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Dark Horse Supreme Court Nominees:

By now, liberal interest groups no doubt have extensive dossiers on the non-squishy frontrunners for the next open Supreme Court seat, and will be ready with attacks immediately if one of these individuals is nominated. In turn, it would make sense for the Republicans to outmaneuver these groups by nominating a "dark horse" who hasn't received extensive attention. My personal dark horse favorite is my colleague Ron Rotunda, one of the nation's leading scholars on both legal ethics and constitutional law. I'm sure Ron and I would have many disagreements on various things, but he'd be a superb Justice. I'm sure folks have other ideas for dark horse nominees, so I'm opening comments.

Sean Sirrine (mail) (www):
Michael Chertoff would have made a great candidate for the Supreme Court. I don't agree with his politics, but his background is amazing, and the left would be unable to stop his nomination. Unfortunately, we lost him back into the realm of politics, or did we?
4.18.2005 5:37pm
lumen (mail):
How about Judge Cassel of the District of Utah: outstanding as an academic; lots of conservative credentials; writes some of the best opinions in the federal judiciary; and its about time we have someone with some "on the ground" experience (to go along with his intellectual heft) on the Court.
4.18.2005 5:39pm
Anonymous Law Student:
Way to go and ruin the surprise, Professor B.
4.18.2005 5:45pm
Phillip Carter (mail) (www):
My favorite dark horse candidate: Doug Kmiec at Pepperdine Law School. He has impeccable legal credentials, including his service as OLC chief during past GOP administrations. He's also a social conservative, which will please the GOP base. And he's widely respected as a Constitutional scholar. Oh, and he's pretty young and fit -- a prerequisite for an appointment to the high court these days. Prof. Kmiec will be around for quite some time.
4.18.2005 6:48pm
Scipio (mail) (www):
Professor George C. Cochran, of the University of Mississippi School of Law.

Professor George "Sweet George" Cochran

If anyone can out-irascible Justice Scalia, it's Professor Cochran. And hey, he was a clerk there, too.
4.18.2005 6:51pm
Another Mason Student (mail):
1. Between Rotunda and Scalia, this would be the best humored SC ever.
2. Though a dark horse, the folks who make these decisions do all know Rotunda very well.
4.18.2005 6:51pm
A Blogger:
Just a comment, rather than a recommendation: In an age of Google, I don't think a candidate becomes a "dark horse" just because they are not already on publicized lists of possible nominees. To be a dark horse, you really need to be someone whose views are unknown, a la David Souter.
4.18.2005 6:52pm
TO:
Sasha Volokh. Conservative credentials, same law school as many of the current Justices, relatively short paper trail, and better odds in the longevity department than any names I've heard so far.

Guido Calabresi. One of the darkest horses possible. Would undercut nearly everything GWB's critics have ever said about him, and if you stretch your imagination to its breaking point, imagine a parallel universe where 2 justices retire at the same time, and Dubya nominates Guido along with one of his less squishy frontrunners.
4.18.2005 7:02pm
Anderson (mail) (www):
Hi, Scipio! Alas, "dark horse" would exaggerate Cochran's chances greatly, certainly under this administration.
4.18.2005 7:06pm
John Steele (mail) (www):
Ron Rotunda's a great choice. Your link doesn't work, so here's a better one:

http://mason.gmu.edu/~rrotunda/spock.htm
4.18.2005 7:12pm
A.S.:
What are the chances that someone other than a judge will be nominated? Slim and None. (And probably not even Slim.)
4.18.2005 7:35pm
Confirmable:
Judge Richard Wesley (2d Cir.). It would be hard for Schumer to oppose him now given the things Schumer had to say about Judge Wesley when Wesley was being considered under NY's committee system.
4.18.2005 7:35pm
Anonymous Libertarian 3L:
Randy Barnett for the U.S. Supreme Court! (It'll never happen...) :(
4.18.2005 7:45pm
GMUSL 1L (mail):
Sean Sirrine -- Michael Chertoff also went to one of the finest high schools in the country. Going by his record and education, he's always been brilliant.
4.18.2005 8:15pm
Matt Barr (mail) (www):
A dark horse as in "moderate?" Cass Sunstein!

You want a dark, dark horse? Joe Lieberman.
4.18.2005 9:11pm
Grumpy Old Man (mail) (www):
Alex Kozinski of the 9th Circuit. Good writer, sense of humor, more-or-less libertarian world view.
4.18.2005 9:33pm
washerdreyer (mail) (www):
I'm a liberal, but Calabresi? Wouldn't you be worried that once he no longer he had any oppurtunity for advancment he'd return to his "Common Law for the Age of Statutes" theory? And people talk about activist judges now. It would be a very strong counter to (true) claims about Bush's partisanship and poltical calculation, but I don't see why anyone would care about that.
4.18.2005 9:33pm
Elliot (www):
Judge David Godbey, NDTexas. Graduated Magna Cum from Harvard, short paper trail.
4.18.2005 10:32pm
Law Clerk:
Michael Stokes Paulsen, professor at the University of Minnesota. Brilliant, and brilliantly funny, guy. Only problem is that, in his own words, he is "unconfirmable." However, he is, again in his own words, a wonderful recess appointment (things might come to this).
4.18.2005 10:52pm
Justin (mail) (www):
Since (as a liberal) my personal preference of Wilkenson is likely to go unanswered ::sigh::, I'll throw out some names that I would like but are long shots:

Michael McConnell (too nepotist)
Andrew Kleinfeld (too moderate)
David Ebel (too old)
Alex Kozinski (just for the hearings)

Let me, by the way, say thanks to George W. Bush by throwing potential nominee Jay Bybee to the wolves. I can live with Roberts, who, my guess, is going to be the guy.
4.18.2005 11:58pm
Adam (www):
Sleepers have to come from the state courts -- any federal judges or professors have a decent paper trail.

I'd love to see a Kozinski confirmation hearing.
4.19.2005 12:26am
PersonFromPorlock (mail):
The mere tactic of proposing 'unknown' nominees will not trump a strategy of truculent opposition; it would take the Democrats ten minutes to come up with a 'serious' objection to any non-liberal nominee to an important court. A factual basis for that objection, or consistency with previous statements, would be a problem only if shame were a factor and then only if the MSM paid attention.

Instead, let the President announce that he regards a Senate failure to reject a nominee within, say, ninety days as an 'implied consent' to the nomination. This is a reasonable (and nowhere forbidden) response to obstructionism that puts the onus for further action on the Senate, where it belongs.
4.19.2005 8:35am
nd_eric_77 (mail):
GWB and the Republican party would pay a HUGE price if he were to nominate any non-pro-life candidate. We in the pro-life movement have worked way too hard to promote GWB and other pro-life politicians to have our views overlooked. Go pro-abortion, lose the base in 2006 (an off-cycle election where shoring up the party's base is most essential).
4.19.2005 8:52am
j:
personally, i like carrie underwood, but she is hardly a dark horse, having been favored through this whole thing along with bo bice. my dark horse would have to be constantine maroulis - has really come through lately, and i think he can get the votes.
4.19.2005 9:25am
GMU 3L:
I nominate Michael Krauss, if only to see the 40-foot golden statute of himself he would undoubtedly order built.
4.19.2005 10:34am
random columbia 1L:
How about Michael Mukasey? strong on terror, would mend fences with the northeast without actually putting anyone too liberal on the court, and once ginsburg steps down, which can't be in more than a couple of years, there'll still be a Jewish justice...
4.19.2005 11:21am
Keith L. (mail):
Eugene!
4.19.2005 11:52am
KW (mail):
The best possible candidate, by a long way, is also one who is, for political reasons, a dark horse:

Richard Posner.

He's one of the great legal minds of our generation. He's conservative, but he's no one's lackey. He's not the reliable conservative that much of the right wants on the court, but he's certainly more conservative than not. On the other hand, his definite not-a-party-hack posture makes him attractive to liberals.

Alas, it probably won't happen.
4.19.2005 12:53pm
TO:
Mukasey was actually one of the judges that Schumer suggested to the President.

Schumer's letter here

I suppose any of those candidates might be considered dark horses now, but not in the sense that Bernstein suggests. I imagine that their paper trails have been investigated already.
4.19.2005 1:01pm
TO:
Sorry, can't get the link to work.

Schumer's letter is here
4.19.2005 1:02pm
Armand (mail) (www):
I think it's really sad that Kozinski would be considered a dark horse. That someone of his (almost unmatched) abilities isn't more seriously considered suggests that something is very wrong with the process.

The Cassel idea is really interesting though (as is McConnell, but I can't imagine he's a dark horse).
4.19.2005 2:21pm
Challenge:
I think it's curious that some believe the Court should be some sort of meritocracy. Sure, Richard Posner is probably one of the greatest legal minds of all time, but he holds some pretty unpopular views (with both parties). That said, I would take him any day of the week over another Souter. Hell, even over another O'Connor or Kennedy. But conservatives are looking for another O'Connor, we're looking for another Thomas or Scalia. Posner would make a great candidate if there was a split government (Moderate Dem with Republican Senate or Republican with Democratic Senate). Considering that is not the case, Posner isn't a dark horse, he's a pipedream.
4.19.2005 4:22pm
marc garber (mail):
I think it's time to put someone on the Court who's not from academia, either directly or through a current court of appeals position. Someone with a world of practical experience.

Don't know how many of you know Joe Whitley, but he's the outgoing general counsel of Dept of Homeland Security, former acting Deputy AG under Bush I, former 2-time U.S. Attorney for districts in Georgia, former ass't DA in Columbus Georgia, former partner at Alston &Bird in Atlanta, and active member of the Federalist Society.

Very practical views overlayed on strong, principled beliefs about the Constitution.
4.19.2005 5:03pm
RWS:
Judge Posner has expressed support for Roe v. Wade. End of discussion for him. Whoever it is, he'll have a clean nose, and there will be some sort of assurance that he does not go for unenumerated privacy rights.
4.19.2005 6:20pm
Bill B. (mail):
Professor Russell Christopher of the University of Tulsa College of Law would be an excellent dark horse nominee. He is an emerging genius in the field of criminal law. His nomination would be a great idea since he would be set apart from the usual corporate lawyers or legal conservative theorists.
4.19.2005 6:33pm
arbitraryaardvark (mail):
Dark: Jeb Bush. Darker: Michelle Malkin.
Posner is too old. Bolick?
Of course we don't know that it'll be a republican to get the next vacancy.
If they pick someone fairly young, no more than 50, then in 2050 they would be 95, by which time life extension could prolong his/her life to 2070, by which time... the life expectancy of the next justice, short of assasination, could exceed the life expectancy of the united states.
Patri Friedman might be a good choice.
You want to have two nominees lined up, one moderate, but just offensive enough to not get confirmed. Then bring on an extremist and hang tight.
Another possibility is that Rehnquist takes senior status, but becomes the power behind the throne.
4.19.2005 7:36pm
Justin (mail) (www):
As a liberal who likes winning elections, I highly endorse the idea of Michelle Malkin.
4.19.2005 8:52pm
Justin (mail) (www):
Wow, I didn't even know Ann Williams was a Republican. Of those on Schumer's list, only Prado has a chance. I like the others way too much.
4.19.2005 8:53pm