Janet Napolitano

 
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From Newsweek

Replacing Stevens on the Supreme Court: Where Does It Stand?

1. No decision has been made by the president.

2. The top four candidates are Elena Kagan, Diane Wood, Merrick Garland, and Janet Napolitano.

3. Dark horses are still possible, especially if one could be found who is an economic progressive who could help redress what the president considers to be the tilt toward the powerful on the court. That's why I'm told that Harvard Law School professor and consumer advocate Elizabeth Warren, whose expertise in bankruptcy law is a match for many of the business cases before the court and who comes from modest origins (her father was a janitor), is in the running. Kagan has never been a judge, but she waived tuition when she was dean of Harvard Law School for anyone entering public service, a policy recently abandoned for financial reasons but sure to be viewed favorably by Obama.

4. In the short and medium term it's all about "getting to five"—bringing Justice Anthony Kennedy along to build new majorities. Garland has been very successful at this on the D.C. circuit. Wood had warm relations with her conservative colleagues on the federal bench in Chicago and might also be a skillful political operator on the court. She is also the most brilliant writer of the bunch and knows Obama better than the others.

5. Wood was overruled twice by the Supreme Court on abortion cases—which makes her toxic to abortion opponents—but a close look at the cases suggests that the differences with other judges had to do with subtle interpretations of RICO (racketeering) statutes, not abortion.

6. Napolitano's gaffes as head of the Department of Homeland Security (e.g., saying, "The system worked," in the case of the Christmas Day bomber) are not disqualifying. Obama didn't care about much worse gaffes by Sonia Sotomayor ("wise Latinas" know best) and is game to work through such problems with any nominee. A much bigger impediment to Napolitano is the question of who would take over DHS were she nominated for the high court.

Jonathan Alter is the author of The Promise: President Obama, Year One, to be published May 18.

Watch for NEWSWEEK's Race for the Robe, a continually updated ranking of potential nominees to replace Stevens.

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