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July 16, 2009

Is it already time to start assembling another SCOTUS short list?

This new New York Times article, perhaps reflecting the boring realities of the on-going confirmation hearings for Judge Sotomayor, is already looking ahead to the next SCOTUS nomination battle: "As the two parties skirmish over the Supreme Court nomination of Judge Sonia Sotomayor, some of their rhetorical fire is aimed not at her but at the next justice President Obama may get to pick." Here is the basic set up:

By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet.  The Republicans hope their aggressive questioning of Judge Sotomayor on race discrimination, gun control and the death penalty will make it harder for Mr. Obama to choose a more outspoken liberal in the future.

Liberal activists, by contrast, hope the hearings demonstrate that a Democratic president has nothing to fear from Republicans who have not rattled Judge Sotomayor.  If she is confirmed by a commanding vote that includes a number of Republicans, the activists argue, they will have given Mr. Obama more political running room next time to name a more full-throated champion of liberal values.

Because we do not yet know who or when another Justice will step down, I think it is silly to spend too much time anticipating the personhood and politics surrounding the next SCOTUS nominee and confirmation battle.  Still, with the Sotomayor hearings becoming such a snooze-fest, I welcome comments about what the next round might look like (and whether sentencing law and policy will ever get the attention it deserves).

Some older pre-Sotomayor posts on picking Justices:

July 16, 2009 at 08:58 AM | Permalink


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Under the assumption that Ginsburg is next to go I suspect the left is going to end up dissapointed once more. The tools of conservative jurisprudence have won out for the time being and any judge who makes rulings not relying on the text of statutes etc is going to have an extremely difficult confirmation.

The one area the left is going to be pleased with the replacements is youth. I suspect there are going to be lots of people who look back at this nomination who think "He could have done so much more if he hadn't played identity politics games".

Posted by: Soronel Haetir | Jul 16, 2009 9:17:05 AM

I don’t agree with the premise that this nomination constrains what he can do with the next one. After all, President Reagan’s first nomination was Sandra O’Connor, and his second was Antonin Scalia. It is hard to imagine a greater contrast. Similarly, George H. W. Bush’s two nominees were Souter and Thomas—again, a huge difference.

All Sotomayor has proved so far is the ability to be evasive. Once she is on the bench she has no obligation to vote in any particular way. Justices don’t always turn out the way they seemed at their confirmation hearings. Remember, conservatives were pleased with Souter initially.

Posted by: Marc Shepherd | Jul 16, 2009 9:35:27 AM


I'm seeing the timing being a bigger constraint than this pick. Again, assuming Ginsburg is the next departure the confirmation may well be approaching the heat of the next election cycle. If the economy and other issues don't improve I can well see the Democratic majority being leery of a tough confirmation.

And if the next departure ends up after the 2010 cycle the Senate may well be more balanced. Right now the Democrats have their best shot at putting anyone they want on the Court, yet the nominee does not at least appear to be a true wacko. I'm sure there will be plenty of opinions she joins I will disagree with, but that is true of every member of the current SCOTUS bench.

Posted by: Soronel Haetir | Jul 16, 2009 10:17:24 AM


I agree with your analysis of the political situation. If Obama doesn't get another pick before the next Congress, he will likely face the same problems as Reagan, post-1984 election. Had Reagan gone with Bork before 1986, and Scalia with the new Dem Senate, both would likely have been confirmed. OTOH, if Obama had gone with Woods or someone more liberal, he might not have any capital left for health care, etc.

So the question then is, will another justice step down at the end of Oct 09 term? It almost seems more likely than not given Stevens and Ginsburg. Unless both want to stick it out to set records (Holmes, Brandeis, IIRC).

Posted by: . | Jul 16, 2009 10:55:24 AM

All presidents are at least somewhat constrained politically. That’s why the Founders gave the Senate a role to play. Many presidents, including Johnson, Nixon, Reagan, and George W. Bush, have been forced to withdraw nominees, and it very nearly happened to Bush père (with Thomas being confirmed by the narrowest margin in history). You have to figure that many other nominations were constrained by what the president realistically thought he could get away with. Even President Clinton’s two nominees were nowhere near as liberal as some Democrats would have wished.

Most political analysts believe that the Democrats will hold onto at least a 60-seat margin after the next election, as they are defending fewer seats than the Republicans, and very few of their seats are truly at risk. But Obama knows that pure-blooded liberalism is still a dirty word in politics, and I am sure he will bear this mind if he gets to fill another seat.

Posted by: Marc Shepherd | Jul 16, 2009 11:26:15 AM

The most likely scenario is that Obama will choose the most politically advantageous candidate. That's certainly what happened with Sotomayor. She's a two-fer: that is, she was a reward to two Democratic-oriented constituency groups, women and Hispanics.

I haven't heard anyone claim that she was the best qualified one out there. Tribe, Kagan and Seth Waxman come easily to mind as having more intellectual firepower. But they were not as attractive for purposes of identity group politics, and identity group politics is the name of the game in the Democratic Party just now.

There are some political contraints on Obama, but not many. He's got 60 votes in the Senate, plus (probably) some weenie Republicans. As Marc points out, other presidents have had to rein it in, but those were special cases. Fortas had big time ethics problems; Bork was linked (unfairly) to Watergate; Miers was too obviously unqualified and had even Republican senators all but gagging. (This is not a knock on Miers, who is both quite smart and gracious, but simply did not have the kind of career that prepared her for the Supreme Court).

Bottom line: Obama has a free hand.

Posted by: Bill Otis | Jul 16, 2009 12:26:52 PM

As it stands now I agree with Soronel. But a year in politics is a lifetime. I don't think that Obama reelection is certain. Two years ago most people hadn't heard of Obama. Who knows what's going to happen with the economy.

It's difficult for me to imagine a set of circumstances where we will get a more "liberal" person on the bench but I don't think it's impossible.

Wait and see.

Posted by: Daniel | Jul 16, 2009 12:28:47 PM

...identity group politics is the name of the game in the Democratic Party just now...

I agree with most of what Bill Otis said, but exactly what kind of politics were at play when McCain selected Sarah Palin as his running mate? How about when the party selected Michael Steele as its national chairman? I realize that those weren’t judicial appointments, but weren’t they “identity politics” too?

Posted by: Marc Shepherd | Jul 16, 2009 1:44:16 PM

A strong argument can be made that Palin was chosen to shore up the Republican base among whom McCain was not looked on favorably. Certainly identity politics came into the specific choice but Palin was supposed to provide a bit more than just that, which I don't really see with Sotomayor.

Posted by: Soronel Haetir | Jul 16, 2009 1:54:04 PM

A strong argument can be made that Palin was chosen to shore up the Republican base among whom McCain was not looked on favorably.

Yes, but having decided they needed a rock-ribbed cultural conservative, plenty were available with qualifications superior to Palin’s. That she got the nod, rather than somebody else, was identity politics, pure and simple.

Mind you, I do not object to that kind of politics. I object to the suggestion that it is something only Democrats do.

Certainly identity politics came into the specific choice but Palin was supposed to provide a bit more than just that, which I don't really see with Sotomayor.

Beyond her ethnicity and gender, I believe Sotomayor was chosen to attract Republican votes. As others have noted, if he had wanted a pure liberal who would be confirmed on a party-line vote, there were others farther to the left whom he could have chosen. Even Senator Cornyn noted today that most of Sotomayor’s judicial rulings have been reasonable. I don’t know whether she’ll get his vote, but that’s a pretty significant concession.

Posted by: Marc Shepherd | Jul 16, 2009 2:21:22 PM

I agree with most of Bill's comments. Obama had a free hand. Personally, however, I think that hand could have been played much worse for conservatives/Republicans. In fact, I think this was a lost opportunity for those strong liberal ideologues, who said they wanted a liberal equivalent of Scalia. (Note, I don’t count myself among that group). And their opportunity was lost due to identity politics.

Posted by: DEJ | Jul 16, 2009 2:21:35 PM

Marc is right. Of course the choice of Palin was identity group politics (women). Of course the choice of Steele was identity group politics (African Americans). Of course no one claimed either Palin or Steele was the best one out there.

As usual, Bill O. criticizes the Democratic party for certain actions, while failing to acknowledge that his own party does the exact same thing.

It's not clear whether Bill O. dislikes identity group politics in general, or just identity group politics practiced by Democrats.

Posted by: lawyer | Jul 16, 2009 2:22:26 PM

The short lists, of course, are already assembled: they are the same short lists that were assembled before Sotomayor was picked, minus Sotomayor. There is little chance that anyone will fall off the list or rise to prominence within the next year or two.

As to the politics of the next confirmation, my prediction is that Obama will get through whoever he picks, even if the nominee is substantially less moderate than Sotomayor. Conservatives blew their wad crying wolf over Sotomayor, screaming to the hills that a moderate and by-the-book judge was some liberal racist hippie antichrist. That storyline won't gain as much traction next time. ("I know what we said about the last one, but THIS nominee is REALLY racist!")

Posted by: CN | Jul 16, 2009 2:39:51 PM

Marc --

Steele was identity group politics for sure, and not very smart identity group politics either, since he has done nothing visible to me to advance the Republican Party.

Palin is a different case. McCain was never popular with the Republican base, which was a good bet to just stay home on election day, sinking an already leaky ship. The most important thing about her was that she gave the base some enthusiam McCain wasn't going to get anywhere else.

Second, Palin was needed just to shake things up. It looked (and turned out to be) a Democratic year. If McCain had gone with a conventional pick, he was going to remain on the same slide to defeat that all the polls said he was on in late August. He had to change the game. Part of that was gender-related, but not all of it. In this sense, Palin did for McCain what someone like General Patraeus would have done -- outside the box.

Third, McCain was trying to build a campaign theme as a reformer. Palin was a good pick for that purpose. She had been feuding with the oil and gas interests that hold sway in Alaska for years, and with those segments of the Republican Party most aligned with them -- which is to say, in Alaska, the Murkowski family.

Fourth, McCain was pitching for some of the Hillary vote. Had the primaries been in a different sequence, Hillary almost surely would have won the nomination. Now it may seem odd to some -- it certainly does to me -- that many Hillary voters would have come over to McCain solely by virtue of his choosing a woman for VP, but apparently this is what the internal polling was showing.

Only after these considerations was the fact that she was a woman per se important to McCain.

Posted by: Bill Otis | Jul 16, 2009 3:01:04 PM

Bill, we’re substantially in agreement. I don’t know in precisely what order McCain considered all of those arguments for choosing Palin. If he makes decisions like most people, I suspect that all four of those factors were bouncing around at once. I mean, there are almost always other factors than just gender and race, much as Sonia Sotomayor has other qualifications besides speaking Spanish and possessing a uterus.

Posted by: Marc Shepherd | Jul 16, 2009 3:29:54 PM

I think the next nominee really depends on who leaves the Court first. If its Ginsburg (which I think is most likely), I'm putting my money on Diane Wood or Elena Kagan as the likely pick, with advantage to the former. I just don't see Obama as trying to increase female representation on the Court, then ignoring the disparity once Ginsburg leaves.

If it's Stevens, on the other hand, I'm guessing a more non-traditional pick of Harold Koh. Despite being fairly left of center, he isn't particularly alienating to conservatives--he's known for being supportive of conservative faculty and students, and he's advised Democratic and Republican administrations. And aside from obvious identity advantages (Asian and partly disabled), he'd also be a nice change from the revolving door of appellate judge nominees.

In either case, the GOP will put up a fight, and in both cases I suspect they won't have the votes to filibuster. Even if Republicans pick up a few seats this next go-around, I don't see them all marching in lock-step to block a nominee that couldn't really be worse, from a conservative point of view, than the justice s/he is replacing.

Posted by: Res ipsa | Jul 16, 2009 4:06:49 PM

From what I've read of Koh many conservatives may well consider him worse on the court than Stevens. Has he even managed the State appointment yet? Last time I looked that was still held up.

Posted by: Soronel Haetir | Jul 16, 2009 4:48:37 PM

If it's Koh, the Republicans will go ballistic. Even the weenie Republicans would stay aboard the fillibuster ship, and would probably be joined by Ben Nelson and possibly others, like Mark Pryor. Lieberman would likely stay with the Democrats, if for no other reason than that Koh is the former Dean of homestate Yale Law School. But there would be a fillibuter, and I think it would be better than an even bet to succeed.

Sotomayor is going to get a pass on the "wise Latina" stuff. Koh, however, is not going to get a pass on his positions, starting with what he's said about the (high) place of international law in interpreting the Constitution. My guess is that Obama will not want to spend political capital defending that sort of thing. I think the public is much more likely to buy "empathy" as a desirable quality in judges than to go along with the notion that American law should tip its hat, if not genuflect before, the law of other countries.

Posted by: Bill Otis | Jul 16, 2009 6:10:49 PM

I must be watching different coverage - Help point out the "hate"..... Once one gets past the prejudice then only those that are behind will speak of and with it and harbor the hate.
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Posted by: runescape gold | Jul 16, 2009 11:15:54 PM

DEJ. I agree with you 100%. With Sotomayor the donkeys sold their soul for a mess of pottage.

Bill. I hardly think that Koh is as horrible as you make him out to be. Their are lots of Republicans who have supported his nomination. In fact, I think that his nomination shows that Republicans are not a monolithic block as people like to pretend.

OTOH, I don't think Koh will be the choice so the point is moot.

Posted by: Daniel | Jul 16, 2009 11:45:23 PM

Daniel --

It's one thing to support a person to become Legal Advisor to the State Department. It's very much another thing to support him for a lifetime seat on the Supreme Court. Sen. Russ Feingold made a similar point when he voted to confirm Alberto Gonzales for AG, all the while noting that doing so did not mean he would cast the same vote if Gonzales were nominated to the USSC.

Neither party is a monolith. The Dems go from Al Franken to Ben Nelson, and the Reps from Olympia Snowe to John Cornyn.

Posted by: Bill Otis | Jul 17, 2009 8:49:55 AM

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