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Next Wave of SCOTUS Justices? Plus, a Red-Light Cert. Petition

By William Peacock, Esq. | Last updated on

Our least favorite thing in the world right now is the obsession with Justice Ruth Bader Ginsburg's retirement. Seriously, pretty much every week, there's an article about how she should retire in time for President Obama to replace her, followed by her saying, "Nah," and dozens of other writers chiming in with "leave the lady alone."

But, the fact is, she's 81, Justice Antonin Scalia is 78, Justice Anthony Kennedy is 77, and Justice Stephen Breyer is 75. They're all probably headed for the exit in the near-term. This begs the question: Who are their likely replacements?

Speaking of soothsaying, there are a couple of interesting certiorari petitions that may, or may not, make the Court's docket -- one involving sex offender laws, and the other presenting the obvious Confrontation Clause issue with red-light cameras.

Toobin's Farm Team

While Republicans may be optimistically counting down until noon Eastern Time on January 20, 2017 (when the next president will be sworn in), at least for the next couple years, any nominations to fill potential High Court vacancies will come from President Barack Obama. And, of course, there's always the possibility that a Democrat could be elected in 2016.

With that in mind, legal analyst Jeffrey Toobin's list in The New Yorker focuses mostly on the near-term, Democrat-likely candidates, such as:

    • Sri Srinivasan, 47, from the D.C. Circuit;
    • Paul Watford, 46, from the Ninth Circuit;
    • David Barron, 46, a nominee for the First Circuit;
    • Jane Kelly, 49, from the Eighth Circuit; and
    • Patricia Ann Millet, 50, from the D.C. Circuit.

Toobin's article reads like a minor league baseball scouting report (he did use the term "farm team," after all) and lists the qualifications and reasons for a possible nomination. Millet and Srinivasan are interesting choices, as both were recently confirmed to the D.C. Circuit (often labeled as the SCOTUS-feeder court), with Srinivasan having experience at the Solicitor General's office and having been confirmed 97-0.

Jane Kelley is also an interesting pick. When was the last time a career public defender made the high court? (She's also uncontroversial, having been confirmed 96-0.)

Red-Light Special

This is probably a long shot for the docket, but LA Weekly talks about an interesting petition out of California.

We're all familiar with the controversial red-light cameras that popped up seemingly everywhere, and have been debated endlessly for their accuracy and Confrontation Clause issues. In this case, Howard Herships appealed his tickets all the way to the California Supreme Court, which declined to hear the case, opening the door for a SCOTUS petition. He asks:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non-testifying computer technician through the in-court testimony of a police officer who did not perform or observe the printout of the digital photos and videos used as a testimony introduced as the sole basis for the criminal prosecution?

We've seen a number of interesting Confrontation Clause cases come out of the Supreme Court in the past few years, but we still think this is unlikely. For one, there's a parallel case that was actually accepted by the California Supremes, which is set for oral argument in a few weeks. If anything, the U.S. Supreme Court would probably wait for that one to shake out, and request cert., before taking on the issue.

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