Friday, November 7, 2008

The Dawn of a New Administration

Yes, he did - Barack Obama will become the 44th President of the United States.  Well, what now?  And what will this mean for constitutional law?  Here are a few thoughts on how the executive, the legislature, and most important, the federal judiciary will be shaped under an Obama Administration.   (By the way, not only are Barack Obama and Joe Biden that rare team - two lawyers on the ticket - they are also both former Constitutional Law professors.  Shall the press prepare to have their questions answered with questions?)

The Exectutive

Who is likely to fill key legal positions influencing the Constitution in the Obama administration?  According to the ABA Journal, the leading candidates Attorney General are former Deputy Attorney General Eric Holder and Massachusetts governor Deval Patrick.  There is also talk that President Elect Obama could make history by appointing the nation's first female Solicitor General.  According to the ABA Journal, Kathleen Sullivan, former dean at Stanford Law, is being closely considered. reports that Elena Kagan, current dean at Harvard Law, is also being mentioned.  ( also reminds us that former Solicitors General are likely candidates to become Supreme Court justices - like this gentleman did. AmLawDaily has a list of others being considered for the post.

The Legislature

While not a member of the executive branch, the president certainly has the ability - and soome would say, the duty - to craft a legislative agenda.  What are some of the Constitutional Law issues that President Obama will consider?  While he might not have his agenda set in stone, there is no shortage of suggestions.  First, members of Congress believe he should end the war in Iraq post haste.  Second, the ACLU suggests that he close Guantanamo Bay immediately.  Finally, Delegate Eleanor Holmes Norton hopes that at long last, the District of Columbia will receive full voting privileges in the House of Representatives. 

(By the way, in case you wondered, changes in the composition of the House and Senate Judiciary Committees are unlikely.)

The Judiciary

Of course, Constitutional Law professors (and their students) are most interested in what will happen with the Supreme Court.  Of course, the first question is who will be the most likely justice to retire?  At 88 years of age, the most speculation centers on Justice Stevens.  (There is some speculation, though, that Justice Souter may also be willing to depart the bench soon.)  The second question is who is the most likely sucessor to any retiring justice?  The ABA Journal's recent cover story on this topic suggests four names:  Seventh Circuit Judge Diane Wood, Second Circuit Judge Sonia Sotomayor, WilmerHale partner Seth Waxman, and (again), Dean Elena Kagan. 

The final question is this:  what happens if one of the justices retires?  That depends upon which justice retires.  If either Justice Stevens or Justice Souter retires, it is unlikely the Court's current 5-4 deadlock on critical issues will be broken.  However, if Justice Kennedy should retire, that vacancy will have more of an opportunity to shift the direction of the Court.  Justice Kennedy seems to have replaced Justice O'Connor as the perrenial swing vote on the major issues.  Therefore, if he is replaced, many of the cases on the court *might* be decided differently.  (I say might because though I am a legal realist, I maintain the judges first and foremost are guided by the law, rather than politics.)

One more note:  In all the excitement about the Supreme Court, don't forget that President Elect Obama will also be able to influence the lower federal courts.  The Legal Times' Blog reports that there are forty current vacancies on the federal bench, with approximately 20 more expected before the inaugaration.  As we all know, the Supreme Court denies cert in most cases.  Therefore, the federal appellate courts are de facto courts of last resort on many issues.  Thus, changes in their composition warrant our attention as well.


Post-script:  If you want an excellent discussion of academic pieces about the law of presidential transition, see this piece by Paul Horwitz at PrawfsBlawg. 

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