A lot of people have been asking me over the last few days whether or not I think President Obama will go for a bold nominee or select a safe person who can be easily confirmed. Frankly, I’m not sure but if I had to bet my house it would be on Elena Kagan.

If the President were to consider a more bold nominee, he would take a series of steps, maybe even starting later this week, to soften the announcement of his pick and to start controlling the story before the final name is ever announced.

First, the President would leak a series of names that make his nominee look moderate. The administration would want to get the current ‘short-list’ out of the news because it is hard to imagine any nominees being more moderate than Elena Kagan. The administration might leak names like Harold Koh, Kathleen Sullivan, and Pamela Karlan. We might even have a report of Koh meeting with staffers in the west wing for three hours on a Saturday morning. The same strategy would come into play if the President wanted to select a politician, but we might hear leaks like Deval Patrick and Jennifer Granholm. I would be surprised if President Obama didn’t start moving a nominee into place in the next two weeks. The timing of Justice Stevens’ announcement gives the President adequate time to soften the blow of a bold nominee by letting groups of similarly ideological candidates test the waters for enough time to get a thorough first-impression. As long as he announces his nominee befor June, the nominee should have little trouble being confirmed before the start of the court’s term in October.

The administration has already started to disassociate itself with the oft-mentioned shortlist with Garland, Kagan, and Woods. By all accounts, the President still hasn’t completely made up his mind but putting out test balloons early would help him leave his options open.


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