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Sotomayor ’76, Kagan ’81 rumored for Supreme Court short list

Last month, when Justice Ruth Bader Ginsburg mentioned the possibility of a new ceremonial Court photo — taken only when a new justice joins the bench — political pundits began speculating about many potential candidates, including Kagan and Sotomayor.

Kagan is the nation’s first female solicitor general, and Sotomayor currently serves as a federal judge on the U.S. Court of Appeals for the Second Circuit.

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“It is no surprise that their names appear frequently in speculation about President Obama’s potential nominees to the Supreme Court,” University Provost and Supreme Court scholar Christopher Eisgruber ’83 said in an e-mail.

Eisgruber praised both Kagan and Sotomayor as “nationally prominent lawyers with first-class talent and experience,” adding, “I have no doubt that, if nominated, either of them would be fully qualified to serve on the Court.”

As Justice John Paul Stevens turns 89 in two weeks and Justice David Souter talks of returning to his home in New Hampshire, the installation of a new Supreme Court justice seems imminent, especially in light of Ginsburg’s brief hospitalization in February for surgery relating to pancreatic cancer.

Whomever Obama selects, racial and gender diversity will likely play a role, Eisgruber said, noting that Obama’s cabinet appointments were “sensitive to the need for diversity in the American government. I expect that will be true of his judicial appointments as well.”

Tom Goldstein, co-founder of a Supreme Court blog, said in an e-mail that Kagan and Sotomayor’s gender would help their chances.

“The next appointee is essentially certain to be a woman,” said Goldstein, a partner at the law firm Akin Gump Strauss Hauer & Feld. “It’s absurd that there is only one female justice, and the President has to recognize that.”

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Goldstein added that Judge Diane Wood, who sits on the Seventh Circuit Court of Appeals, is another likely candidate.

“All three are completely qualified,” Goldstein explained. “It may come down to age and ethnic diversity.”

Sotomayor would be the first Hispanic justice appointed to the Supreme Court.

While diversity is important, Eisgruber said he expects President Obama to nominate someone based on “judicial philosophy, legal talent and relevant experience.”

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“If either Solicitor General Kagan or Judge Sotomayor get the president’s endorsement, it will be first and foremost because he regards them as well-qualified for the job,” he said.

Goldstein acknowledged that though ethnicity may be a factor, “I don’t see any evidence that [Obama] would appoint someone just to name the first Hispanic nominee.”

Eisgruber noted that he would like to see the administration acknowledge another sort of diversity.

“I hope that President Obama will consider appointing justices who have spent their careers outside the beltway, who have experience holding elected office or who have served on state rather than federal courts,” he said, calling six of the justices “Washington insiders.”

“I think it would be great to have some Justices who worked in the legislative and executive branches,” he added.

While Kagan and Sotomayor are both considered viable candidates for the bench, Eisgruber explained that there’s no way to definitively state their respective chances of nomination.

“As yet,” he said, “we know relatively little about how the Obama administration views Supreme Court appointments.”

After graduating from Princeton, Kagan earned a Master of Philosophy from Oxford and a J.D. from Harvard Law School.

She served as associate White House counsel under former president Bill Clinton and became the first female dean of Harvard Law School in 2003.

After receiving her law degree from Yale and serving as an assistant district attorney for New York County, Sotomayor became the first Hispanic federal judge in the state of New York upon her nomination by former president George H.W. Bush in 1991.