Court Watchers Speculate Over Potential Vacancy

Supreme Court Justice John Paul Stevens has said he plans to retire during Barack Obama's presidency, stirring speculation about his potential successor. NPR's political editor Ken Rudin and SCOTUSBlog editor Amy Howe discuss what may be in store for the high court.

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NEAL CONAN, host:

This is TALK OF THE NATION. Im Neal Conan in Washington.

Bondagegate stings Steele, Rudy backs Rubio; and first the Illinois Senate, now the Donald dumps Blago.

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Mr. DONALD TRUMP (Host): Rod, you're fired.

CONAN: It's springtime in Washington. Cherry blossoms line the tidal basin, the president throws out the first pitch. It's Wednesday and time for an opening-week edition of the political junkie.

President RONALD REAGAN: There you go again.

Vice President WALTER MONDALE: When I hear your new ideas, I'm reminded of that ad. Wheres the beef?

Senator BARRY GOLDWATER (Republican, Arizona): Extremism in the defense of liberty is no vice.

Senator LLOYD BENTSEN (Democrat, Texas): Senator, you're no Jack Kennedy.

President RICHARD NIXON: You don't have Nixon to kick around anymore.

Governor SARAH PALIN (Republican, Alaska): Lipstick.

President GEORGE W. BUSH: But Im the decider.

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CONAN: Every Wednesday, NPR political editor Ken Rudin joins us to talk politics. A Buffalo developer and Tea Partier jumps in the race for governor in New York. A moveon.org founder takes on Jerry Brown in California. Michael Steele's chief of staff falls on his sword. The DNC names a date. The NRCC goes after the flip-flop five, and the Civil War erupts again in Virginia.

Later, amid speculation that Supreme Court Justice John Paul Stevens may retire sooner rather than later, we'll talk with the editor of SCOTUSBlog about possible successors and what the confirmation hearings might be like. And Scrabble purists can back off the ledge. Word freak Stefan Fatsis says proper nouns are still illegal.

But first, political junkie Ken Rudin joins us here in Studio 3A, as he does every Wednesday. As usual, we begin with a trivia question. Hey, Ken.

KEN RUDIN: Hi, Neal. Happy Confederate History Month.

CONAN: Thank you.

RUDIN: Let me be the first and last to wish you that. Okay, trivia. The NCAA basketball games this week, the championships. Last night, of course, was the women. Before that, it was Butler versus Duke. Now, Butler came one basket from winning the NCAA in its home city. Okay, it was an exciting game. Who was the last major-party presidential candidate to be nominated at a convention in the same state he was born?

CONAN: If you think you know the last major-party presidential candidate to be nominated by his party at a convention in his home state, give us a call, 800-989-8255. Email us, talk@npr.org. And of course, the winner gets a fabulous no-prize T-shirt.

And, well, we can't leave off this story. It's the gift that keeps on giving. Michael Steele said farewell to his chief of staff this week, after another round of Bondagegate.

RUDIN: You know, the problem for the Republican Party, of course there's a lot of problems with the Republican Party. I mean, we always seem to be focusing on the problems with the Democrats.

CONAN: And they've got their problems, too.

RUDIN: They do, and you know, we talk about the blue dogs and the progressives and the battles over that and all that stuff, and with the Bart Stupak, the pro-choice and pro-life Democrats - but Republicans do have their problems, too.

Once upon a time, there used to be Goldwater Republicans and Rockefeller Republicans, back when there was such a thing as the Rockefeller Republicans. And now, of course, there's Tea Party folks, and whether that you know, and mainstream conservatives, whether they're too mainstream.

Anyway, Michael Steeles in charge of all this, having been elected in January of 2009 by the RNC, first African-American chairman - but he has made many gaffes. Some of them are not his fault, but some of them certainly are his fault - he says intemperate in politics things.

CONAN: Really?

RUDIN: The RNC chairman, of all people. And the last bit, of course, was the fact that the party has been spending things that some party members would not like them to spend it on, like the $1,900 at the...

CONAN: And apparently, the upshot of this, well, there's some embarrassment publicly, but donations to the RNC are down.

RUDIN: They are down, but there are also raising a lot of they also raised a record number amount of money in March, $11.3 million. Now, you'd think that well, that's a record, but you'd think if there was so much anger over the Obama presidency as the Republicans insist, they would have raised more money.

In fact, the DNC raised $13 million in the month of March, even more than the RNC has. So you wonder whether the health care may be a bit the passage of health care may have even helped the Democrats more than it helped the Republicans.

CONAN: Well, in any case, there are people who do still support them. Among them is the former majority leader of the United States Congress, the speaker of the House of Representatives, Newt Gingrich. And he speaks he endorses very quietly.

RUDIN: The silent majority.

CONAN: The silent majority.

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CONAN: We'll get back to that cut of tape in just a moment. We're having problems with the computer not firing. But in any case, there are there's a bunch of other political news in this week. Dems are still out-raising Republicans in general, and in a lot of interesting races around the country, Democrats are still out-raising more money than their Republican rivals.

RUDIN: That's right, and that's the surprise. Again, if there was such a great Republican tide, as so many people have been saying, you'd think the Republicans would be gaining - raising more and more money. There seems to be a battle within the Republican Party whether the money should go to the RNC.

There are now splinter groups who are saying, well, maybe don't give it to the RNC. Tony Perkins, for example, the head of the Family Research Council, said that we should conservatives should no longer be giving to the RNC; they should be giving to individual candidates or to the campaign committees.

CONAN: The Texas governor, Rick Perry, has had an unusual way to try to raise money for his campaign for re-election. He is sponsoring Bobby Labonte's Chevy Impala No. 71. Here's an ad for Perry, featuring the NASCAR driver.

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Mr. BOBBY LABONTE (NASCAR Driver): The Rick Perry TRG Sprint Cup car is touring Texas. Come out and see the car at a stop near you. Just check out the schedule listed here. Bring the kids. Get your picture in front of it, and meet some of your fellow Perry supporters and NASCAR fans.

CONAN: Of course, all those cars only make right turns.

RUDIN: Well, actually, they actually do make left turns going around the track, which is probably the only thing you'll ever hear from Rick Perry, although you should remember that Rick Perry endorsed Rudy Giuliani for president in 2008. Talk about a great conservative leader, Rudy Giuliani. But anyway, it's something that, hopefully, for Rick Perry's point of view, will help him in his campaign against Bill White in November.

CONAN: Funny you should mention Rudy Giuliani.

RUDIN: Why's that?

CONAN: In Florida this week, he endorsed, well, not the sitting governor of Florida for the U.S. Senate race down there in the Republican primary, but the outlier, well, the guy's who is now in the lead, in fact, Mark Rubio.

Former Mayor RUDY GIULIANI (Republican, New York City): We need a senator who understands how to stand up for the free market, for the individual, for low taxes, for less government spending, and Marko is the only candidate in this race who has a record of doing that, and that's why...

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Former Mayor GIULIANI: ...you should vote for him.

CONAN: The pro-choice, former mayor of New York endorsing the conservative in the race.

RUDIN: Of course, Rudy Giuliani also endorsed Mario Cuomo over George Pataki in 1994. But the point is, is that it seems to be a matter of personal pique, in that when Rudy Giuliani was running to become president of Florida, or whatever he was running for president of in 2008, he said that he got a promise from Charlie Crist, said that he would endorse him; and ultimately, Charlie Crist endorsed John McCain, hoping to be McCain's running mate, perhaps, and so this maybe payback by Rudy Giuliani.

CONAN: So one backstab deserves another. 800-989-8255. Email us, talk@npr.org. We have some people on the line who think they know the answer to our trivia question this week, which is the last presidential nominee of a major political party to be nominated, given the nomination in a party convention in his home state.

RUDIN: State where he was born.

CONAN: State where he was born. So let's go first to Mary(ph), Mary with us from Longcreek in South Carolina.

MARY (Caller): Hi, Longcreek.

CONAN: Longcreek.

MARY: Longcreek.

CONAN: Go ahead.

MARY: I'm guessing Jimmy Carter.

CONAN: Jimmy Carter. This was there a Democratic convention in Atlanta?

RUDIN: Well, actually, Jimmy Carter was nominated in Madison Square Garden, which is, I don't think, where Jimmy Carter was born.

CONAN: Very northern edge of Georgia.

RUDIN: Jimmy Carter's from Plains, Georgia.

MARY: Okay. Love your show.

CONAN: Thanks very much for the call, Mary. Let's go next to Leavenworth, Kansas, and another Mary(ph). Nice to have you on TALK OF THE NATION, Mary.

MARY (Caller): I'll say John F. Kennedy.

CONAN: John F. Kennedy, was the nomination handed out that year in Boston?

RUDIN: Well, no, John F. Kennedy was born in Massachusetts, but in 1960, the Democratic convention was in Los Angeles.

CONAN: Los Angeles, California. Thanks for the call, Mary. Let's go next this is Bob(ph), Bob with us from Sacramento.

BOB (Caller): Yeah, John Kerry was nominated in Boston?

RUDIN: Well, thats the one I expected. That's the incorrect answer I expected most because yes, in 2004, John Kerry was nominated in Boston. However, John Kerry was born in Denver, Colorado.

BOB: Ooh.

CONAN: Ha. Tricky. Thanks for the guess, Bob, appreciate it. Let's go next - this is another Bob(ph). This is Bob in Rochester, Minnesota.

BOB (Caller): Hi, this is Bob Sixta in Rochester, Minnesota, and I believe the correct answer is Richard Nixon in 1960 in Los Angeles.

RUDIN: Well, Richard Nixon in 1960 in Los Angeles. Let me think for a second, yes.

CONAN: Democratic convention, wasn't it?

RUDIN: No, no, actually the convention in 1960 was in Chicago. Richard Nixon was born in, I guess, Yorba Linda, California, or somewhere in California, but the convention was in Chicago.

CONAN: Whittier, I though.

RUDIN: Whittier, well, I think Whittier College.

CONAN: Anyway, anyway. Bob, thanks very much, a previous winner. Let's go next to Peter(ph), Peter with us from Roseville in California.

PETER (Caller): Hi, I think it's Franklin Delano Roosevelt.

CONAN: Well, he did get nominated four times.

RUDIN: Right, and every time Franklin Delano Roosevelt was nominated, he was either at Chicago - in Chicago or Philadelphia, and FDR was born in Hyde Park.

CONAN: Hyde Park, New York.

PETER: Right, but I have an add-on to this. Vice president, 1920, Madison Square Garden, 109th ballot...

RUDIN: Right, Cox and Roosevelt, but that's not the question.

CONAN: It's a good answer for a different question. Thanks very much. Let's see if we can go next to this is Jerry(ph), Jerry with us from Milwaukee.

JERRY (Caller): Adlai Stevenson.

RUDIN: Well, Adlai Stevenson...

CONAN: Nominated twice.

RUDIN: Right, and as a matter of fact, he was nominated in Chicago, but Adlai Stevenson was born in Los Angeles.

CONAN: Really?

RUDIN: Yes he was.

CONAN: His mother was there at the time. Jerry, thanks for the call.

JERRY: Thanks.

CONAN: Bye-bye. Let's see if we can go next to this is John(ph), John in Waterloo, Iowa.

JOHN (Caller): Rockefeller.

RUDIN: Well, as far as I know, Nelson Rockefeller has never been nominated for president, ever.

JOHN: Okay, it was a guess.

CONAN: It was a good one. Well, maybe not so good. This is Douglas(ph), Douglas another caller form Rochester, New York, WXXI-land.

DOUGLAS (Caller): Yes, in New York City, the nomination of Charles Evans Hughes, who was born in New York state.

CONAN: We can see the wheels spinning.

RUDIN: Charles Evans Hughes was born in New York state, but the 1916 convention was definitely not in New York.

CONAN: He checked it.

DOUGLAS: If you're right, Douglas...

RUDIN: He's not.

CONAN: He's not. All right, all right. Let's see if we we just have a little time left. Let's go to Bruce(ph), Bruce with us from Cape Canaveral.

BRUCE (Caller): Hey, was it George H.W. Bush in 1988, Houston convention?

RUDIN: Well, actually, George H.W. Bush was re-nominated in Houston. He was initially nominated in New Orleans, but...

CONAN: Born in the Nutmeg State.

RUDIN: No, he was born in Milton, Massachusetts.

CONAN: Oh, really? Oh, I thought he was...

BRUCE: No kidding.

RUDIN: A real (unintelligible).

BRUCE: Hey, we learn something new every day.

CONAN: Oh yeah, that's the whole idea here. Let's see if we can go this is Harry(ph), Harry with us from Binghamton, New York.

HARRY (Caller): Yeah, I'm going to take a stab at it, and I'm going to say Abraham Lincoln.

CONAN: Abraham Lincoln, twice nominated for president of the United States.

RUDIN: Well, I will tell that it's more the question is the last one, and the answer is not Abraham Lincoln because someone more recent than Abraham Lincoln.

CONAN: All right, thanks for the call. Nice try, correct but not quite correct enough. We're out of time. Give us the answer.

RUDIN: The answer is William Jennings Bryant, who was born in Southern Illinois, and he was nominated at the 1896 Democratic convention in Chicago.

CONAN: Ken broadcast that convention.

RUDIN: I was, and I was wearing a T-shirt.

CONAN: It's our regular Wednesday political junkie conversation. In a minute, we'll look ahead to a possible Supreme Court retirement and take your calls. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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CONAN: This is TALK OF THE NATION. Im Neal Conan in Washington.

NPR political editor Ken Rudin is with us, as he is every Wednesday. If this is not enough, go to npr.org, where you can read his blog. You can download his podcast. You can solve his ScuttleButton puzzle.

But here on this program we're going to turn now to the Supreme Court, where John Paul Stevens is 89 years young. He's the oldest member and says he plans to retire from the court sometime during the Obama presidency. Now there are signs that may happen sooner rather than later.

Justice Stevens has given interviews to several reporters, including our own Nina Totenberg, and hired just one clerk for the next term. Most justices hire on four. There's been a wave of speculation about when he may retire, who may replace him and what the tone of the confirmation hearings might be like.

On "Fox News Sunday," Democratic Senator Arlen Specter says he is not looking forward to that happening anytime soon.

Senator ARLEN SPECTER (Democrat, Pennsylvania): I hoped (unintelligible) a little earlier, that Justice Stevens does not retire this year. I think the gridlock in the Senate might well produce a filibuster, which would tie up the Senate on a Supreme Court nominee. I think if a year passes, there's a much better chance we could come to a consensus.

CONAN: And asked if he anticipates a filibuster, Senator Specter's colleague on the Judiciary Committee, Republican Senator Jon Kyl...

Senator JON KYL (Republican, Arizona): I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test, and if he doesn't nominate someone who is overly ideological, I don't think you may see Republicans voting against the nominee, but I don't think you'll see them engage in a filibuster.

CONAN: So lawyers, whether you're overly ideological or not, who do you think might be a good person to replace Justice Stevens? Give us a call, 800-989-8255. Email us, talk@npr.org. And you can join the conversation on our Web site at npr.org. Click on TALK OF THE NATION.

Joining us now is Amy Howe, who edits SCOTUSBlog. She's also a partner at Howe & Russell and a lecturer at Stanford Law School, and she's kind enough to join us here in Studio 3A. Nice to have you on TALK OF THE NATION today.

Ms. AMY HOWE (Editor, SCOTUSBlog): Nice to be here.

CONAN: And are you among those who think this may happen, well, this month?

Ms. HOWE: I think it's very possible. The fact that he hadn't hired he'd just hired one clerk rather than the usual four was something that a lot of people were reading a lot into, but that combined with all of these interviews that he's given recently and suggesting that he would decide within a month, and then the political environment, all sort of point to a possible retirement very soon.

CONAN: The political environment meaning there are currently 59 Democrats and probably not as many next year.

Ms. HOWE: Exactly. The midterm elections, the clock is ticking, and they've got until November to confirm someone.

CONAN: But he is also well aware that this is a midterm election, and they're just off a bruising battle over health care.

Ms. HOWE: They are just off a bruising battle over health care, and so the question (unintelligible) Senator Specter, do you do it now, when the bruising battle is still so fresh in so many people's memories, or do you wait and then run the risk that the Democrats will lose seats or perhaps lost a majority altogether?

CONAN: So those are the calculations going into it. We talked with Nina Totenberg just the other day about this, and she said, look, John Paul Stevens, still sharp as a tack at age 89, plays tennis two or three times a week. Given his druthers, he'd like to stay.

Ms. HOWE: I think he would like to stay, and something that isn't talked about a lot is, you know, he's sharp as a tack, and he plays tennis every day, and he goes swimming, and - but there's also sort of a chicken and egg. Is part of the reason that he's sharp as a tack is that he's coming in to work either at the court or at his condo in Florida as a Supreme Court justice and is keeping his mind so fresh?

And I think he has seen, when some of his colleagues have retired in relatively good health, that then they have quickly gone downhill. And you know, he loves his job, and he's still very good at it, and he's still very, very influential on the court, and I think it's a role that he enjoys.

CONAN: And Ken, obviously the Obama administration has been through this process very, very recently; of course the nomination that we saw last year of the new justice, Sonia Sotomayor.

RUDIN: Right, and the same thing is expected ideologically this time, and the fact is that replacing John Paul Stevens with a liberal, assuming that President Obama names a liberal, will not cause the World War III that might happen should a conservative justice like well, anybody, like Scalia or Thomas, anybody resign and then be replaced by an Obama appointee, where this time it would be a liberal replacing a liberal, as it was with Sotomayor.

Ms. HOWE: I think that's right. I think, and particularly when you talk about the candidates that are on the so-called short list, although the White House denies...

CONAN: Denies, of course there's no short list.

Ms. HOWE: There is no file in the White House computer that is labeled short list. But you know, if you talk about the folks who are on the short list, I think that there's a sense that the court will ideologically probably stay about the same. With one of the candidates on the short list, it's possible the court could move sort of incrementally to the right.

You'd be losing Justice Stevens and his role as a tactician, which is not something that should be underestimated - you know, his role as the leader of the court's liberal wing and the one that, on the big 5-4 decisions, is able to bring Justice Kennedy over to the so-called liberal side. But as a general matter, I don't think you'd see much of a shift in the day-to-day operations of the court.

CONAN: And this is also a matter of, well, practical politics. Last time the Obama administration nominated somebody who, in retrospect, was unbeatable.

Ms. HOWE: That's right, that's right. And so, I mean, the stuff that you're hearing now from Senator Kyl, those are sort of the warning shots across the bow. They recognize that right now, if Justice Stevens retires, you know, they can't fight an overall nominee, but they can try to shape who the nominee is.

They essentially are saying to the Obama administration: You're going to have a fight, but you can choose how big it's going to be, given that you've got other priorities like jobs and regulatory reform and climate change that you want to take care of as well, particularly jobs going into the 2010 midterm elections.

CONAN: And Ken?

RUDIN: Well, actually, talking about a fight, I mean, Elena Kagan, who's the solicitor general, who's been mentioned at least on that short list, is perhaps more acceptable to Republicans than, let's say, Diane Wood, the federal judge from Chicago, who's more liberal.

Ms. HOWE: That's right. I mean, the thing with Elena Kagan is nobody knows really where Elena Kagan stands on so many issues, but Diane Wood, she's very well-respected, she's very smart, she's been a federal judge for 15 years. But when you're a federal judge for 15 years, you have opinions on things like abortion.

CONAN: You've published opinions.

Ms. HOWE: Yes, abortion rights, and the last thing the Obama administration wants to be doing right now is having a fight about abortion rights.

CONAN: So better to have somebody who would be another thing that they're interested in younger than Judge Wood.

Ms. HOWE: Absolutely. Elena Kagan is a full 10 years younger than Judge Wood. She doesn't have a track record. What we do know about her is that she went into Harvard Law School as the dean, after having served in the Clinton administration, and was able to get sort of the factions to get along. It's sort of the academic equivalent of brokering the Arab-Israeli peace accords. And so she's got a lot of conservative support.

CONAN: And but able to use that magnificent phrase: I could not talk about an issue that may come before me on the court.

Ms. HOWE: Exactly. We don't know anything about Elena Kagan's stands on so many issues, and we do but the one thing that we do know is that we're not going to learn anything more during her confirmation hearing.

RUDIN: One little bit of trivia that Nina Totenberg talked about this morning on MORNING EDITION is that if John Paul Stevens is, for example, replaced by Kagan or something like that, there will be no Protestant on the Supreme Court for the first time in history.

Ms. HOWE: That's right. Diane Wood, by the way, Protestant, but...

RUDIN: But Kagan or Jennifer Granholm...

Ms. HOWE: I don't know Jennifer Granholm. Merrick Garland is one of the other members of the short list.

RUDIN: He's Jewish, and Granholm is Catholic.

Ms. HOWE: Is Jewish as well. So...

CONAN: Well, all right. If you think you have somebody you would like to nominate for the Supreme Court, give us a call at 800-989-8255. Email us, talk@npr.org. Olga is on the line calling from Washington, D.C.

OLGA (Caller): Hi there.

CONAN: Hi, Olga.

OLGA: My choice would be William Van Alstyne(ph). He's a First Amendment scholar and much-cited law professor. He testified before Congress during the impeachment hearings and convinced during the Clinton impeachment hearings, excuse me, and convinced them that they had more than two choices, whether to impeach or nothing at all.

He's pretty moderate with strong liberal credentials. That would be my choice.

CONAN: I covered those hearings, so I'm sure I knew who he was then, but I can't, I can't bring him to mind now. Amy Howe, do you know him?

Ms. HOWE: I know a little bit. I know that if he has strong liberal credentials, he's probably not likely to be nominated to the Supreme Court anytime soon.

(Soundbite of laughter)

OLGA: He was in the Air Force.

(Soundbite of laughter)

Ms. HOWE: Which yes, no, I mean...

OLGA: I think that made him more liberal at the end of the day.

(Soundbite of laughter)

CONAN: It could be. Olga, thanks very much for the call. Ken?

RUDIN: But you know, there are some people who are saying that given the fact that the Obama administration won with the health care stuff, maybe this is a time to just not be cautious and name a liberal and let the fight go on.

CONAN: Well, that's what the left wing of the party would like.

Ms. HOWE: That is what the left wing of the party is saying. I think the Obama administration's response is: We got you health care. Now we need to move on and try and do something about jobs.

CONAN: Let's get Michael on the line, Michael calling from Cape Cod.

MICHAEL (Caller): Yes, during the first vacancy, after Justice Souter retired, there was some discussion of nominating someone from outside the judicial branch of government, and one name that I saw thrown around was the governor here of Massachusetts, Duval Patrick, as a potential nominee to the Supreme Court.

CONAN: And a friend of the president's as well.

Ms. HOWE: And a friend of the president's, and he's African-American. I have not seen his name mentioned lately. I know he's in a tough re-election fight, and I think sort of going back to what we said, I think the administration's inclination right now is to go and try and get this done as painlessly as possible and to move on to other things. But you know, a lot of people have talked about him as a possible nominee.

CONAN: Another governor who's been mentioned, Janet Napolitano last time around.

Ms. HOWE: Janet Napolitano was mentioned last time around. You do not hear her name mentioned much this time around. I think I've got three words for you: The system works.

CONAN: Right, okay.

Ms. HOWE: And the system is working now.

CONAN: I see. Michael, thanks very much for the call. Let's see if we can go next to this is Nina, Nina calling from Philadelphia.

NINA (Caller): Yes, thank you. How about Midge Rendell?

Ms. HOWE: Yes.

NINA: I'll take my answer off the air.

CONAN: Okay, Nina. Thank you.

Ms. HOWE: Her name came up last time. She was 60 last year when I talked about this on another show, which would make her...

CONAN: Sixty-one.

Ms. HOWE: Sixty-one. I'm good at math. So I think that alone is probably enough to disqualify her.

CONAN: And what's her background?

Ms. HOWE: Her background - she is a judge of the U.S. Court of Appeals for the Third Circuit, which is the Court of Appeals that gave us Samuel A. Alito. And she's also the wife of the governor of Pennsylvania.

CONAN: Now, let's go next to Sammy, Sammy with us from San Francisco. Sammy, are you there?

SAMMY (Caller): I'm Sammy - Sammy Chan(ph).

CONAN: Go ahead. You're on the air.

SAMMY: Oh, hi. My choice - well, I'm Chinese-American so I may have a bit of ethnic bias. My choice will be Justice Ming William Chin of the California Supreme Court, appointed to the bench by then-Governor Pete Wilson, a Republican.

CONAN: So a Republican...

Ms. HOWE: Lots of bipartisan credentials.

CONAN: And...

Ms. HOWE: And he would be the first Asian-American. I know that State Department legal adviser Harold Koh has also been mentioned as a possibility for the same reason. I apologize...

CONAN: Harold Koh, a champion of the liberals too.

Ms. HOWE: A champion of the liberals, which is why he will not be nominated. I don't know, unfortunately, much about the California justice.

CONAN: Let's get Barry on the line, Barry with us from Jacksonville.

BARRY (Caller): Yeah, I'd like to see Hillary Clinton nominated for the Supreme Court.

CONAN: Who Harold Koh gets to work for at above.

(Soundbite of laughter)

Ms. HOWE: That would be an interesting confirmation, but I think we would like to cover that.

CONAN: Well, you could get a twofer. How about Hillary and Bill?

Ms. HOWE: Hillary and Bill. He could be her law clerk.

CONAN: Barry, thanks very much for the call. And let's get one - this is John, John with us from Sunnyvale in California.

JOHN (Caller): Hello.

CONAN: Go ahead.

JOHN: Yeah. I'd like to see Sandra Day O'Connor.

CONAN: Re-nominated. Do you think she can get confirmed this time?

Ms. HOWE: She could probably - well, I think that the right might vote against her. She is not predictable enough. But you know, she's certainly - she's still very busy. She hears cases on the Court of Appeals and is heavily promoting the idea that state supreme court justices should not be elected.

CONAN: Ken?

RUDIN: The last trivia question. The last Supreme Court justice who was on the court, left the court and came back: Charles Evans Hughes.

CONAN: Charles Evans Hughes.

JOHN: Yeah.

CONAN: Okay. All right. John, thanks very much...

JOHN: Do I get a T-shirt?

CONAN: No. You have to you have to pay. You have to pay for your T-shirt. Everybody else has to get the trivia question right. We're talking with Amy Howe, who's the editor at SCOTUSBlog, also a partner at Howe & Russell, and a lecturer at Stanford Law School, joining us here in Studio 3A. That's a long commute. And Ken Rudin, of course, our Political Junkie is with us. You're listening to TALK OF THE NATION, coming to you from NPR News.

Let's go to Raoul, Raoul with us from Berkeley.

RAOUL (Caller): Yes. Thank you. I believe it is time actually for a fight because the Supreme Court has been under attack for quite a while, and it's time that someone stepped forward from the liberal side. I think someone outside the judicial system, perhaps someone like Mario Cuomo.

CONAN: Former governor of the state of New York and...

RAOUL: Yes.

CONAN: ...former - well, the Hamlet on the Hudson, as he was known.

RAOUL: Someone who's savvy and has, of course, a very strong legal background...

CONAN: Indeed.

RAOUL: ...legal - political - his understanding...

CONAN: But Amy Howe, Hamlet of the Hudson because he mused and mused and mused about a possible nomination...

Ms. HOWE: Yes. He had a chance and...

CONAN: ...and then decided against it.

Ms. HOWE: ...turned it down.

CONAN: Yeah. He's also a little old for this job.

Ms. HOWE: He's also a little old, but, you know, I think there a lot of people who echo your sentiment about going for a liberal justice.

CONAN: Email from John. Outside the box - Gary Locke, current commerce secretary, already been through confirmation hearings, B.A. Yale, J.D. Boston U., former eight-year governor of Washington State, Chinese American.

Ms. HOWE: Okay.

CONAN: Okay. Well, how do ethnic politics and sexual politics play into this?

Ms. HOWE: Sexual politics - you know, if you look at the shortlist this time, there is at least one man on it - Merrick Garland, which really when you looked at the shortlist last time, there were no men on it at all. So I think it is more likely to be a woman, but, you know, you can't rule out the possibility of a man. If a slot were to open up now, I mean, I think that when the last slot opened up, the president really felt compelled to pick a woman, even though he was replacing a man. There was only one woman on the court, and both Justice Ginsberg and Justice O'Connor had made very clear that they thought it was time for another one.

CONAN: Let's get one last caller in. Nathan, Nathan with us from Roanoke in Virginia.

NATHAN (Caller): Hey.

CONAN: Hi.

NATHAN: It's good to be on the show. Long time listener.

CONAN: Thank you. Who's your nominee?

NATHAN: Jimmy Carter, former president of the United States.

CONAN: Jimmy Carter would have a hard time getting through confirmation hearings, I would think, but also a little on the old side.

Ms. HOWE: A little old - he has a PhD. He's very smart. Don't believe he's a lawyer.

CONAN: And a nuclear engineer.

Ms. HOWE: A nuclear engineer.

CONAN: Yes. Thanks very much for the call. I can't even mispronounce it right. Amy Howe, if you had to pick one, who would it be?

Ms. HOWE: If I had to pick one...

RUDIN: Who's it likely to be?

Ms. HOWE: It is very likely to be Elena Kagan.

CONAN: Elena Kagan? We will see if the current solicitor general of the United States moves from the front of the bench up to the top of the high court itself and becomes a replacement for Justice John Paul Stevens, who may retire as soon as this month - or announce his retirement. He, of course, will announce he'll stay on until his replacement takes - gets confirmed. Thanks very much for being with us, SCOTUSBlog.

Ms. HOWE: Thanks for having me.

CONAN: And Ken, one item we did not get to in the potpourri earlier in the show. The last caller was from Virginia, where it was quietly proclaimed by the new governor there, it's Confederate history month.

RUDIN: You know, first of all, I suspect this might hurt his reelection chances since Virginia governors don't get reelected. You can't deny the fact that the Civil War is part of the culture of Virginia, but why now? Why when there's racial epithets being, you know, thrown at members of Congress, when you have the first African-American president, Virginia elected a black nominee for gov for president for the first time since '64, why inflame people right now when - just seems very unnecessary.

As a matter of fact, there was language - there was anti-slavery language thrown in by Jim Gilmore, the last Republican governor...

CONAN: Eight years ago, the last time this was proclaimed.

RUDIN: And Bob McDonald took that language out as well. He says voters don't care about that (unintelligible) it's irrelevant to people today. I think it's just a wrong time and strange time to be doing it.

CONAN: In any case, we've gotten some corrections via Twitter. BrianTW(ph) and Shandelbars(ph) both say the 1916 convention was in New York City.

RUDIN: I have no comment.

(Soundbite of laughter)

CONAN: Ken Rudin, our Political Junkie...

RUDIN: I will check that.

CONAN: ...usually we'll get back to you on this next week with the correct analysis of the trivia question this week.

RUDIN: Charles Evans Hughes.

CONAN: Charles Evans Hughes, yes. All right. We'll nail that down and get back to you on that next week. We may have a couple of T-shirts to give out. Stay with us. It's the Political Junkie every Wednesday on TALK OF THE NATION.

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