Photo: Jill Brady/The Vigil

Minnesotan Coleen Rowley has emerged in the last few days as a potential “off-the-grid” nominee for the U.S. Supreme Court. Rowley’s addition to unofficial SCOTUS “long lists” (as opposed to shortlists) comes as U.S. Sen. Amy Klobuchar downplays chatter that she might be tapped to replace retiring Justice David Souter.  

Interest in Rowley seems to have originated with Nadine Strossen, a professor at New York Law School and former longtime president of the American Civil Liberties Union.

Strossen was among a dozen experts on constitutional law and the Supreme Court consulted by the National Law Journal for an article on possible nominees that appeared online Tuesday.

She’s first quoted as saying that President Obama should not name a white man: “It would create a negative implication — there are no extraordinary, well-qualified women or underrepresented minorities available.”

Two candidates she proposes also teach law: her New York Law School colleague Annette Gordon-Reed and Stephen Carter of Yale Law School.

Then, as paraphrased by reporter Marcia Coyle, Strossen adds:

And, she asked, why not someone whose understanding of and commitment to the law have been tested in the most difficult circumstances, such as FBI whistleblower and lawyer Coleen Rowley and former U.S. Navy Lt. Cmdr. Charles Swift, who represented Guantánamo detainee Salim Hamdan?

Rowley clearly appeals to Strossen on her merits — but it may not hurt her cause that Strossen hails from Minnesota. (After earning undergraduate and law degrees from Harvard University, Strossen returned to her home state to clerk at the Minnesota Supreme Court in 1975 and 1976 and was in private practice in Minneapolis from 1976 to ’78.)

On Wednesday, the conservative National Journal added Rowley, along with others from Coyle’s article, to its long list, which now numbers 41 names, from the obscure to such agreed-upon frontrunners as Judge Diane Wood, Elana Kagan and Sonya Sotomayor.

Rowley laughed off the SCOTUS speculation in an email to the Minnesota Independent:

A bit of comic relief?  Long shot would be an understatement!

I did consider, for a couple weeks, trying for head of the Office of Special Counsel just because it has an awful history of being totally ineffective and there are a lot of government whistleblowers who were hoping for someone to reform OSC which would require someone with independence from the agencies and therefore from outside the beltway.  But for a lot of reasons, I declined to pursue it. I would have been an extremely long shot for that position too although OSC is apparently the smallest government agency that exists — it’s only like 100 attorneys or something like that.

I don’t know anyone in the Obama Administration except one of his press people, Dan Burton, who is a former DCCC [Democratic Congressional Campaign Committee] press guy and, interestingly enough, a former congressional staffer for Bill Luther when Luther was [Minnesota] CD 2 Congressman. Burton happened to be in Minnesota for a wedding when I announced my campaign for congress in July 2005 and he came for the event. I’ve only exchanged one short e-mail with him in the last two years. Interestingly enough, a year or so before the election in 2008, Burton saw one of my HuffPosts against torture and said to keep up the good work or something like that.

Photo: Conservapedia

Klobuchar, a former Hennepin County attorney, doesn’t appear on the National Journal list, but she has been received high-profile mentions elsewhere.

Her status as a potential nominee was the first topic of conversation when she appeared for an hour Wednesday on Minnesota Public Radio’s “Midday” program.

Host Gary Eichten asked whether she might soon don judicial robes instead of the two hats she currently wears as Minnesota’s junior and senior U.S. Senator while the Norm Coleman/Al Franken election contest drags on. Klobuchar’s reply:

I would say this: Minnesota has only one senator and it needs at least one senator. So it’s nice to have my name being sort of bantered [sic] about, but I don’t think that that’s in the cards right now. I did talk to the president this week. He called me and talked to me a little bit about, just in general, the Supreme Court nominee and what I think was important in that nominee. We had a very good discussion and I know he’s very interested in getting this through as soon as possible. … Let’s just say we’re focused on moving forward and I’m Minnesota’s Senator. And that’s it.

If there was more to that conversation than Obama is letting on, Klobuchar succeeded at hiding it better than the brazen Christine Arguello, a federal judge in Denver, or the cagey Judge Wood.

Klobuchar went on to say that being a woman shouldn’t be a litmus test for Obama’s choice in a nominee — at least not for this, his first appointment to the Supreme Court.

Here is the audio of Klobuchar on MPR (Supreme Court discussion begins at the 3:08 mark):

“I tend to doubt it,” Starr said, though he said the court sometimes “surprises us all” by taking cases that at first blush don’t seem likely to succeed. There have been times, Starr said, when the “smart money was wrong.”

Starr also acknowledged being “very disappointed” to be passed over as a Supreme Court nominee during the first President Bush’s administration. Bush’s choice instead: David Souter, who just announced his retirement.

Starr, who demonstrated an exceedingly smooth radio voice on WCCO, also spoke at the University of Minnesota Tuesday night. Did he say anything startling? Leave a comment if you were there.

UPDATES: The U of M tells MnIndy that the audio from Starr’s speech will be online in about a week. Also, MinnPost has an interview with Starr covering a wide range of topics (he doesn’t say much on Coleman-Franken though). WCCO audio is here (via TPM).

Photo: Wikipedia

Norm Coleman should be crying crocodile tears over David Souter’s imminent departure from the U.S. Supreme Court. The former senator may yet bring an election case to the nation’s high court that relies on the 2000 Bush v. Gore recount ruling. Souter abhorred the Bush v. Gore decision more viscerally than any successor ever could.

Here’s how much Souter despised the Bush v. Gore decision, as recounted in New Yorker reporter Jeffrey Toobin’s 2007 book, “The Nine“:

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal.

Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

Souter was more restrained in his written dissent in Bush v. Gore. More remarkable was that the majority opinion that gave George W. Bush the presidency also famously proscribed using the decision as precedent:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Yet in the brief he submitted to the Minnesota Supreme Court on April 30, Coleman cited Bush v. Gore five times.

On pages 1–2:

Whether the trial court violated the constitutional protecxtions of equal protection and due process when it imposed a strict compliance standard for rejected absentee ballots rather than a substantial compliance standard like that actually applied by election officials (and in accord with this Court’s longstanding policy favoring enfranchisement)? … Apposite Authorities: … Bush v. Gore, 531 U.S. 98 (2000) …

On page 23:

The applicability of the guarantees of equal protection and due process in the Fourteenth Amendment to the Constitution also made such evidence [of absentee ballots counted on Election Day not meeting the election contest court's standards] relevant. Those guarantees mandate that all similarly situated absentee ballots be reviewed under a uniform standard uniformly applied. See, e.g., Bush v. Gore, 531 U.S. 98 (2000) …

On page 41:

But the Constitution protects “more than the initial allocation of the franchise.” Bush v. Gore, 531 U.S. at 104. It also protects the right of all qualified voters to have their votes counted equally. Id. …

If the state fails to apply “specific standards during a statewide recount that will ensure “equal application” to all votes, the lack of uniform standards is a constittional violation. Bush, 531 U.S. at 106.

On pages 42–43:

The trial court’s attempt to distinguish Bush v. Gore, which makes clear that different areas of the state applying different interpretations of an applicable standard is unacceptable under the Constitution, is not persuasive. There is no logical distinction between the unequal treatment of equivalent chads caused by the Florida Supreme Court’s imprecision (different counties interpreting the court’s holding differently) and the unequal local treatment of absentee ballots caused by imprecision in officials’ understanding and intentional application of the statutory standard set forth in Minn. Stat. 203B.12, subd.2. Just because Minnesota’s standard was set by statute rather than court decision does not excuse the constitutional requirement that the standard be applied uniformly. In both cases a standard has been inconsistently applied as the result of official imprecision. Indeed, because it leaves standing — and therefore, ratifies — local decisions made in accordance with their own interpretative gloss on the statute, without insisting on strict compliance for all absentee ballots, the trial court’s decision itself confirms the same constitutional violation at issue in Bush v. Gore. Deliberate unequal treatment of similarly situated voters simply is unacceptable under federal equal protection law.

Once the first President Bush put him on the bench in 1990, Souter moved in a liberal direction, running opposite to Coleman’s Dem-to-Republican transformation. But it’s not Souter’s place among the court’s liberal minority that should make Coleman smile to see him go. (Obama can find a reliably liberal justice to replace him.) It’s Souter’s reviling of Bush v. Gore that Coleman should be glad to see vanish.

This is the first opportunity to name a new member to the nation’s high court for Obama, a Harvard University-trained lawyer himself who has taught constitutional law.

Given the schedules of the U.S. Supreme Court and the Minnesota Supreme Court — which is hearing oral arguments in the Norm Coleman-Al Franken Senate-election dispute on June 1 — Minnesota may finally have two U.S. Senators again by the time Obama’s nominee to replace Souter comes before the full Senate.

The state’s one sitting Senator, Amy Klobuchar, serves on the Judiciary Committee, which reviews nominees to the high court.

Obama is likely to pick a woman, many court-watchers believe. According to Daphne Eviatar at the Washington Independent (the Minnesota Independent’s sister site), a short list of potential nominees includes:

Elana Kagan, Obama’s Solicitor General

Sonia Sotomayor, a federal appeals court judge in New York who (like Souter) was nominated by the first President Bush

Diane Wood, a federal appeals court judge in Chicago nominated by President Clinton