Happy Cinco de Mayo, dear readers! Clerquette hopes that you all have some festive activities planned for later today (or lunchtime, depending on how slow your practice is at the moment) to celebrate both the cooption of this traditional holiday by the likes of Corona and Tostitos, and your escape from the ravages of swine flu. But first, Clerquette would like to direct your attention to two pressing issues.
First and decidedly foremost is the matter of Justice Souter's replacement. As we all know, the most important quality in any replacement is merit. Clerquette also has a fabulous bridge to sell you (water views; easy access to transportation - any takers?). Of course, there are also secondary, but still important considerations, like diversity -- in all its many, splendored forms. Thus, given that Justice Ginsburg is now the single, lonely woman on what is otherwise a Boy's Bench, Clerquette thinks we can all agree on the rebuttable presumption that POTUS's eventual nominee will be a woman.
The question of course, is which judicial fox will occupy the Souter seat. As you know, our/ATL's leaderboard points to General Kagan and Judge Sotomayor as front-runners. But, while some Court-watchers (and POTUS fans) are unabashedly agog at the possibility of the "diversity double" that would be accomplished by Judge Sotomayor's nomination, a few interesting rumblings to the contrary have emerged. Point I: a number of commenters, including Adam Liptak of the New York Times, have pointed out that the notion of promoting "diversity" amongst the Supremes requires both consideration of personal characteristics and credentials and a good, hard look at the presumptive nominees' path to power. Given the homogeneity of the current bench, which consists entirely of former federal judges (who are, admittedly, irresistible!), might POTUS seize this opportunity to mix it up a little? He has, after all, identified Justice Earl Warren as his personal judicial dreamboat, citing Justice Warren's political background and the pragmatism with which it infused his juristic decision-making.
But wait: there's more! In an article so chock-full of Article III gossip that Clerquette read much of it while breathing into a paper bag (narrowly avoiding a dramatic swoon) esteemed law professor Jeffrey Rosen writes that Judge Sotomayor may not be quite ready for prime time. Although she gets high marks for sass and biographical appeal -- not insignificant qualities -- Rosen reports that some have raised doubts about her strength on the merits. For example, he writes, many of his sources have "expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative." Gasp! Juicier yet, Rosen quotes a former Second Circuit clerk who opined that Sotomayor was "'not that smart and kind of a bully on the bench.'" The clerk also noted that Judge Sotomayor had what sound (to this blogress) like patent indicia of divadom: specifically, said the clerk, "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." Colleagues seem to agree. According to Rosen,
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.
Clerquette loves a good diva, and admits that a colorful personality might spice up the otherwise staid Supreme armada. Having said as much, Clerquette thinks that apotheosis to the highest bench in the land should be reserved for the super-hottest judicial minds, and is deeply distressed by the thought of a sub-par intellect making the vertical journey.
Based on the above, could General Kagan have an elegant leg up on Judge Sotomayor? Consider this: as Professor Rosen noted in an interview this morning , Kagan brings "a unique combination of intellectual dazzling firepower and also tremendous personal skills," and "did such a good job, at Harvard Law School, of convincing not only liberals but conservatives to converge around common outcomes." In short, Kagan (a) has a non-judicial background (which might appeal to POTUS's penchant for the pragmatic), (b) is a consensus builder (much like her putative predecessor, Justice William Brennan), and (c) is brilliant. Could she be on the verge of overtaking Sotomayor? Among other things, her ascendance to the High Court would solve many thorny wardrobe issues.
Clerquette realizes that you, dear readers, probably have a few billable matters to attend to, and thanks you for patiently reading her long rumination. But before you go, we must address Point II. Clerquette expects an answer to the following question (and yes: that was the sound of the whip cracking, my darlings):
For scoring purposes, is the Sotomayor v. Kagan faceoff match play, or stroke play?
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