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Friday, May 22, 2009

Posted 2:45 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 22, 2009

3rd Circuit Committee in Kozinski Probe Completes Investigation

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - A special judicial committee of the 3rd U.S. Circuit Court of Appeals has completed its misconduct investigation of Chief Judge Alex Kozinski of the 9th Circuit in a long-running probe into sexually explicit photos found on a public Web site run by Kozinski, the Daily Journal has learned.

The committee sent its report and a recommendation regarding possible sanctions to the 3rd Circuit's judicial council in late April, according to a source close to the investigation who declined to be named because he was not authorized to speak about the matter.

U.S. Supreme Court Chief Justice John G. Roberts appointed the five-judge committee last June 16 to evaluate Kozinski's conduct in light of the photos, which showed nude women on all fours painted to look like cows, images of masturbation and public sex and other graphic material.

Kozinski, who keeps chambers in Pasadena, said at the time he was unaware that the site - www.alex.kozinski.com - was open for unrestricted viewing.

The results of the completed investigation have not yet been released.

Asked whether the investigation had hindered the 9th Circuit's operations, Kozinski replied Thursday, "I have been blessed with terrific staff and very helpful and understanding colleagues. We remain one of the busiest and most productive federal appellate courts in the country."

Kozinski and his attorney, Kirkland & Ellis partner Mark Holscher of Los Angeles, declined to comment further on developments in the investigation Thursday. But in an e-mail to the Daily Journal last June, Kozinski wrote, "I consider the server and its contents a private matter. It was not meant to be accessible by others, and I had no idea it was. I would have been more careful of its contents, had I known that it was."

Chief Judge Anthony J. Scirica of the Philadelphia-based 3rd Circuit, who heads both the special committee and the judicial council, did not return a call for comment.

One question the committee likely considered was whether Kozinski violated Canon 2A of the Code of Conduct for federal judges, which requires that "a judge must avoid all impropriety and appearance of impropriety" in "both the professional and personal conduct of a judge," according to official comment on the code.

The content of the report and the nature of the recommendation remain closely guarded. Kozinski had 21 days to respond to the committee's findings, under the rules governing federal judicial misconduct investigations. The 3rd Circuit's judicial council will next consider whether to discipline Kozinski, who called for an investigation into his own conduct after the Web site's existence was disclosed nearly a year ago. In re Complaint of Judicial Misconduct, No. 08-90035.

Kozinski can then appeal the 3rd Circuit's disposition of the complaint to the federal courts' policymaking body, the U.S. Judicial Conference.

New judicial misconduct rules, never before tested, allow for the transfer of such investigations to another circuit "in exceptional circumstances" that in Kozinski's case avoided the awkward prospect of having his subordinate judges scrutinize him.

Two complications may have slowed the investigatory process that has stretched on for nearly a year, according to lawyers experienced in judicial misconduct matters.

Roberts' order specified that the 3rd Circuit should investigate Kozinski's conduct on his Web site "and any pending or new complaints relating to the same subject matter."

That opened the door for Kozinski's chief antagonists to ship lengthy new written grievances to the 3rd Circuit.

One came from Leonidas Ralph Mecham, a former top federal courts administrator whose feud with Kozinski over internal 9th Circuit policy dates from 1998. Mecham sent a 38-page misconduct complaint in November focused on old claims that Kozinski had tolerated and protected the downloading of Internet pornography by federal judges and court employees.

Another complaint came from Cyrus Sanai, the Beverly Hills lawyer who originally discovered the damaging photos online. Indeed, Sanai said, lawyers retained by the 3rd Circuit to assist it in its probe solicited an affidavit from him recounting his involvement with Kozinski. Sanai added that he responded with a lengthy statement stressing his previous run-ins with the judge.

An authority on judicial misconduct matters, Arthur Hellman of the University of Pittsburgh School of Law said those add-on complaints likely bogged down the committee's inquiry.

"If the only question was whether Judge Kozinski took adequate precautions to keep his Web site private, this investigation would probably have been over long ago," Hellman said this week. "So it seems that the special committee was investigating more than that. The 'something more' could well be the complaints filed by Mecham and Sanai."

Even so, both Sanai and Mecham said 3rd Circuit investigators conducted no follow-up interviews based on their complaints, leading them to question whether their criticisms got a serious hearing.

"It's going to be a whitewash," Sanai predicted Wednesday. "They don't want to deal with these issues."

A second complication arose because the revelation about Kozinski's Web site forced him to recuse himself and declare a mistrial in a federal pornography prosecution he was hearing by designation in Los Angeles just as his Web site photos became public last June.

The Justice Department had charged defendant Ira Isaacs with importing or transporting obscene videos as part of a major Bush administration crackdown on pornography. The indictment linked Isaacs to at least 20 Web sites that sold movies containing scenes of bondage, defecation, urination and other graphic matter.

After the mistrial, Isaacs moved for dismissal of the charges on double jeopardy grounds. A different judge denied the motion, and Isaacs' appeal is currently before the 9th Circuit. U.S. v. Isaacs, 08-50423.

The investigation into Kozinski's Web photos and the Isaacs appeal converged last Oct. 30 when federal prosecutors wrote all 50 9th Circuit judges asking them to consider recusing themselves from the Isaacs appeal.

The Kozinski Web site photos, the federal prosecutors wrote, "were at least thematically similar to some of the materials in the videos that were the subject of the criminal charges against Isaacs."

The prosecutors in the Isaacs case noted in a May 4 pleading that "the appellate docket sheet does not reflect that the court has taken any action one way or the other in response to this notice."

That left open the question of whether the 3rd Circuit might have expanded its investigation to include the Isaacs matter.

Kozinski could be subject to further discipline if the council finds the judge's personal misconduct damaged the prosecutors' case in the Isaacs trial, Hellman said.

"One thing we don't know is whether the Ira Isaacs appeal will delay either the resolution of the Web site complaint or the public announcement," Hellman said. "First, the 3rd Circuit Judicial Council may want to wait for the outcome of the appeal, so that it will know whether Kozinski's recusal and mistrial declaration lead to a dismissal of the criminal case. Second, the 3rd Circuit may be concerned about prejudicing the appeal by issuing its findings while the criminal matter is still pending."

Thursday, May 21, 2009

Posted 10:40 PM by Howard Bashman

Posted 2:48 PM by Howard Bashman

Wednesday, May 20, 2009

Posted 7:45 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May. 20, 2009

Top Contenders for Souter's Seat Diverge on Key Issues

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Soon-to-retire Justice David H. Souter has quietly repudiated the judicial views of a female California judge some believe should replace him and endorsed those of one of the leading contenders in a majority opinion he authored this week involving the rights of women workers.

With most expecting President Barack Obama to replace Souter with a woman, the contrasting opinions of the two women judges on the issue of women workers' rights showed that judges of the same general ideology, and even of the same gender, don't always reach the same conclusions.

Monday's 7-2 ruling, which resolved a circuit split, held that telecommunications giant AT&T Corp. could not be held liable for refusing to grant pension benefits to female employees for maternity leave taken before a federal law on the matter was passed in 1978. AT&T Corp. v. Hulteen, DJDAR 7019.

That decision reversed a 9th U.S. Circuit Court of Appeals opinion written by Pasadena-based Judge Kim McLane Wardlaw, who has been promoted by Sen. Dianne Feinstein, D-Calif., and others as a possible replacement for Souter. Although reports suggest Wardlaw has not made Obama's shortlist, she would be the country's first Hispanic justice if nominated and confirmed.

At the same time, the Supreme Court's decision embraced the conclusion of the 7th Circuit in a 2000 case dealing with the same issues written by Judge Diane Wood, a frequently mentioned frontrunner to replace Souter.

The rulings may give the White House some insight into whether Wood and Wardlaw have "that quality of empathy" Obama has said he is looking for in his nominee.

Both the 9th and 7th Circuit cases addressed whether women plaintiffs could file gender discrimination lawsuits under Title VII of the Civil Rights Act because their maternity leave was not treated like short-term disability for the purpose of calculating their pension benefits. That meant their pension benefits ended up being lower than if their maternity leave had been treated as a disability.

Congress didn't pass the Pregnancy Discrimination Act, which required employers to count maternity leave as disability, until 1978. The plaintiffs, however, argued that even if the law didn't apply retroactively, they still had a claim because the pension benefits were calculated years after the law took effect.

In the AT&T case, decided in favor of the plaintiffs in August 2007, Wardlaw wrote for an en banc court that the phrase in the 1978 law stating "women affected by pregnancy" should be treated the same as those on disability leave applied to AT&T's calculation of benefits and not just to the leave itself. Hulteen v. AT&T, 2007 DJDAR 12527.

AT&T could easily have taken into account the plaintiffs' pregnancy leave when calculating the benefits, but the company "simply chose to continue its systematic discrimination against women, based on pregnancy, even after Congress made it illegal," Wardlaw wrote.

Wardlaw's ruling shows "she is closer to [Justice Ruth Bader] Ginsburg than Souter" in terms of her judicial philosophy, said a former 9th Circuit clerk, who declined to be named because she clerked at the time the court considered the AT&T case. The 9th Circuit decision "is also a good example of empathy for working women," said the former clerk, who is now a California labor lawyer.

Ginsburg's passionate dissent in Monday's case indicates she would be more in line with Wardlaw than Wood, at least on the issue before the court.

In her dissent, Ginsburg, who is the only woman on the court, stressed that the Pregnancy Discrimination Act was drafted to "protect women ... against repetition or continuation of pregnancy-based disadvantageous treatment." Ginsburg has said she would like to see more women on the high court and suggested in an interview with USA Today that women might approach certain cases differently than men.

The recent cases, however, suggested that even different women judges might approach certain issues differently.

In the 7th Circuit case, the almost identical issue was whether Ameritech Corp. had correctly calculated benefits for women who took pregnancy leave before the 1978 law went into effect. Ameritech Benefit Plan v. Communication Workers, 220 F.3d 814.

In her opinion on behalf of a three-judge panel, Wood wrote that she had an "obligation" to follow Supreme Court precedent and that the circuit court had to follow a different line of cases than those Wardlaw cited. Wood conceded that the distinction between the competing precedents was "subtle at best" but found that the employees could not "show the kind of intentional discrimination" required for their lawsuit to proceed.

She also noted that, unlike clearly discriminatory acts, such as unequal pay, "the women knew from the minute they took their pregnancy or maternity leaves that they were not getting full credit for their time off."

In the 9th Circuit opinion, Wardlaw openly criticized Wood's earlier ruling, describing it as "problematic" because it failed to apply the 1991 Civil Rights Act. She also said the decision contradicted the "express legislative directive" contained in the Pregnancy Discrimination Act.

But the 6th Circuit, in an opinion written by another woman judge, Karen Nelson Moore, embraced Wood's analysis when it decided the same issue in 2007. Leffman v. Spring Corp., 481 F.3d 428.

Marcia Greenberger, co-president of the National Women's Law Center, said she believes women bring a different perspective to cases than men but, as Wardlaw and Wood have shown, "all women don't think alike."

"I think it's important for the court to have justices that bring a broad range of experiences to bear," Greenberger said about the need for women justices.

Wood, along with Solicitor General Elena Kagan and 2nd Circuit Judge Sonia Sotomayor, are apparently at the top of the White House's shortlist of nominees, according to media reports.

Wardlaw, despite being the daughter of a Mexican-American woman, has failed to attract enthusiastic support from Latino groups in California, which instead have endorsed California Supreme Court Justice Carlos Moreno.

Other names mentioned include Michigan Gov. Jennifer Granholm and Janet Napolitano, a former Arizona governor who now heads the U.S. Department of Homeland Security.

Conservative activists have expressed particular alarm at the prospect of Wood's possible nomination, seeking to portray her as a liberal activist judge.

Wood "has consistently twisted the Constitution to deny the rights of religious people," the Judicial Confirmation Network, a conservative group, said in a memo released to the press.

Conservatives focus on her role in reviving a long-running case in which abortion rights supporters sought to apply the federal civil racketeering statute to prevent anti-abortion activists from organizing to obstruct access to abortion clinics.

Wood wrote the majority opinion in which the court held that the abortion rights group could seek injunctive relief from federal courts.

The Supreme Court reversed in 2003. NOW v. Scheidler, 537 U.S. 393, 402.

Conservatives view Wardlaw as less of a threat, which may reflect the slim chance she has of being nominated. They see her as an "open-minded" judge who has shown restraint in certain instances, particularly in criminal cases, according to Curt Levey from the Committee for Justice, another conservative group. Wardlaw has shown that "you can be liberal and believe in the rule of law," he said.

Obama is expected to announce his nominee within the next two weeks.

Wednesday, May 13, 2009

Posted 12:15 PM by Howard Bashman

Friday, May 08, 2009

Posted 10:30 PM by Howard Bashman

Posted 10:28 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 08, 2009

GENDER MAY BEAT ETHNICITY IN JUSTICE PICK
Obama Likely to Pick Woman for Supreme Court

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Latino legal groups are lobbying hard for President Barack Obama to appoint one of their own to the U.S. Supreme Court for the first time, but the overriding political pressure for a woman nominee could dash their hopes.

With only one woman, Justice Ruth Bader Ginsburg, currently on the court, most legal and political observers say they think the White House will appoint the nation's third ever female justice.

The question then becomes whether Obama will pick an Hispanic woman to replace Justice David H. Souter, who announced his retirement last week.

If Obama does, his options within the federal judiciary - where presidents most often look when seeking a Supreme Court justice - are limited, legal experts said.

Obama has indicated he is keen to take into account diversity of background and experience in choosing a nominee but has not said specifically whether he will appoint a woman or a minority.

Fewer than 4 percent of federal judges are Hispanic, according to the Congressional Hispanic Caucus, which notes that Hispanics make up 15 percent of the U.S. population as a whole.

Although two Hispanic women have been mentioned as leading candidates - Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals and, to a lesser extent, Judge Kim McLane Wardlaw of the 9th Circuit - no others are cited with any regularity.

Of the two, Sotomayor, who is of Puerto Rican descent and graduated from Yale Law School, has so far attracted the most attention, both from supporters and conservative opponents, who have highlighted her sometimes abrasive persona on the bench.

What may appeal to Obama, in addition to her gender, ethnicity and humble origins as the daughter of immigrants, is that she's experienced not only as a judge but also as an attorney in private practice and as a state prosecutor.

The other Hispanic woman candidate, Wardlaw, also comes from immigrant origins, being the daughter of a Mexican-American mother. Wardlaw graduated from UCLA School of Law and went on to make partner at O'Melveny & Myers.

She and her husband, attorney Bill Wardlaw, are both well-connected in Democratic circles. Her husband was once described as the "shadow mayor" of Los Angeles due to his close relationship with former mayor Richard Riordan, a Republican.

Legal observers have also suggested several male Hispanic candidates, such as Ken Salazar, the former Democratic senator for Colorado who is now Secretary of the Interior, and Ruben Castillo, a federal district court judge in Illinois. Members of California's Hispanic legal community have been promoting their favorite candidate - California Supreme Court Justice Carlos R. Moreno (see related story).

But most believe the White House would face more political heat for not appointing a woman than it would for failing to appoint an Hispanic.

Non-Hispanic front-runners include Solicitor General Elena Kagan, Judge Diane Wood of the 7th U.S. Circuit Court of Appeals and Jennifer Granholm, the Democratic governor of Michigan.

"The point has been well made" that the White House is likely to focus on a female appointee, said Arturo Vargas, executive director of the Los Angeles-based National Association of Latino Elected and Appointed Officials. While Obama may have few female Hispanic federal judges to choose from, Vargas stressed that there are "hundreds of thousands" of Latina lawyers across the country, if the White House wants to broaden its net.

"If the president is serious about it, he can look beyond the bench," Vargas said. He cited Antonia Hernandez, the former president of the Mexican-American Legal Defense and Education Fund, who now heads the California Community Foundation in Los Angeles, as an example.

The conventional wisdom in Washington is that Sotomayor and Wardlaw are the "only options" if the White House is looking purely at accomplished Hispanic women lawyers who are well respected within the legal community, said Tom Goldstein, a partner at Akin Gump Strauss Hauer & Feld who co-heads the firm's Supreme Court practice.

"I do think the imperative to appoint a woman is stronger than the desire to name a Hispanic," he said.

Vargas' group and other Hispanic organizations with a presence in Washington, such as MALDEF and the Hispanic National Bar Association, are compiling a list of candidates they hope the White House will consult.

Yet to be made public, the list will include Sotomayor and Wardlaw, according to John Amaya, an attorney in MALDEF's Washington office. He declined to say who else was on the groups' radar.

Amaya said MALDEF had "an open line of communication" with the White House and that he and his colleagues were also speaking with the staff of several senior senators, including Sens. Dianne Feinstein, D-Calif., and Charles E. Schumer, D-N.Y., who both serve on the Senate Judiciary Committee.

Schumer has already said he would like a Hispanic nominee, naming Sotomayor as a potential pick. The Congressional Hispanic Caucus is also lobbying for a Hispanic nominee. Rep. Nydia Velazquez, D-N.Y., who chairs the caucus, has mentioned Sotomayor as her preferred candidate.

"Appointing our nation's first Hispanic justice would undoubtedly be welcomed by our community and bring greater diversity of thought, perspective, and experience to the nation's legal system," Velazquez wrote in a letter to Obama last week.

But other Democratic members of Congress were more interested in a justice who would tilt the court's ideological balance to the left, and they've been more vocal in calling for a woman than they have been for an Hispanic.

Feinstein indicated in a statement Wednesday that she was particularly keen on a pro-choice candidate who would "treat all people equally under the law and appreciate the effect that Supreme Court decisions have on people's daily lives."

"I would be delighted to have another woman on the panel," she added.

Feinstein declined to say whether she would favor Wardlaw, whose nominations to the 9th Circuit and U.S. district court won her support, or another Hispanic nominee.

Likewise, Sen. Barbara Boxer, California's other Democratic senator, was mum about any specific candidates she might have in mind.

But in a statement issued by her office, Boxer said she would prefer a woman.

"Having spoken with Justice Ruth Bader Ginsburg and former Justice Sandra Day O'Connor, I am convinced it is essential that we have another woman on the bench," Boxer said. "Women make up more than half of our population, but right now hold only one seat out of nine on the United States Supreme Court. This is out of balance."

Another California Democrat, Rep. Linda Sanchez, an Hispanic woman who represents Lakewood and other Southern California cities, said in a statement that she was focused on how the justice would approach the law rather than whether the nominee was a woman or Hispanic.

She added, however, that "it is pertinent to consider both gender and ethnic diversity."

The White House is expected to announce the nomination as early as next week.

Saturday, May 02, 2009

Posted 2:55 PM by Howard Bashman

Posted 2:50 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 04, 2009

FREE HAND FOR OBAMA IN JUSTICE PICK
Souter's Departure Lets Obama Shape Supreme Court

By Lawrence Hurley and Robert Iafolla
Daily Journal Staff Writers
WASHINGTON - Now that the opportunity to make an early U.S. Supreme Court appointment has fallen into President Barack Obama's lap, the big decision he faces in replacing Justice David H. Souter is whether to stick or twist.

Souter, who confirmed Friday that he plans to retire at the end of June, has been a reliable liberal vote on the court and could easily be replaced by someone who shares similar views.

But he is by no means an outspoken left-winger. Souter was nominated to the court in 1990 by Republican President George H. W. Bush.

With Democrats within one vote of a filibuster-proof majority in the Senate following the party switch of Sen. Arlen Specter of Pennsylvania, Obama could go for broke and appoint a full-blown liberal to the court for the first time since President Bill Clinton nominated Ruth Bader Ginsburg in 1993.

Such a move wouldn't dramatically alter the balance of the court, although it might tilt the court slightly to the left. It might also pave the way for Obama to reshape the court further should retirement announcements come from 89-year-old John Paul Stevens or 76-year-old Ginsburg, who was recently treated for cancer.

But with plenty of other pressing issues on Obama's plate, such as the slumping economy, two ongoing wars and a possible flu pandemic, the White House may seek a smooth confirmation of a solid moderate.

Another factor is that all of the interested parties want Souter's replacement to be confirmed in time to take the bench for the court's new term, which starts in October.

With most court-watchers expecting Obama to appoint a woman, the question now becomes which of the leading contenders represents a gamble and who would meet with less resistance from conservative activists.

Experts say Obama has broad leeway to choose among diverse option.

"The stars are aligned" for Obama, according to Michael O'Neill, former chief counsel to the Senate Judiciary Committee when Specter was chairman. He helped usher through the nominations of both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

Not only is the president "still in his honeymoon period" and riding high in opinion polls, but he also has a clear working majority in the Senate, O'Neill said.

"He is in a very good position to appoint the person he wants to sit on the court," he added.

By the time Obama's nominee faces a confirmation vote, he may even enjoy a potential filibuster-proof majority of 60 Democratic senators if the contested election is resolved in Minnesota, where comedian Al Franken's narrow victory is in dispute.

Obama does, however, have to be careful not to nominate someone Democrats from conservative states could have trouble supporting.

As for who he will pick, most expect a high-flying judge or legal scholar.

The president, however, could look beyond the judicial and academic community and perhaps choose someone with executive office experience such as former Arizona Gov. Janet Napolitano, who now heads the U.S. Department of Homeland Security, or even a member of Congress, such as Sen. Claire McCaskill, D-Mo., both of whom are lawyers.

But the three candidates most often mentioned by pundits, legal experts and lawyers who practice before the court are recently appointed Solicitor General Elena Kagan, 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor and Judge Diane Wood of the 7th Circuit.

All three, who were mentioned as possible replacements for Ginsburg when she was treated for pancreatic cancer in February, could be confirmed with some ease, experts say, although they would also face considerable heat from conservative activists.

In fact, various conservative groups were already dissecting the careers of potential nominees within hours of Souter's possible retirement being reported.

"The Republicans will go after whoever is named," said Nan Aron, president of liberal advocacy group Alliance For Justice.

But Specter's switch of party allegiances represents a "significant change," she said, because the senator will no longer feel the need to toe the Republican party line when it comes to voting on a nominee.

"It certainly emboldens the president to pick the candidate he wants," Aron added.

Senate Republicans have not yet decided who will replace Specter as the ranking member of the judiciary committee although many predicted the replacement would likely be more conservative than Specter and even more responsive to party leadership.

Nonetheless, several political analysts said that would likely have little impact on confirmation proceedings since the GOP has too little leverage.

As a point of comparison, President George W. Bush was able to place two very conservative nominees on the bench over Democratic objections, and analysts said Obama has more political capital at his disposal than Bush did in 2005.

Depending on how much attention Obama wants to spend on his first Supreme Court vacancy, he can afford to be bold, in terms not just of ideology but also personal background.

"Whether the nominee is moderately liberal or very liberal, they will probably fit comfortably in the Court's left block," said Lee Epstein, a professor at Northwestern University School of Law who has written extensively about the Supreme Court. "The more interesting question is that of diversity."

Diversity in this instance, Epstein continued, falls along multiple dimensions, from gender and race to professional experience and home region.

In addition to being overwhelmingly male and white, all the justices are former appeals court judges and most come from the Northeast.

Of those on the top of the early lists of contenders, the selection of Kagan, the former dean of Harvard Law School, would break from the decades-long tradition of tapping an experienced judge for the high court.

A solid liberal known for her support for gay and lesbian rights, Kagan is also regarded as a skilful negotiator and consensus builder. Despite her recent appointment as the Obama administration's advocate before the Supreme Court, she has yet to argue a case before the high court.

Kagan raised the ire of conservatives when she played a leading role in an attempt by some law schools to prevent the military from recruiting on campuses as a protest of the military's "don't ask, don't tell" policy on homosexuality in the armed forces. Her nomination as solicitor general didn't go as smoothly as expected, with Specter voting against confirmation because he claimed she hadn't answered his questions fully enough.

Some court-watchers, speculating that Obama may want to appoint a minority candidate who is also a woman, favor Sotomayor - a Hispanic woman.

Her credentials when it comes to the politics of confirmation are bolstered by President George H.W. Bush's appointment of her to the district court in the Southern District of New York before President Bill Clinton nominated her to the appeals court in 1997.

Conservatives claim she is more liberal than Democrats would like to admit, pointing to her role in a 2nd Circuit panel that ruled against white firefighters claiming the city of New Haven, Conn. had discriminated against them. In that case, the city invalidated the result of a civil service examination on the grounds that not enough minorities scored high enough to win promotion. The case is currently under review by the Supreme Court. Ricci v. DeStefano, 07-1428.

Curt Levey, of conservative group Committee for Justice, said Friday that Sotomayor was a judge who "clearly committed to judicial activism."

The last of the three names most frequently mentioned is Wood, who, like Obama, taught at the University of Chicago Law School, and was nominated by Clinton to the 7th Circuit in 1995.

The 59-year-old Wood, who clerked for Justice Harry Blackmun and had a leadership position in the U.S. Justice Department's antitrust division during the early years of the Clinton presidency, is a liberal voice on the fairly conservative 7th Circuit.

She is perhaps best known for her role in reviving a long-running case in which abortion rights activists sought to apply the federal civil racketeering statute to prevent anti-abortion activists from organizing to obstruct access to abortion clinics.

Wood wrote the majority opinion in which the court held that the abortion rights group could seek injunctive relief from federal courts.

The Supreme Court reversed that decision in 2003. NOW v. Scheidler, 537 U.S. 393, 402.

Although highly thought of within liberal legal circles, some experts point to her advancing age as a possible disqualifying factor.

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