November 15, 2016
Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
As explained in this post eight months ago, I was deeply disappointed that Prez Obama "decided to nominate to the Supreme Court to replace Justice Antonin Scalia, an old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit, none other than Chief DC Circuit Judge Merrick Garland, another old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit." As this sentence was meant to highlight, my disappointment in the selection by Prez Obama was focused on six particular attributes of Judge Garland (and Justice Scalia), and here in rank order is what I disliked from most bothersome to least:
1. Old: Garland at age 63 was the oldest person nominated to be an associate Justice in over 100 years other than Prez Nixon's nomination of Lewis Powell at age 64. With all due respect to people who are eager to work well after retirement age, I generally think it better for most jurists after a two decades on the bench to be thinking seriously about retirement, rather than about starting a new job.
2. Harvard Law School: With all due respect to my alma mater and its rivals Yale and Stanford, only two of the previous 16 nominees to the Supreme Court did not attend at some point HLS or YLS or SLS: John Paul Stevens (Northwestern) and Harriet Miers (SMU). Though I am proudly a product of elite coastal educational institutions, my 20 years teaching at Ohio State (and teaching as a visitor at Colorado and Fordham) has reinforced and deepened my strong belief that a whole lot of elite lawyers and supremely qualified jurists have degrees from law schools other than Harvard, Yale and Stanford.
3. DC Circuit Judge: Even after Justice Scalia's passing, three of the current Justices had previously served on the DC Circuit (Chief Justice Roberts and Justices Ginsburg and Thomas). As a close follower of criminal justice jurisprudence (which makes up almost 50% of the SCOTUS docket), there are many reasons I think judicial experience as a DC Circuit Judge is especially bad: (a) the DC Circuit sees very few criminal cases and zero state habeas cases, (b) the DC Circuit is "inside the Beltway" and so judging is always going to be distinctly "politicized" on that court, and (c) the very few criminal cases DC Circuit judges do see are highly unrepresentative of criminal cases throughout the nation. Among the reasons I have liked the last three appointments to SCOTUS (Justices Alito, Sotomayor and Kagan) is because none of them came up from the DC Circuit; also Justice Sotomayor had been a federal district judge before becoming a circuit judge, and Justice Kagan had never been a judge. I sincerely believe that the Supreme Court's criminal justice jurisprudence has improved considerably in recent years thanks to the collective work of Justices Alito, Sotomayor and Kagan (and I say this as one of the few fans of the Blakely/Booker cases which predate their arrival).
4. Formerly worked for USDOJ: Regular readers are likely aware of my complaints about the persistent appointment of what I might call "big government" prosecutors/insiders, i.e., people who spent at least some of their formative professional years advocating on behalf of (ever-exanding) government powers. Here are snippets from the official SCOTUS bios of the last five confirmed SCOTUS appointments to the Supreme Court: "Special Assistant to the Assistant U.S. Attorney General [and] Assistant Special Prosecutor" (Breyer); "Special Assistant to the Attorney General" (CJ Roberts); "Deputy Assistant Attorney General, U.S. Department of Justice [and] U.S. Attorney, District of New Jersey" (Alito); "Assistant District Attorney in the New York County District Attorney's Office" (Sotomayor); "Solicitor General of the United States" (Kagan). Those eager for courts to check and limit the powers of governments (especially the federal government) need not look past these professional realities to understand why it so often seems that "the little person" asserting rights against some big government rarely prevails before a group of people who, in many, many, many ways, owe their professional success to the increasing size of government with fewer and fewer constitutional restraints.
5. Male: According to this Wikipedia entry, as of 2016, there have been 161 formal nominations to SCOTUS, and only five have been women (O'Connor, Ginsburg, Meirs, Sotomayor, Kagan). For those good at math, you should know that this is just over 3% of all appointments (and, disgracefully in my view, a bunch of men bullied Meirs into withdrawing before she even got a hearing and she was replaced by Justice Alito). As of the 2010 census, women comprised 51% of the US population, and I am so proud that Prez Obama increased the historical number of women appointed to SCOTUS from around 1.8% to 3.1%. But, especially as the father of two teenage daughters, I am not quite ready to say "you have come a long way, baby."
6. White: Of 161 formal SCOTUS nominees, only three have been people of color (T. Marshall, Thomas, Sotomayor). Given that 72% of the nation identified white as of the 2010 census, I suppose I should just be grateful Prez Obama nominated one person of color to SCOTUS. But, beyond the fact that now close to 25% of the nation identifies black or Latino, there are lots of other large diverse minority groups in the US, as this official US Census article notes. For example, as of 2010, Asians were now 5% of the US population, and "grew faster than any other major race group between 2000 and 2010." In addition, I think a powerful argument might be made, especially given the exclusive federal jurisdiction in Native lands and on many US Islands, that SCOTUS ought to have someone from the 2.5% of the US population that consider themselves at least in part "American Indian and Alaska Native (5.2 million) and Native Hawaiian and Other Pacific Islander (1.2 million)."
So, based on this discussion and my prior criticism of Prez Obama's nomination of Judge Garland, I think my ideal pick to replace Justice Scalia would be (1) young (ideally under 50), (2) an alum of some school other than HLS, YLS or SLS, (3) not a DC Circuit Judge, (4) not a former prosecutor or DOJ employee, (5) a woman, and (6) not white. For the record, in case anyone cares or thinks my own biases color my judgment, I satisfy only three of these six criteria — as does, quite interestingly, Prez Obama and Prez-Elect Donald Trump and defeated candidate Hillary Clinton (though none us satisfy the same three of these six criteria).
I have not yet had a chance to drill down deeply into all 21 of the lawyers appearing on Prez-Elect Donald Trump's SCOTUS not-so-short list to see who may satisfy the most of my ideal criteria, but I was inspired to do this post by some recent articles from The National Law Journal and the New York Times discussing the diversity on some attributes of some of the persons on the Trump SCOTUS list. I do not believe there is a woman of color on the Trump list, so I think it may be impossible for any of the 21 to hit all of my key six diversity attributes. But it is certainly possible (and I am hopeful) that there are more than a few candidates on the list who satisfy five or at least four of these attributes. And in the wake of Prez -Elect Trump's past criticism of a federal judge based on his ethnicity, I suspect I am not the only one now culling his lists on various distinct diversity grounds.
And, to preempt any complaints that I am worrying way too much about "identity politics," as an academic in a University community that talks a lot about diversity attributes, I could readily devise a long list of other attributes that could also be important to consider if we aspire to have SCOTUS become a more "representative" institution: e.g., personal or professional history (a SCOTUS nominee could be a non-lawyer); religion (e.g., no Mormons or avowed atheists have even been a Justice); military service (who was last veteran on SCOTUS?); socio-economic status (who was last first-generation college SCOTUS nominee?), marital/parenting history (the last two nominees were single), disability, sexual orientation, citizenship or criminal history and on and on.
November 15, 2016 at 08:00 AM | Permalink
Nice post, professor. While I am not sure we share the same political agenda, other than an interest in sentencing reform and a more intelligent criminal justice system, I think these are extremely valid points.
Posted by: Fat Bastard | Nov 15, 2016 8:24:50 AM
Coming from one Fat Bastard to another, this means a lot to me!
Posted by: Doug B. | Nov 15, 2016 9:01:21 AM
Yes, it was disappointing someone else wasn't blocked and not able to do let's say her job for around a year. Surely, this would have convinced the Trump voters. I snark.
Anyway. Old. The value here is that it puts in a de facto term limit. I think twenty years on the Supreme Court is enough time. 65 is not "retirement age" for a federal judge. If you choice was actually confirmed, she could have been there for forty years.
I am fine with critiques 2/3 (there are reasons I liked the choice, but any choice has compromises). Since I live near Fordham (just went to the Botanical Gardens), can't complain about a shout-out really. As to 4, again fine, but that alone isn't an issue for me if balanced with other things.
Obama picked two women, one Hispanic. It's fine if one of his three picks was male. Starting fresh, unless he renominates Garland, Trump could pick a woman. Likewise, he picked two picks not white males. It's okay if one of his three picks -- for various reasonable reasons -- was a white male. Anyway, again, Trump can do differently there, to balance his winning coalition. Just as in a way Obama did with that pick.
Anyway, my ideal pick is a libertarian with defense and/or other novel experience (politics, state government, etc.) from outside of the coastal areas. I don't think someone under 50 who can be on the Supreme Court for 40 years is ideal.
Posted by: Joe | Nov 15, 2016 9:55:07 AM
It doesn't matter. Trump is a lame duck president with only four years left of his term. Democrats must filibuster any Trump nominee, to hold that seat open so that the people may have a voice in who fills it at the next election.
Posted by: Def. Atty. | Nov 15, 2016 11:51:55 AM
Given the politics of the last eight months the odds that the senate will filibuster anyone is zero. Having said that, I do think the narrow majority in the Senate does mean that the few moderate Republicans left can wield a tremendous amount of power. I am curious to see if there might be a return to the "Gang of Eight" or some such alliance of moderate republicans and moderate democrats that will begin to dictate to the Senate what to do in controversial matters like SCOTUS picks and health care.
Posted by: Daniel | Nov 15, 2016 2:49:54 PM
"Trump is a lame duck president with only four years left of his term."
And, I don't think either side would have the means, realistically, to filibuster or block for FOUR years any nomination. As to moderate Republicans, don't think Trump would pick someone so extreme that any Republican would block him or her really. More likely that he might pick some Harriet Miers type that the Republican caucus itself rejects.
A few Republicans can block a Cabinet pick or two though. Someone like John Bolton is being rejected by Rand Paul & it's conceivable a couple more Republicans along with a united Democratic caucus would reject someone like that.
Posted by: Joe | Nov 15, 2016 3:12:35 PM
It would also be nice to have more than one person on the Supreme Court who has ever presided over a trial by jury, or, dare I dream it, someone who has served as a criminal defense attorney.
Posted by: Kirsten Tynan | Nov 15, 2016 8:44:39 PM
Kirsten Tynan, I would appreciate that, but I don't think it fits Trump's "Law and Order" rhetoric. I'd want a Judge who respects precedent at a minimum. The fear is someone radical. At least a Court of Appeals record could reassure somewhat there. I'd want someone who is qualified, but I agree there are plenty of Judges not from Harvard or Yale who qualify (while I don't think I'll agree with him entirely either, I really hope Sri Srinivassan eventually gets on the Court). Diversity is nice to have, but there are other requirements as well.
Posted by: Erik M | Nov 16, 2016 11:23:36 AM
I appreciate Doug's thoughtful discussion about attributes for the Supreme Court. I think that it would be helpful to have Justices who were district court judges, not only appellate judges, and who have had broader experiences and geographical background. Also, do the Justices really understand how much the criminal justice system involves plea bargains and 2255 motions?
Posted by: Elaine Mittleman | Nov 16, 2016 12:31:56 PM
Kirsten—Federico Moreno was a federal public defender. Several others on the list with experience as a trial judge.
Posted by: Bryan | Nov 16, 2016 5:50:26 PM
Trial judges are generally more informed on the working of CJ system. Right now Sotomayor is the only former trial judge and she gets it. That is why I am really rooting for Amul Thapar.
Posted by: Doug B. | Nov 16, 2016 8:09:41 PM
I think Trump should surprise everyone and nominate Miguel Estrada. He gets a solid conservative with impeccable credentials and he makes nice to an entire demographic that he insulted throughout the campaign.
Posted by: I Care | Nov 17, 2016 10:30:22 AM
Sure. Estrada is the favorite Republican martyr and is friendly with Kagan (and perhaps others). Need some more left/right friendships. As to Sotomayor, thanks Obama!
Posted by: Joe | Nov 17, 2016 1:31:16 PM
Professor Berman: Ted Cruz for attorney general? Do his views truly comport with yours?
KEOSAUQUA, IOWA — Republican presidential candidate Ted Cruz ended a seven-stop tour of Iowa on Tuesday with extended comments against marriage equality and transgender-inclusive policies, which he said represented a “time of crisis” in America.
His remarks came in response to a question from Keosauqua resident Randy DeLong, who expressed concern with the “moral decay in this country.”
“It was a sad day when I saw the Capitol building all lit up in the rainbow colors,” DeLong said, referring back to June, when the White House used a colorful light display to celebrate the Supreme Court’s decision legalizing same-sex marriage across the country. “How will your faith have a positive effect? How will you light that faith to make changes?”
As the audience in rural southeast Iowa applauded the question, Cruz nodded. “You’re absolutely right,” he said. “Our country is in a time of crisis. We’re losing who we are.”
Cruz assured DeLong that his presidency would not endorse the Supreme Court’s ruling that same-sex marriage is a Constitutional right, calling it “fundamentally illegitimate, lawless, and unconstitutional.” Previously, Cruz has said individual states should ignore the Supreme Court’s ruling making marriage equality the law of the land. In leaked audio from an event in December, however, Cruz indicated that abolishing same-sex marriage would not be a priority if he was elected president.
Priority or not, Cruz on Tuesday mounted a spirited defense of his views on marriage — that it should only occur between a man and a woman. The American people, he said, are on his side.
“The American people all overwhelming disagree with [same-sex marriage],” he said, arguing that polls that show majority support for marriage equality — like this one from the Pew Research Center and this one from Gallup — are “skewed.”
“You can write a poll in a way that will get the results you want if they’re skewed,” Cruz said. “But when people of states have actually gone to the ballot box, they’ve voted to protect traditonal marriage.” Before the Supreme Court’s ruling, more than half of all states in the America had banned same-sex marriage, either through ballot initiatives or legislation.
Cruz also lambasted the Obama administration for deciding to light the White House in rainbow colors following the Supreme Court’s decision.
“What we’re doing doesn’t make any sense,” he said. “What does it say that that day, they lit up the White House in rainbow colors, and yet it took nearly a week to recognize that our servicemen were murdered by jihadists in Chattanooga by lowering the flag at half staff? How messed up are those values?” Cruz was referring to the five days it took the Obama administration to lower the White House’s flag when a Muslim man opened fire on two military installations in Chattanooga, Tennessee.
In the months leading up to the impending Iowa caucuses, prominent anti-gay figures have rallied around Cruz. Bob Vander Plaats, president of the Iowa organization The FAMiLY Leader, announced his support for Cruz last month. Among other things, Plaats and his group are known for circulating a pledge in 2011 asking presidential candidates to call homosexuality a choice, and demand pornography be banned. The National Organization for Marriage has also given Cruz its endorsement.
After speaking about same-sex marriage on Tuesday, Cruz also took the opportunity to blast the Department of Education for trying to enforce transgender-inclusive policies. Cruz often employs this rhetoric at campaign stops, claiming that letting transgender students use the bathroom of the gender they identify with amounts to letting “little boys shower with little girls.”
DeLong, for his part, was pleased with Cruz’s answers, telling ThinkProgress after the event that he asked the question because he was “concerned about the moral welfare of the country.”
“I’ve got kids,” he said. “I’ve got this little heart here, ticking. I’m conscientious.”
Posted by: anon2 | Nov 17, 2016 3:01:04 PM
It doesn't matter. it is not cleare that what will happen after peresident trump start his goverment period.
Posted by: درب ضد سرقت | Nov 21, 2016 5:23:40 AM