Given the strong evidence that Justice Stevens is planning to retire, I intend to review the records of leading Supreme Court candidates over the coming months. I was planning to wait until the New Year to start, but now that NBC’s Chuck Todd has bet that DHS Secretary (and former Arizona governor) Janet Napolitano will be the pick, I’ll offer some initial comments on her.
There’s ample reason to believe that Napolitano will once again be on President Obama’s short list—and that she’ll be the leading contender in the category of “governor or former governor.” Obama has made clear that he thinks highly of the idea of politicians as justices: During the presidential campaign, he cited Earl Warren as a model of what he would look for in a justice as he reiterated his now-notorious “empathy” standard.
Napolitano scores especially well on the various diversity criteria that some on the Left are pressing. She’s reported to be a Protestant (Methodist), whereas the eight remaining justices (if Stevens steps down) would all be, at least according to the usual media labeling, Catholics or Jews. She’s not an Ivy Leaguer; she went to college at Santa Clara and to law school at the University of Virginia. She’s not a federal appellate judge. And she’s not an Easterner: although she was born in New York City, she was raised in New Mexico and her professional and political career, before DHS, has been in Arizona. She’s also a breast-cancer survivor. (On the other hand, diversity mavens should note there are already two justices of Italian ancestry.)
Napolitano, having just turned 52, is also on the young end of the Obama candidates (and would be the youngest justice).
None of this, of course, would seem to have any bearing on Napolitano’s merits as a justice (with the exception of her background as a politician, which I regard as a decided negative). I’ll address her record—including her controversies at DHS—more fully in future posts. For now, I’ll highlight three aspects of her record as governor that may signal that she holds constitutional views that could be controversial: (1) In 2006, Napolitano vetoed a bill that, post-Kelo, aimed to protect property owners against abuses of the governmental power of eminent domain. (2) Napolitano vetoed numerous bills that would have protected gun rights. (A couple of examples are here.) (3) Napolitano vetoed numerous pro-life measures, including bans on partial-birth abortion, laws seeking to ensure informed consent and parental involvement, bars on taxpayer funding of abortion, and protection of conscience rights.