Corresponding from sunny Malta, where he is currently serving as ambassador, prominent constitutional law expert (and conservative supporter of President Obama) Douglas W. Kmiec is sticking with the view he espoused prior to the 2008 election that Carter G. Phillips of Sidley Austin should be considered for a position on the Supreme Court if Justice John Paul Stevens retires. In an email, Kmiec said Phillips would be “a nominee with Stevens’ gifts but also the ability to form majority coalitions far more regularly.” Phillips would have the nous to “make the big plays and win the close contests,” Kmiec added. Back in 2008, Phillips laughed off Kmiec’s endorsement and he hasn’t been mentioned in any of the lists of potential candidates.
As for other candidates that are on most shortlists, Kmiec agreed with most experts that Elena Kagan, the solicitor general, and Judge Merrick Garland of the D.C. Circuit would be solid choices. But he dismissed the chances of Massachusetts governor Deval Patrick and State Department legal adviser Harold Koh (who is effectively a colleague of Kmiec’s). Both are ” lawyers of distinction and would be attractive from a diversity perspective,” he said, the latter point a reference to the fact that Patrick is African-American and Koh is Korean-American. But, Kmiec added, “frankly, these potential nominees have been telegraphed to the opposition, which in this season of tea-party madness, could easily get roughed up early, and much to their discomfort and the President’s disservice, rejected or blocked.” Kmiec concludes by producing another name out of the hat: “the ebulliently intelligent, multi-party Walter Dellinger,” the former acting solicitor general, now at O’Melveny & Myers.
NOTE: Kmiec stressed that he was speaking in his personal capacity.