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February 26, 2008

Insider myopia and the diverse benefits of a short bench

Jeffrey Rosen has this remarkable — and depressingly telling — article online at The New Republic, titled "Short Bench: Why the Dems lack Supreme Court nominees."  Here is a taste:

As Democrats dream about the possibility of retaking the White House in 2008, they are also fantasizing about their first Supreme Court appointments since 1994. But the bench of potential candidates is surprisingly thin....

[M]ost of the sitting Democratic appellate judges are too old to be considered plausible Supreme Court candidates.... Democrats have a strong incentive to pick younger justices this time around....

The next Democratic president will also feel strong pressure to appoint a woman or a Latino justice -- or both. Here, the pool of potential candidates is also shallow....

[T]he next president could try to appoint [a BigLaw lawyer like Beth S. Brinkmann] directly from private practice. (The last lawyer to be appointed directly from practice to the Court was Lewis Powell in 1971.) But a choice like this might be controversial among Democratic activists in the John Edwards wing of the party, who feel the current Democratic justices are already too sympathetic to business....

Another possibility would be for the next Democrat to appoint a legal academic [but] professors at the moment don't have a great reputation as potential justices....

That leaves only one other category of potential Democratic justices: current and former politicians. There's much to be said for putting a politician on the Court: A majority of justices on the Court that decided Brown v. Board of Education had a background in elected politics, as opposed to no members of the Roberts Court. And, over the course of history, former politicians have made not only the best chief justices -- think of John Marshall, Charles Evans Hughes, and Earl Warren -- but also some of the most effective associate justices. (Hugo Black is the model here.) Politicians, at least the smart ones, tend to be more pragmatic than ideological and, for this reason, have been well positioned on the Court to build majorities and transform the Court in their own image.

The current justices, though, are a group of technically accomplished lawyers, and, in order to be their intellectual match, any Democratic justice appointed from politics would have to be book smart as well as a ruthlessly determined politician. All of which means that the next Democratic president may have only one obvious candidate for the first Supreme Court vacancy: Once Obama has beaten Clinton, or vice versa, and gone on to the White House, the winner can appoint the loser to the Supreme Court.

Both the tone and content of this piece is notable for its inside-the-Beltway attitude and perspective.  Apparently, in Rosen's DC-oriented mind, the only viable Democratic SCOTUS nominees are federal appellate judges, big-law lawyers, elite law professors, and "book smart" and "ruthlessly determined" politicians.  Putting aside the simple fact that a Democratic president might have a filibuster-proof Senate to help his or her cause, Rosen's short list reveals a remarkable lack of historical perspective.

Justice Sandra Day O'Connor, of course, should be grateful President Reagan had a less myopic view of SCOTUS potential, since she was nominated from an intermediate Arizona state court. Similarly, Justices William Brennan and Benjamin Cardozo and Oliver Wendell Holmes came from state appellate court systems to the US Supreme Court.  And Justices William Rehnquist and Thurgood Marshall and Arthur Goldberg and Byron White and Harlan Fiske Stone were all serving in the federal executive branch when nominated (though Marshall had previously spent a few years on the Second Circuit).

So, to help out anyone starting to sensibly write up a truly diverse Democratic short list, let me think a bit outside Rosen's DC-oriented box.  Here are just a few different kinds of short-list possibilities from spending a little time thinking dynamically about different types of potential Justices (and not (yet) obsessing over possible judicial attitudes):

Any other suggestions, dear readers?

February 26, 2008 at 01:43 PM | Permalink


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Posted by: | Feb 26, 2008 2:04:08 PM

The SCOTUSblog short list is mostly federal judges with a few elite professors and politician thrown in, though I do see a handful of state judges, too. But here I want to give some extra points for originality.

Posted by: Doug B. | Feb 26, 2008 2:15:24 PM

Politicians = pragmatism & compromise.
Not the best qualtities for a federal
bench that should have a limited role
in public and social disputes.

Posted by: Frankie | Feb 26, 2008 2:24:00 PM

Of course. I forget where I read this... maybe it was a Lithwick column, maybe it was J.C. Greenberg's book, or maybe it was a SCOTUSblog post, but the idea was that the nature of federal law and litigation has changed over the past few decades, and that many of the Supreme Court's cases deal with technical issues of statutory interpretation.

As such, the qualifications we look for in Supreme Court justices are more likely to be found in inside-the-beltway types, appellate judges and government attorneys now than they were a few decades ago.

AEDPA, ERISA, the PSLRA make up more of the court's docket than the 4th amendment and the culture wars, and it doesn't upset me much when someone is uninterested in looking too far beyond the usual suspects.

Also, the Rosen piece is pop culture fluff. He likes to say provocative things like "the next Democratic president may have only one obvious candidate for the first Supreme Court vacancy: ... the winner can appoint the loser to the Supreme Court. " It's ridiculous, but since he's a law professor, people think that whatever he says must be rational and thoughtful.

Posted by: | Feb 26, 2008 2:31:29 PM

As for applying AEDPA, a state court judge would be a better choice than a federal court of appeals judge. The whole point of the principal reform was to rein in lower federal courts and give more respect to state courts.

My favorite Democrat-appointee on a state high court is Carlos Moreno of California. He has the perspective of having been on both sides of the state-federal fence, particularly appropriate for the one court with appellate jurisdiction over both state and federal courts. However, at 60 he wouldn't pass Rosen's age screen.

Posted by: Kent Scheidegger | Feb 26, 2008 4:20:55 PM

Feb 26, 2008 2:31:29 PM: The Court's docket might be a result of the Justice's background. In other words, if there were a more diverse Court (diverse, in terms of professional background), then we just may see a different variety of cases having cert granted (i.e., to use your examples, more "4th amendment and the culture wars" type cases.)

Posted by: DEJ | Feb 26, 2008 5:02:15 PM

There are experienced federal district court judges who could be candidates for a Supreme Court slot, such as the Honorable Martha Vazquez, Chief Judge for the District of New Mexico (a Hispanic woman). Also, in considering the merits of diversity on the SCOTUS, greater diversity in law school backgrounds might be beneficial. I haven't looked at their resumes lately, but I believe the current members of the Court are almost completely from Ivy League schools.

Posted by: defemse attorney | Feb 26, 2008 5:38:25 PM

The most obvious choice would be John Edwards. Roberts and Alito would stroke out on the spot. And the utter deliciousness of Anita Hill sitting opposite Clarence Thomas?

Posted by: Jameson | Feb 26, 2008 5:55:29 PM

The most obvious choice would be John Edwards

God help us all.

It would make cert petitions much easier if he had 4 like-minded compatriots.


Whether I should have lost


I am an individual. The defendant is a corporation. I sued the defendant. I either (a) won at trial and lost on appeal, (b) lost at trial and on appeal, or (c) won both at trial and on appeal, but would like more money.


For the reasons stated above, the petition should be granted.

In the meantime, be prepared for 8-1 opinions that look like this.

EDWARDS, J., dissenting:

There are Two Americas. In one America, there is the plaintiff, who thinks that doctors committed malpractice.

In the other America, there are the defendants, who are rich, and who are concerned with technicalities such as the fact that the plaintiff has never had or sought medical treatment, or the fact that the defendants had never seen or heard of the plaintiff before the instant litigation. While these things may be true, I fear that today's ruling broadens the divide between the Two Americas. Surely the defendants can afford to give the plaintiff a million dollars.

As the son of a mill worker, I dissent.

Posted by: | Feb 26, 2008 6:37:16 PM

Well, let's just hope that Obama and Clinton are back to voting on SCOTUS picks rather than making them.

Posted by: federalist | Feb 26, 2008 7:58:53 PM

6:37 -- I laughed so hard I spit wine at my screen. Thanks for the laugh


There is a deep bench on the Dem side, just not in the lower federal courts. My first choice (after you of course) for the bench would be Akhil Amar Reed (Yale), Janet Napolitano (Gov -AZ), Jennifer Mulhern Granholm (Gov-Mich), John OR Elizabeth Edwards,Maria Echaveste (Boalt), Robert Reich, Cass Sunstein (Chicago), Ian F. Haney Lopez (Boalt), etc. Of course considering the lifetime appointment that is a SCOTUS appointment, I am sure there are some Yale, Harvard, or Boalt, 2Ls (or perhaps even the fetus of some well connected lawyers)who should be examined for the post.

Posted by: karl | Feb 26, 2008 11:19:04 PM

Too bad we did not get a fair shake for the man I consider to be the absolute, most worthy candidate of all: Kenneth L. Ryskamp (Senior status now, SD.Fla). He is excellent and should have had his chance long ago. And I do not mean a 1992 appellate level attempt, for those who would jest this very honorable judge. Shame on you if you make that attempt. That man was using BOOKER techniques as early as the day after KOON v. US. An absolute winner for our justice system. I stood there and watched him work. What a sight to see! Visionary. He had an almost holy presence that commanded respect. He had (and has) the vocal tones of a true commanding jurist. And I quote his response to a probation officer's question (What guideline level are you using Judge?). Ryskamp response: "I'm not using the guidelines. But if you like, I could certainly pick one." (1996). It will be a sad, sad day when we see Ryskamp step down from the bench. We are not immortal, but the reported decisions make us live on through years of debate, affirmance, vacatur, etc. Thank you Judge Ryskamp for teaching me respect for the law.

Posted by: Ronald Humphreys | Feb 27, 2008 12:01:10 AM

What about Denny Chin?

Posted by: | Feb 27, 2008 9:51:08 AM

There excellent federal district court judges that could fit the bill:
Lynn Adelman, Nancy Gertner, Robert Pratt. I've been doing a lot of sentencing guideline work lately and these guys have written a great deal on that and other subjects. I like them, anyway (my litmus test).

Posted by: Erika Cunliffe | Feb 27, 2008 11:41:33 AM

How about Frank Easterbrook? That would prove Obama is a uniting force.

Posted by: | Feb 27, 2008 3:30:00 PM

Yeah, I have a suggestion. Vote for McCain.

Posted by: Dan | Feb 27, 2008 9:59:45 PM


Oh, that's just what we need: an ethically-challenged, mediocre-but-ambitious party hack appointed to a lifetime SCOTUS appointment. Don't even get me started on that MALDEF dude. Damn, judging from the names you're throwing out, you must be really itching to start a civil war.

Please tell me what kind of dope you're smoking, because it must be some gooooooooooood s***.

Posted by: MarkJ | Feb 27, 2008 10:14:33 PM

Richard Posner
Richard Epstein

Posted by: ManekiNeko | Feb 27, 2008 10:26:50 PM

Yes, it must be very hard to find a Supreme Court nominee. William van Alystyne, Akhil Amar, Sanford Levinson, Richard Posner, or Larry Tribe wouldn't do, for some reason. Or, if one were to consider the civil libertarian streak of Democratic thought (which they wouldn't, since the party in power always looks to its adherents who favor perpetuating that power, the foresight to reflect that its opponents will eventually come to power being quite beyond it), Randy Barnett and quite a few others. Perhaps that's the real problem with all of the above.

Gad, I'd love to see any of them in confirmation hearings, politely demonstrating that they know more about law than the entire of Judiciary Committee put together. Of course if that's the criterion, I could list most of the bench of the District of Arizona, southern division. And at least one JP. I'd be quite skeptical of politicians. Yes, they may be good at compromise and negotiation. But the main job skills required are winning elections and, these days, fundraising, i.e., pandering to people with money. I may be generally conservative, but I see neither of those as virtues in a Justice.

DTH, attorney, private practice, civil.

Posted by: David Hardy | Feb 27, 2008 10:52:25 PM

TeddyK (Oregon Gov) and TeddyK (Mass Senator)
How about Bork?
Jimmy Carter?
Madonna or Jacko?
Bill Clinton?

Posted by: Harry | Feb 27, 2008 10:54:51 PM

Sandra Day O'Connor was more famously an Arizona state senator and politician than an intermediate appellate court judge before Reagan nominated her. And she voted that way on the Court too. (In my view, that's not a feature, that's a bug, but I can understand how a Democratic president might have a different view.)

Also: There's a huge lack of civil trial law experience on the current SCOTUS. The fix for that isn't necessarily to take a lawyer directly from private practice, but to take a young but experienced federal district (not circuit) judge. There are comparatively more of those to choose from among the Clinton nominee pool.

Posted by: Beldar | Feb 28, 2008 12:27:18 AM

When you've got a short bench, sometimes you have to dip into the triple A talent: Doug Berman for SCOTUS! ;)

Posted by: Gritsforbreakfast | Feb 28, 2008 7:18:04 AM

Leroy Rountree Hassell, Sr. the the first African American Chief Justice of the Supreme Court of Virginia. He is an excellent lawyer and jurist -- indeed, his colleagues on the SCV were the ones who elected him Chief. He is a Democrat, but a moderate. What is against him: he dissented from the Davenport v. Little-Bowser decision (compelling the issuance of a birth certificate with two persons of the same gender listed as parents). (See also the Arlington Co. v. White case, where he would have invalidated Arlington County's expansion of health care benefits to domestic partners as a disguised attempt to legitimize same-sex unions.)

Also, what about Stephen L. Carter, of Yale?

Posted by: William Sulik | Feb 28, 2008 7:56:01 AM

With all due respect--I'm just a 3L so what do I know?--I have to take issue with some of your suggestions. (Preface: I know that I know nearly nothing about potentially viable picks.)

Preface aside, I have to ask what you're thinking when you submit Deval Patrick or Lisa Brown for consideration. Patrick? Really?! That's someone we should give a lifetime appointment to? That's someone who will humbly say what the law is, not what it should be? And Brown? ACS advocates the "living Constitution" nonsense, hook, line, and sinker. They eagerly cite NARAL when speaking of women's rights, yet they say they are nonpartisan...hmm...They speak of LGBTQ issues in the context of human rights, fundamental, no doubt.

Incidentally, I'm not against a living Constitution, if that means that the Constitution retains vibrancy and adaptability to changing circumstances through the amendment process. But it strains credulity to accept that the Founders intended the Constitution to be amorphous, with penumbral emanations. Again, I'm just a 3L, so what do I know?

Posted by: Daniel Briggs | Feb 28, 2008 9:22:13 AM

Mr. Briggs,

I'm no fan of the ACS or the "living constitution," but if we're going to talk about who a Democratic president might nominate to the Supreme Court, I think we'd have to accept the strong likelihood that the nominees aren't likely to come from the Federalist Society.

The lawyers with the intelligence to serve on the Supreme Court and the politics to get the attention of a Democratic president are likely to support the "living constitution," likely to view Roe v. Wade and Lawrence v. Texas as correctly decided, likely to be in favor of further expanding the scope of the Eighth Amendment, etc. Whatever you happen to think of Deval Patrick, he's intelligent, accomplished, liberal, and not white. Those are probably the 4 main qualifications a Democratic president would look for.

If you're a FedSoc person or a rule of law person or a social conservative or whatever, the best you could probably hope from a Democratic president is a justice more in the mold of Breyer than Warren. I doubt that Obama or Clinton cares much about what the Founders intended.

Posted by: anonymous | Feb 28, 2008 11:20:07 AM

Anon, points well made and points taken. I definitely don't expect a FedSoc darling to be nominated by Obama or Hillary and your healthy dose of realism is well received, especially by a naive idealist like me. "Intelligent, accomplished, liberal, and not white." Unfortunately, this is a good summary of likely criterion considered most important by a Democratic president.

I'm a member of FedSoc but I wouldn't say I'm a FedSoc person on all the issues; with such a broad platform, who could be? I definitely advocate a humble judiciary, "next to nothing," as Hamilton said in quoting Montesquieu. Nowadays, such a notion has been rendered moot.

When all is said and done, the most I can hope for is that a Democratic nominee "turns right" after getting on the bench. If Blackmun and Souter--appointed by Nixon and Bush the elder, respectively--can turn left, why can't a justice turn right?

The naiveté of youth? :o)

Posted by: Daniel Briggs | Feb 28, 2008 11:59:37 AM

Sorry, Gertner is the worst sort of idealogical moonbat; her decisions torture the intellect worse than any waterboarding CIA operatives!

Posted by: Brutus | Feb 28, 2008 12:53:35 PM

I highly recommend Carmen Garza, a federal Magistrate in Las Cruces. Worked with her and she is the real deal.

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