In a feature story about how Pamela Karlan is not apparently being considered to replace David Souter, the New York Times slips in a detail about the process that -- if true -- indicates decisions are being made to narrow the choice.
The president has narrowed his list to four, according to people close to the White House — two federal appeals judges, Sonia Sotomayor of New York and Diane P. Wood of Chicago, and two members of his administration, Solicitor General Elena Kagan and Homeland Security Secretary Janet Napolitano.
The Times also implies (using unnamed White House sources) that an announcement is imminent. What does this mean? Some discussion below the fold.
Two of the names on this list -- Kagan and Napolitano -- have undergone confirmation hearings in the Senate this year and are presumably vetted. One -- Wood -- is a legal scholar that Obama knows from his days on the University of Chicago Law School faculty. One -- Sotomayor -- would be the first Hispanic justice on the court.
My guess is that, if the list is really these four individuals, two of them are clear front runners.
Sotomayor would make history because of her heritage. Yet since Obama will likely have other vacancies during his term, he may not feel pressured to appoint a justice on electoral considerations this time around.
Napolitano hails from the state that gave us Sandra Day O'Connor -- a state that the Obama 2012 campaign covets (and that Obama '08 would have contested heavily had the Republican nominee not been John McCain). My sense is that Obama would like to keep her at DHS rather than try to find another candidate with the skills to manage that very difficult department.
That leaves two. Diane Wood and Elena Kagan.
If this list of four is accurate, my guess is Elena Kagan will be nominated. My criteria involve legal minds that the president is familiar with, not so much because of their ideology but rather because of their personalities and persuasiveness. Kagan and Diane Wood strike me as the closest to Obama's comfort zone on those merits. The president was familiar with both in his career as a legal scholar, and shared a department with Diane Wood. Wood has the advantage of having spent a considerable amount of time parrying with Frank Easterbrook and Richard Posner on the Circuit Court. A Justice Wood would not provide the kind of unwelcome surprise to Obama that Justice Souter provided to GHWB.
On the other hand, Kagan is not only a decade younger than Wood, but has also earned praise from Harvard's faculty across the ideological spectrum from her tenure as Dean. That, combined with her recent confirmation as Solicitor General, could make a right-wing assault against her candidacy a particularly futile exercise. More importantly, her ability to engage those to her right could make her an unusually influential justice who may swing a few 5-4 votes over the next three decades. Though she would be replacing one of the less conservative justices, Kagan -- unlike the quiet Souter -- might help reshape the court by convincing Anthony Kennedy or another justice to agree with her opinion from time to time. That kind of reasoning strikes me as something that appeals to Obama's thinking.
All of this, though, is speculation. We do not even know if the list of four is accurate, or if the list is down to four names. Misinformation may be spread, for reasons not known to us. But the changing information being released in the media makes me think we are getting closer to a decision, and my sense is that Wood and Kagan are the most likely names we will hear when a decision is reached.
According to the story linked in this diary, White House aides say "an announcement could come as early as Tuesday." If you are reading this diary after the pick has been made, feel free to laugh at my prognostications in the comments below. If you find this diary before news leaks, why not vote in the poll? Then we can see how our visions compare with reality.
UPDATE: This diary will serve as a humorous example of my tea-leaf reading, as President Obama announced Sonia Sotomayor as his nominee this morning. (And now that I've had a little sleep, I am amused at how badly I mangled not one but two of the contenders' names in the poll. Apologies to both Ms. Sotomayor and DIANE Wood for what I did to their names before I feel unconscious last night. I must have had sausages and Pamela Karlan on my mind.)