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For some, the hell of what might have been

By MICHAEL KIRKLAND   |   April 25, 2010 at 4:33 AM   |   Comments

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WASHINGTON, April 25 (UPI) -- The U.S. Supreme Court, like the presidency, produces its fair share of might-have-beens -- candidates so close to getting power they can almost grasp it -- only to have it slip through their fingers.

One of those also-rans probably was Kenneth Starr, former Whitewater independent counsel. Starr never came close to a nomination, but politics aside, many would argue he deserved one. More on that later.

President Barack Obama's search for a successor to Justice John Paul Stevens, 90, will leave plenty of might-have-beens bruised and sore after the vetting process though only one of those on the purported "short list" of 10 will win the prize and the right to get kicked and pummeled in Senate confirmation hearings.

If there's any doubt that U.S. Solicitor General Elena Kagan is the front-runner to succeed Stevens on the high court, it certainly has been dissipated by the mounting attacks against her. Kagan might as well have a bulls-eye on her back.

Conservative opponents are focusing on an e-mail Kagan sent to Harvard Law School students and faculty in October 2003, four months after she became dean. Military recruiters were invading the campus in violation of Harvard's anti-discrimination policy -- the military tolerated homosexuals in uniform only under the "don't ask, don't tell" standard.

Instead of celebrating Harvard as a marketplace of ideas -- including those of the military -- Kagan bemoaned that under federal law, the school would have to help the recruiters do their job.

"This action causes me deep distress," Kagan wrote. "I abhor the military's discriminatory recruitment policy ... (which is) a profound wrong -- a moral injustice of the first order."

Those words will return to haunt her if Kagan appears as a nominee before the Senate Judiciary Committee.

A more insidious attack came courtesy of CBS News and a former Bush administration official and Republican Senate staffer.

Former GOP official Ben Domenech said in his CBS blog if Obama picks Kagan, it would please part of his base by nominating the "first openly gay justice."

CBS at first refused to remove the posting, despite White House scorn -- for the record, the White House said, it wasn't true -- but when it became apparent that Domenech had no evidence for his claim other than unspecified "rumors," the network tried to appear as if the whole thing had somehow escaped detection by its editorial filters.

Further embarrassment for CBS: The Washington Post said it hired Domenech as a conservative blogger in 2006, but he resigned three days later after liberal Web sites raised plagiarism allegations.

Only time will tell if the attacks will continue, or if they have the clout to knock Kagan out of the running.

Another name mentioned by most news outlets as one of the Supreme Court front-runners is Chicago U.S. Appellate Judge Diane Wood.

Wood was a front-runner as well last year when Obama sought a successor for retiring Justice David Souter. She returned from an interview with the president with both her friends and the White House describing the meeting as a great success.

She lost out to New York U.S. Appellate Judge Sonia Sotomayor, who became the first Hispanic on the high court.

Wood is the favorite among progressives in the Democratic Party, and is often described as the most liberal of the candidates to replace the liberal Stevens. As a result, news reports are pouring cold water on her chances.

Though her expertise is in antitrust, federal civil procedure and international trade and business -- she has taught all three subjects -- her stance on abortion is cited as a non-starter.

Wood is widely praised for standing up to conservative judges on the issue, while remaining friends with the same judges. But that is unlikely to endear her to conservative critics, or Republican senators.

The abortion issue, especially her opposition to bans on late-term abortions -- something that Stevens also opposed -- is "her Achilles' heel," Curt Levey, executive director of the Committee for Justice, told The Washington Post. The committee opposes Wood's appellate rulings on abortion. "It tells you that she's probably not going to be selected, because Obama doesn't have the stomach for this to be about an abortion debate."

Meanwhile, amid reports Obama will act fast in settling on a nominee, new names are flying around the media as Supreme Court possibles.

One name that keeps surfacing is that of Chicago Appellate Judge Ann Williams, the first black judge on the 7th U.S. Circuit Court of Appeals.

The Chicago Tribune says the White House has confirmed she's on the short list. The Chicago Sun-Times reported Williams and another candidate with Chicago ties, Harvard Law School Dean Martha Minow, have surfaced as leading contenders. The Sun-Times said five of the 10 leading contenders have Chicago connections: Kagan, former University of Chicago law school professor; Wood and Williams on the 7th Circuit; District of Columbia federal Appellate Judge Merrick Garland, born in the Chicago suburb of Lincolnwood and a Clinton appointee said by many conservatives to be the most acceptable nominee; and Minow, graduate of a suburban Chicago high school.

Williams is getting a lot of attention -- she was picked by President Ronald Reagan as a federal judge -- but at least one anti-abortion site, LifeNews.com, says her position on abortion is relatively unknown. Whether that will swell to importance for the left or the right if the spotlight ultimately shines on her is unknown.

CBS News also says the White House has confirmed Williams is on the short list, but points out that she is 61 -- old nowadays for a lifetime appointment to the Supreme Court -- and says she is not considered "a judicial superstar."

CBS said it discovered nine names on the short list: Kagan; Wood; Garland; Williams; Minow; Montana-born San Francisco federal Appellate Judge Sidney Thomas, a Clinton appointee; Michigan Gov. Jennifer Granholm, Canadian-born; Secretary of Homeland Security Janet Napolitano, former Arizona governor; and Lean Ward Sears, former chief justice of the Georgia Supreme Court, considered an unlikely pick after facing ethics allegations for campaign contributions.

Two of the most famous Supreme Court also-rans in the modern era were U.S. Appellate Judges Clement Furman Haynsworth Jr. and George Harrold Carswell. Both were accused of handing down pro-segregation rulings.

Carswell's nomination wasn't helped when a conservative Republican senator said mediocre people needed representation on the Supreme Court too.

Both were nominated by President Richard Nixon and both suffered the indignity of losing an up-or-down vote in the full Senate, with Democrats and Republicans on both sides of the vote.

Much of the rancor in the process today originated in 1987 when the Senate rejected former U.S. Solicitor General and Washington U.S. Appellate Judge Robert Bork, whom Democrats attacked as an extremist.

President George W. Bush nominated White House counsel Harriet Miers in 2005 to replace retiring Justice Sandra Day O'Connor, but withdrew the nomination before a vote after Democrats and Republicans questioned her capacity to serve.

A far lesser-known might-have-been scenario involved Justice Stephen Breyer.

Breyer was chief judge on the 1st U.S. Court of Appeals in Boston, and a protege of Sen. Edward Kennedy, when President Bill Clinton first considered him for the high court. Instead of Breyer, Clinton chose New York U.S. Appellate Judge Ruth Bader Ginsburg.

But Breyer won the prize the following year as Clinton's second appointment to the high court.

Re-arrange a few things -- a final recount in Florida in the 2000 presidential race and more voting booths in highly Democratic Cleveland in 2004 -- and Breyer might have become chief justice.

The Supreme Court, of course, put a stop to the 2000 race in Bush vs. Gore.

Sen. John Kerry of Massachusetts, the Democratic presidential nominee in 2004, was at first declared the winner in Ohio exit polls -- which would have won him the presidency, despite losing the popular vote -- but thousands of voters were left standing in line in the Cleveland area trying to use an inadequate number of voting booths, and the state went to the incumbent Bush.

Bush went on to a second term and nominated Washington U.S. Appellate Judge John Roberts Jr., first as a Supreme Court justice, and, following the death of Chief Justice William Rehnquist, as Rehnquist's successor.

A Democratic president, particularly Kerry, would have had to look hard at Breyer as a Rehnquist successor, given Breyer's deep political support in Massachusetts and on Capitol Hill.

But two of the most spectacular might-have-beens are Starr and attorney Ted Olson.

Starr is mostly known as the Whitewater independent counsel, and Olson as the successful lawyer in Bush vs. Gore.

In the 1990s and the 2000s, the two have been among the most brilliant appellate lawyers in the country.

As the dominant lawyer in the conservative movement and a former U.S. solicitor general, Olson would have been a natural for selection to the Supreme Court during the Bush administration. He was considered by Bush for the high court, but never nominated, and also considered for the job of U.S. attorney general.

Olson was linked to the so-called Arkansas project -- which tried to whip up anti-Clinton hysteria in the 1990s -- and even the suggestion that he might be nominated to the high court met with vociferous Democratic opposition.

Starr was an outstanding attorney at Chicago's Kirkland & Ellis before he led the $80 million Whitewater investigation of Clinton and then-first lady Hillary Rodham Clinton. The long-running investigation leaped from allegation to allegation until finally nailing the president on a charge of lying under oath about sex with Monica Lewinsky during the Paula Jones sexual harassment suit.

The investigation's conclusions led to Clinton's impeachment in the U.S. House in December 1998 though the president was acquitted in the Senate in February 1999.

Starr, a former U.S. appellate judge in Washington, remains quietly competent, commands enormous respect when he appears before the Supreme Court, has worked pro bono for death row inmates and is personally humble and enormously likable. In 2004 he said he wished someone else had conducted the Lewinsky phase of the investigation.

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