Dispatches from the Creation Wars

Obama is expected to announce his nominee to replace Justice Souter this week, perhaps as early as Tuesday. In the last week I’ve come to the conclusion that it’s basically a toss up between two candidates: Elena Kagan, the current Solicitor General, and Judge Diane Wood of the 7th Circuit Court of Appeals. Here’s my reasoning.

1. I think Obama puts a premium on serious intellect and Kagan and Wood are head and shoulders above the other nominees on the short list in that regard, both enormously well respected legal scholars on both sides of the aisle.

2. I think Obama is going to want a nominee who will cost him as little political capital as possible to confirm and Kagan and Wood both fit the bill. Kagan has just gone through the confirmation process and Wood has the endorsement of top conservative legal scholars to help her through the process.

But Daphne Eviatar of the Washington Independent suggests a reason why Obama might well favor Kagan over Wood. She asks which of these two candidates is more likely to back up Obama’s assertions of broad executive power and the answer to that question is clearly Kagan.

Second Circuit Court of Appeals Judge Sonia Sotomayor seems like the kind of judge Obama says he’s looking for, with “intellectual firepower but also a little bit of a common touch and has a practical sense of how the world works.” But Sotomayor hasn’t had much opportunity to rule on issues of executive power, so her views on the subject may be hard to predict. Judge Diane Wood, on the other hand, has not endorsed sweeping presidential powers in the area of national security, saying in a 2008 lecture that “the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business.”

Would Obama risk appointing a judge who’s so openly doubted the powers he now claims as his own?

Former Harvard Law School dean Elena Kagan, now the Solicitor General, has, by contrast, approved broad claims to executive power when they were made by President Clinton concerning domestic matters. And in her confirmation hearing, she explicitly endorsed the president’s authority to indefinitely detain someone suspected of actively supporting al Qaeda or the Taliban. To be sure, as I’ve noted before, she seemed largely to agree with the Supreme Court’s ruling in Hamdi v. Rumsfeld, which isn’t exactly surprising for a lawyer nominated to be the administration’s chief advocate before the Supreme Court. But Savage points out that she also said that “there are occasional times where presidential power still exists, even if Congress says otherwise” — aligning herself in no uncertain terms on the side of a powerful executive.

Looking at the next Supreme Court pick through the lens of executive power casts this critical race in a whole new light. Judging from the record, as Savage reviews it, I’d say the Solicitor General might now be pulling ahead.

I have to agree. Which is why I prefer Wood to Kagan but expect Kagan to get the nomination.