)
The current court is also lacking anyone with military experience. The last one to have served in the military, Epstein says, was Stevens.
The New York Times’s Adam Liptak asked Monday “What sort of person would Justice …Scalia have wanted to name as his successor?” It turns out that in June’s dissenting opinion to the decision establishing a constitutional right to same-sex marriage, Scalia wrote: “Avoid 'tall-building lawyers,’ especially ones who work in skyscrapers in New York. Find someone who did not go to law school at Harvard or Yale. Look for a candidate from the Southwest. Consider an evangelical Christian.”
Also of note: “Not a single evangelical Christian,” Scalia wrote, is on the court.
Epstein concludes that the death of Scalia provides “a huge advantage to Democrats, and puts Republicans in a defensive posture.”
To demonstrate how extreme the stalemate between the president and Congress has become, when Scalia, then 50 and to become the youngest member of the court, a known conservative, was confirmed in 1986 the vote was 98-0. As Scalia said when he returned to the Hyde Park campus in 2012, “I was confirmed—it’s hard to believe this—I was confirmed by a vote of 98 to nothing. Me!”
The chance of that occurring in 2016, no matter the nominee: zero.