Bloodless Coup

Tonight's Hypothetical - What Kind of SCOTUS Nominee Would a Democrat Appoint?

Well I imagine a lot of people will be traveling over the weekend and not reading the blog. But I'm guessing that among our regular readers at least of couple of you who have (or are working on) law degrees and have an interest in national politics will check in on it, so I bring up the following question.

Say a Democrat is elected president in 2008, and say that there have been no changes in the make-up of the Supreme Court between now and then (that might very well not be the case, but for the sake of argument ...). When President Democrat is sworn on there will be 5 justices who are at least 70 years old (Stevens will be 88, Ginsburg 75, Kennedy and Scalia 72 and Breyer 70). It would seem highly likely that President Democrat would get to name at least one or two judges to the Supreme Court. My question for you is this. What kind of people would President Democrat appoint? And I mean, from what walk of life? This comes up because for well over 30 years every new member of the Supreme Court except for Justice O'Connor has been promoted from a US Circuit Court. However in 2009, that will be an exceedingly thin pool for a Democratic president to choose from. Unless there's a plausible nominee on the 9th Circuit (I don't know a great deal about some of the Clinton appointees on that Circuit) I can think of only 3 Circuit judges (Sotomayor and male judicial hottie Katzmann of the 2nd Circuit and Garland of the DC Circuit) who will be both young enough to be considered and will have the type of legal reputation you would think a Supreme Court nominee will be expected to have. Judge Sotomayor would seem to be an exceedingly likely pick for promotion. But beyond that handful of judges, well, that's a very small pool from which to choose. So if President Democrat was likely to look beyond it, what sort of nominee (and hey, name specific names if you like) do you think they would be likely to choose? A law professor? A state court judge? Someone in private practice? What are your thoughts?

For what it's worth, my guess on this is that the top legal academics will get a long hard look (and wouldn't it be fun if a blogger was consider? someone like a Balkin or a Lessig? though I suppose a Sullivan, Koh or Amar may be more likely), but given that these will be relatively unchartered waters, well, that's just a guess.