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May 15, 2009

The latest SCOTUS nominee news and seeking some predictions (or dreams)

According to this AP article, the "White House says President Barack Obama has not started interviewing candidates for the upcoming Supreme Court vacancy."  I had been thinking that President Obama was likely to name a nominee within the next few days, but perhaps this latest news suggest we have a lot longer to wait.

While we wait, I am eager to hear from readers about their latest predictions (or dream candidates).  Over the last few weeks there has been a lot of chatter about the supposed front-runners.  Does anyone have any new (or old) thoughts about who the President will pick or who he should pick?

Some prior posts on SCOTUS personnel:

May 15, 2009 at 05:11 PM | Permalink


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I dream of a day when judges are professional judges. They have experience taking responsibility for hard decision, are old and mature. They attend judge school for two years. Apprentice under an experienced judge for one year. Take the judge licensing exam. Carry judge malpractice insurance to make any victim of judge carelessness whole.

The main doctrine of these schools would be obedience to Article I Section 1 of the US Constitution. Catastrophic crimes against humanity ensue when that section gets violated. And judicial review is not allowed in the Constitution. Nowhere.

Obey the law, would be the motto of these judge schools.

Posted by: Supremacy Claus | May 15, 2009 5:27:57 PM

OT. here's one:


Posted by: federalist | May 15, 2009 6:47:20 PM

My gut reaction is that the names that have been put forward so far are names that people with various agendas are pushing. So as not to offended these people, the WH is saying sure we are considering them. But if I know Obama, it's more likely to hurt their case than to help it. Our course, I said that same thing when it came to the VP pick and lo and behold he picked Biden, who everyone said was a finalist. But I'm hoping that this pick is a little closer to his heart and that we are in for a surprise. This is really Obama's chance to put his stamp on the court and I hope he doesn't just give in to the Beltway heat.

Posted by: Daniel | May 15, 2009 9:40:24 PM

Granholm. Smart. Not a sitting federal circuit judge from DC Circuit. Midwest, not Coastal. Governor who can stand up for herself, the little people and against the smug brain trusts-- like Breyer on one hand and Scalia on the other.

Posted by: mpb | May 16, 2009 9:32:28 AM

One name, IMO that should be considered for, if not this slot one of the upcoming ones, is Akhil Reed Amar, who would be the first Asian American on the Court if confirmed. Both he and his brother Vikram would make, if not SCOTUS justices, excellent choices for their respective court of appeals.

Posted by: anon | May 16, 2009 11:49:43 AM

I like Pam Karlan and Martha Minow; they are both are forceful, sensible intellectuals, clear thinkers, progressive but with a clear sense of the importance of rules and procedure. Minow teaches civil procedure and is a stickler for the importance of rules, but also for making sure that those rules operate fairly in the real world, rather operating as traps for the unwary/excuses for courts to ignore diligent claims. (For example, she surely would have been with Souter in Bowles v. Russell.)

Posted by: dreamer | May 16, 2009 2:09:58 PM

I concur with mpb, and add that Granholm has a strong and diverse background. What other potential nominee has been an AUSA, chief counsel for a major county, state attorney general, and governor? She's charismatic, tough, Harvard educated, empathetic, and only fifty years old.

Posted by: anon | May 17, 2009 9:27:38 AM

Much has been written about whether empathy is a good or bad thing in a Justice, and I will let that debate continue without saying much more about it. There are three things I would add, however.

First, Lady Justice is blindfolded for a reason, and the symbol of blindfolded justice has been honored for many years, with good reason. "Result-orientation," by contrast, has been something of a dirty word in talking about judging -- also for good reason.

Second, today's recipents of empathy are not necessarily tomorrow's. To introduce empathy as a consideration is to go a long way toward inviting essentially political outcomes, in which today's favored interest group gets to have a thumb on the scale. This reduces both the stability and reliability of legal process. It is also unjust.

Third, whether -- for example -- Driver A or Driver B is at fault for an auto accident, and thus should pay for the injuries to the other, does not depend on which one was the "teenage mom" and which one was the middle-aged shop owner who makes $200,000 a year. It depends on who was following the rules of the road, a question that can be evaluated only by looking at the behavior of the drivers, not their race, gender, bank account or what have you.

Posted by: Bill Otis | May 17, 2009 10:52:39 AM

Empathy is a Trojan Horse for Rent Seeking. The knucklehead gets to devastate another day. Not a word about the victim.

Posted by: Supremacy Claus | May 17, 2009 1:58:26 PM

Question for you, Bill, and other concerned about empathy in judging: would you prefer a world in which computers rather than people were the judges/juries for most matters? Computers make decisions without empathy, and I keep wondering if all the anti-empathy rhetoric is an indication that folks would like to move toward a computer-like judicial system. Your thoughts?

Posted by: Doug B. | May 18, 2009 7:15:59 AM

I'll chime in here. You're point, Doug, is well taken.

The anti-empathists are the product of political and legal ideologies -- fostered by "innovations" like the USSG -- that promote the view that the law ought be mechanically applied by judges acting as automatons.

Those who hold this view, quite likely, have never really "lawyered" in the tradition of, say, Thurgood Marshall or the thousands of poverty lawyers, plaintiffs' lawyers, and public defenders who toil in our courts every day representing the little guys/gals. Folks who are, quite often, victims. They have likely never represented anyone in poverty, or someone who has been discriminated against, or someone who doesn't speak English, or who doesn't possess U.S. citizenship... or even someone who is truly working class.

Had they, they would have a deeper understanding of the term "victim" and recognize that the law does not favor those within our society's Great Unwashed. They would recognize that the law is a product of legislative and legal processes to which -- in our privately financed political and legal systems -- it is primarily those with money (and lots of it) who have the greatest access. The products of such processes naturally favor that class.

So, if our judges actually understand this (and many of do), they are in a position to correct some, but certainly not all, of the imbalance created by our subjective, flawed, and quite human lawmaking processes. To do this well, they must have empathy.

Posted by: Moshe | May 18, 2009 3:23:51 PM

I often find that those who "lawyer" for a living at non-profits and as "true believer" public pretenders have about as much in common with, and about as much understanding of, their clients as a master does of his dog.

"Great unwashed" indeed.

Smug sophomoric certainty masquerades as empathy. Leaky ideals blind hard realities. Noblesse oblige more wrong-headed than 1000 Marie Antoinettes.

Anyone who so completely misapprehends their role and their client is often as useless as a garden hose being sprayed on a roof during a California wildfire. The preeminent achievement being the self-aggrandizement of the lawyer - often to the detriment of the defendant.

A perfect example of this distorted reality is the oft-repeated (and retarded) belief that "we" all should put a monkey wrench in "the system" by refusing to plea our clients. Okay Binky, you put your client on the gears first. True, that's pie in the sky, but is shows the level of juvenile magical thinking displayed by this pack of Ivy League half-wits with more trust fund money than brains.

Being an advocate, a true advocate, should involve one being as clinically dispassionate as an automaton, an automaton that knows how that system works.

You go out and file that writ, you ask for recusal, you fight with the judge on a point you know is a loser and will never be error, you grandstand, you push and pull that helpless soul right into prison - it'll make you feel like million bucks as you say goodbye in the holdover cell to your "friend".

My clients aren't my friends. I am not a social worker. Contrary to your baseless allegation about "access" (whatever that means), rich people don't get a special handshake in court, but if they're smart (or lucky) they'll hire a steely-eyed professional (a Weingarten, a Ted Wells) who is there to win and not to prove a point.

The mealy-mouthed "true believer" only ever has one client, and tragically that client never goes to jail - his ego is too big to fit. It's not an accident these people often stay at non-profits when quality litigators, whether they be in the government or in the private sector, rise like cream to the top.

I don't blame them. Life is easy at the non-profit - nobody expects too much and as long as you memorize the passages from the Little Red Book, march in step, and keep your nose clean, you can kid most people that you're "lawyering".

Most people.

Posted by: Just "Lawyering" | May 18, 2009 5:58:44 PM

Court-o-rama's official pick is Massachusetts Chief Justice Margaret Marshall: http://court-o-rama.org/?category=Judges&post=marshall2

Posted by: Anne | May 18, 2009 8:41:23 PM

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