The Case for Michael McConnell:
Lots of people are wondering who the President will pick to replace Justice O'Connor now that John Roberts is well on the way to confirmation as Chief Justice. I don't have any special insight about who the President will choose: the President can consider any range of different personal and political factors. But if special insight is far beyond my ability, amateurish speculation based on a questionable assumption is not. So here is a little amateurish speculation based on a questionable assumption.
Specifically, let's assume that the President is motivated purely by political considerations, both in terms of short-term goals such as the satisfaction of interest groups and the long-term goal of influencing the law. If those are the President's concerns, who among the names on the short list should he choose? I think the smartest pick would be Michael McConnell of the Tenth Circuit.
Here's my thinking, starting with the long-term considerations and then turning to the short-term considerations:
1. McConnell is conservative enough to be a key conservative vote in lots of important cases, but not so conservative that he would alienate a centrist like Justice Kennedy. The basic math here is counting to five; moving the law in a particular direction at the Court requires a particular distribution of viewpoints rather than a strength of them. A more conservative nominee doesn't mean a more conservative court, as what matters is the viewpoint of the center rather than the edges. McConnell is probably conservative enough to be a conservative vote in most of the kinds of cases in which five conservative votes are going to be feasible.
2. McConnell would likely be a key ally of Chief Justice Roberts. My sense is that McConnell's views of the law are roughly in the Roberts camp: conservative but institutionalist.
3. McConnell is by all accounts quite brilliant, and his intellectual leadership (together with Roberts') could help influence trends in American legal thought for a generation.
4. Moving on to short-term considerations, a McConnell nomination would be controversial enough to please the Right, but uncontroversial enough that McConnell would likely be confirmed. Specifically, McConnell has been outspoken about abortion, but is also an extremely bright and and articulate person who has considerable bipartisan support.
5. McConnell would stand up well to harsh questioning in Senate confirmation hearings. He would provide a good contrast with Roberts, too. While McConnell is just as sharp, balanced, and articulate as Roberts, he is less suave and more direct.
6. Although McConnell is a white male, my sense is that nominating another white male won't have significant political ramifications for the Administration. I'm no expert on such questions, but I don't think there are many people who are hinging their support for the Administration on the race or gender of its Supreme Court nominees. Those on the right want a conservative; those on the left would be relieved to have a more moderate white male rather than a more conservative nominee who is a woman or a member of a minority group.
That's my amateurish speculation, anyway. As always, comments welcome.
Specifically, let's assume that the President is motivated purely by political considerations, both in terms of short-term goals such as the satisfaction of interest groups and the long-term goal of influencing the law. If those are the President's concerns, who among the names on the short list should he choose? I think the smartest pick would be Michael McConnell of the Tenth Circuit.
Here's my thinking, starting with the long-term considerations and then turning to the short-term considerations:
1. McConnell is conservative enough to be a key conservative vote in lots of important cases, but not so conservative that he would alienate a centrist like Justice Kennedy. The basic math here is counting to five; moving the law in a particular direction at the Court requires a particular distribution of viewpoints rather than a strength of them. A more conservative nominee doesn't mean a more conservative court, as what matters is the viewpoint of the center rather than the edges. McConnell is probably conservative enough to be a conservative vote in most of the kinds of cases in which five conservative votes are going to be feasible.
2. McConnell would likely be a key ally of Chief Justice Roberts. My sense is that McConnell's views of the law are roughly in the Roberts camp: conservative but institutionalist.
3. McConnell is by all accounts quite brilliant, and his intellectual leadership (together with Roberts') could help influence trends in American legal thought for a generation.
4. Moving on to short-term considerations, a McConnell nomination would be controversial enough to please the Right, but uncontroversial enough that McConnell would likely be confirmed. Specifically, McConnell has been outspoken about abortion, but is also an extremely bright and and articulate person who has considerable bipartisan support.
5. McConnell would stand up well to harsh questioning in Senate confirmation hearings. He would provide a good contrast with Roberts, too. While McConnell is just as sharp, balanced, and articulate as Roberts, he is less suave and more direct.
6. Although McConnell is a white male, my sense is that nominating another white male won't have significant political ramifications for the Administration. I'm no expert on such questions, but I don't think there are many people who are hinging their support for the Administration on the race or gender of its Supreme Court nominees. Those on the right want a conservative; those on the left would be relieved to have a more moderate white male rather than a more conservative nominee who is a woman or a member of a minority group.
That's my amateurish speculation, anyway. As always, comments welcome.
Your insight seems pretty keen thus far. My guess is that the Administration won't want someone with an extensive paper trail, especially on key issues like abortion. I do think the president has a woman in mind for his next appointment. Who knows, though.
This is not to say that there aren't well-qualified people who happen to not be a white male, and I have no objection to their appointment; my objection is to racial pandering, and I admit that I don't understand the mindset that race or gender is at all relevant to the Supreme Court. I am a white male; my closest ethnographic match on the court is Justice Souter, with whom I have absolutely nothing in common. By contrast, the two Justices with whom I have most in common in terms of philosophy are Italian-American - I've never even met an Italian-American, to my knowledge - and a n African-American. Identity politics is profoundly silly, in my view, and of no relevance that I can see to a legal institution.
None-the-less, society has certain demands, Bush has certain goals, and I have confidence that if he must appoint a non-WASP, he can find one who is superbly qualified. Or, he may just appoint Soutero. You know, whichever.
Don't you think his interests in keeping hispanics on the Republican team, not to mention as many women and blacks as he can, will motivate him to pick someone who isn't white and male but is still fairly conservative?
I think you are thinking too much like an academic and not enough like a pol. His best bet is Clement. Garza, Jones and Owen will get filibustered as anti-Roe. Gonzales makes everyone crazy, the right because of Roe and the left because of torture memos.
Bonus points: Clement is from New Orleans. Who cares, you say? A president with an approval rating below 50%.
If you think Bush's approval is low now, a Gonzales nomination would sink him. Immigration and the deficit is ticking off a lot of his base and many independents. I really don't think it has much to do with Iraq or Katrina.
Now that is the understatement of the week.
McConnell's issue on Establishment are similar to O'Connor's? Or just his level of interest?
So what? Roberts will be easily confirmed because the forces above had little they could nail him on. That is not true of McConnell, as distinguished as he is, because he's written too much, including about Roe.
It's not necessarily a bad idea, politically, for Bush to push a qualified nominee who will likely provoke a fillibuster. It is, however, risky, and he chose to sidestep that risk with Roberts (when his political position was somewhat stronger).
Rehnquist - 68-28 (original vote)
Stevens - 98 - 0
Scalia - 98 - 0
Kennedy - 97 - 0
Souter - 90 - 9
I think the key phrase you used was, "I don't know", as in, you don't know what you're talking about. And in case you're wondering, Breyer had 9 nays, and Ginsberg had 3. I guess Republicans just oppose, oppose, oppose.
While Anderson and Orin are right that this is probably a true statement, the real motivating factor that is likely to prevent appointment of a white male is that the President and his political advisers have repeatedly stated their interest in expanding the diversity among supporters of the Republican Party, not just the current Administration, and their actions in past appointments (and statements about the diversity represented in the Cabinet) indicate that they see appointments as a way of broadening that appeal.
(1) GWB isn't running for office again. Sure he'd like to pick up support in 2006, but at this point he's got to be making decisions like SCOTUS nominations with far more of an eye on his legacy than on the polls.
(2) If GWB replaced all of his cabinet officials with conservative African-Americans, his single-digit support among African-American voters wouldn't shift significantly.
(3) Unless they can actually marshall a filibuster (which seems unlikely) the Democrats get to choose between acting bipartisan, or kicking and screaming.
Now that might be a fight Bush can win, but it might not be one he actually wants given his current approval ratings. Nominating someone with a bit less of a paper trail on Roe and who isn't a white southern male would help him out in the Senate.
I'd bet Clement. The rumors from last time had to come from somewhere.
Sure, but he has to decide what fights he wants to pick and what legacies to leave; he may decide a bruising SCOTUS battle wouldn't be worth a minimally more conservative court, and would hurt his cause on tax cuts and other domestic policy issues.
And Bush's desired SCOTUS legacy may not be yours, e.g. appointing a certain young Hispanic lawyer. (For what little it's worth, I don't actually think he'll appoint Gonzales this time around. Maybe for Stevens.)
There are a couple of points to consider. Bush is immensely loyal to the people he personally has selected for high posts before (as evidenced by his seemingly senseless promotion of Gonzalez up the ranks). McConnell qualifies under that rubric. On the other hand, so would Larry Thompson, the (former?) #2 guy at the DOJ. By all accounts, Thompson is brilliant and solidly conservative (though his deference to executive power is a little troubling). The bonus is that he is black. They could try to pull a Thomas on him and stonewall him. After all, I think the Democrats would look awful if the only two blacks on the Supreme Court are solidly Conservative. Estrada is a possibility if he wants it, since he also qualifies under the "previously nominated for something" rubric.
Alito won't happen. The guy has the nickname Scalito for a reason. And I am afraid he will get nailed for his opinion in Casey, which eventually got overturned by SCOTUS. Too bad, as I hear he is one of the nicest and humblest people out there. I really doubt that Gonzalez would happen given how upset people in the Republican base will be. Neither the religious right crowd, nor the libertarians want him. I don't think that Rove is that dumb.
I mean, we will never see another Justice of Scalia's calibre (and I choose that adjective to implicate both of its definitions), period. The blunt, plainspoken and direct style at oral arguments - "a big cat batting around a ball of yarn" - and the pithy opinions will leave the court with him. Alito, by all reports, does not share these qualities. But while Justice Thomas does not share these qualities either (which is precisely why there is a NinoMania, Ninoville, Cult of Scalia etc. etc., and - not yet, at least - no ClarenceMania, Clarenceville of Cult of Thomas), he remains a Scalia-style originalist in the ways which actually count. Calling anyone a Scalia clone, Thomas in particular, is highly inaccurate statement per se, and I suspect that Judge Alito far more closely resembles - in style and in thought process - Justice Thomas. But that doesn't facilitate such a handy soundbite as "Scalito", does it. ;)
Perhaps Justice Scalia will be so good as to put a speech at Indiana University or Purdue on his itinerary at some point in the next couple of years, and then I will get to say that I have met an Italian-American. ;)
(1) Dems need it to energize their base for 2006.
(2) The GOP need it to energize their base for 2006.
Given that, if picking up seats in 2006 (as opposed to his long-term impact on American jurisprudence, a.k.a. legacy) is GWB's primary motivation in this pick, he's got to pick someone who (a) gets the GOP's conservative base excited (so they get out and vote in 2006) and (b) allows the Dems fight to be portrayed as out of the mainstream.
The recent prominence of religious freedom via the Pledge case gives GWB an opening via a nominee like McConnell to make this about issues where the conservative position has far more support than the liberal one (i.e. it's not all about Roe). Handled properly, he could be an inspired choice.
Second, whoever thinks this Administration gives a tinker's damn for libertarian wishes has been living in a hole for the past five years. If there is one thing I can predict about the nominee, it's that they will at best have nothing to recommend them to libertarians, and at worst be actively hostile. (Is that still one thing?)
Third, there really is no front-runner at this point. Orin could well be right; McConnell's got as much of a shot as anyone. Personally I think Bush wants more than anything to nominate Gonzalez, it's just a question of how serious conservative Senators (eg Brownback) are about rejecting him. And if they're going to reach way down and find someone like Scalia, I'm re-nominating Kozinsky. (He may not have the whole social-conservative thing going, but damn can he write!)
I'm not much familiar with Kozinski - I did a quick google search and turned up this - so we're saying that he can definitely do Scalian soundbites without difficulty. Sounds like you're more familiar with him, though. Care to make a sales pitch?
"He doesn't believe in substantive due process" doesn't sound as damning to the person on the street as "if he's confirmed, the court will have seven white males," or better yet, "we had hoped he might nominate one of [insert name of identity group here], but he didn't, and this is a slap in the face and further proof that GWB doesn't care about [insert name of identity group here]." The whole "a court that looks like/represents America" canard was circulating for a brief time when Roberts was nominated to replace O'Connor, but died out when Roberts was shifted to being Rehnquist's replacement.
I think the identity politics card is more important for the next nominee.
Hopefully this would not be exploited, but the reality is that the story of his wife's death on September 11 would dominate coverage of the confirmation process. He is the most measured, reasonable man I've ever seen on the occasions when I've seen him interviewed about September 11, suggesting that a few Senators and interest groups are unlikely to phase him. He is 65, unlikely to serve more than 15-20 years, which might mitigate opposition. He has even less of a judicial paper trail than Judge Roberts.
None of this speaks to his qualifications for the Court, just the extrajudicial dynamics that might be at play during his confirmation. The Federalist Society wing of President Bush's base would be beside themselves with delight.
It strikes me as absurd to someone who has as little knowledge of the existance of other identities to be lecturing or even really having anything remotely approaching a well informed opinion on identity politics. Now this isn't to say that your opinion is in line with other people who do have requisite experiences, but it seems like your own viewpoint doesn't have any individual merit to it.
Indeed, someone who thinks of a minority as any non-WASP strikes me as fundamentally misunderstanding modern American identity politics.
Not saying that Americans will be glad that Barbara Olsen is dead, only that her life will not neccesarily be seen as reflecting upon Ted Olsen the types of moral characters that Americans associate with good judging.
It will be Judge Callahan
None of which is much relevant to the point that I was making, which is that factors such as ethnicity or gender seem irrelevant to the function of the court, and the likely jurisprudential disposition of its members.
From my possibly naive viewpoint, it strikes me that "identity politics" is what leads people to claim that Justice Thomas, General Powell and various other high-profile black Republicans are, in fact "not black", or are somehow racially devalued by their political views, as if there were a default "black" political philosophy any more than there is a default "white" political philosophy.
Judge Kozinski is Jewish, and is an immigrant from Eastern Europe (Romania). There are multiple strands of identity politics that can play in his favor.
As far as intra-court dynamics go, he clerked for Anthony Kennedy on the Ninth Circuit. It would be expected that he might be able to influence Justice Kennedy more than someone who has no connection to him.
The President's base in the GOP would be thrilled with this nomination. Kozinski was one of the leading names suggested for Supreme Court appointment by conservative opinion leaders during the first Bush administration. I don't think anything he has said or done since then would change their minds.
While he has a long paper trail (2 decades of appellate opinions and numerous law review articles), there is no reason to think that he would not hold up well under hostile questioning - he is regarded as one of the most brilliant judges on the federal bench.
His age (55, IIRC) also suggests he would be able to serve for quite some time.
Personally, I think Edith Clement will be chosen - and several political dynamics are at play there, including the fact that she was publicly known to be on his short list the last time, which would make her selection this time seem less like a political maneuver.
I don't expect a nomination of Alberto Gonzalez to replace any conservative or swing-vote justice - although for Stevens, Ginsburg, Souter, or Breyer, Bush would get a pass from most of his base to pick whoever he wants without recriminations.
Nick
2. Another sleeper pick for this slot? Cuban-born Danny Boggs of the 6th Circuit.
As far as Judge Callahan goes, her law degree from McGeorge should be disqualifying. I'm not a snob, but the appellate judge I clerked for told me he had only one rule when hiring clerks: no McGeorge grads.
(1) I need more sleep, or
(2) I need to get out of Mississippi.
Of course, it could be both.
Ted Olson would be a very good choice. But didn't he argue Bush v. Gore? And wasn't there some opposition to him being named SG? Also, David Brock's allegations re: Arkansas Project will get brought up. Again, I think he'd be great. But I doubt it will happen.
Kozinski would indeed be a good choice. But again, too libertarian for "the base" and I think that his decision to not reconsider certain Circuit rules to prevent a last-second execution that might have been suspect could be brought up. I remembered reading about it in a Salon or Slate article a couple of years back. He is very well-respected in even liberal circles, though and would undoubtedly make for a very entertaining confirmation. I can just see it. Arlen Specter: "Don't treat us like children." Koz: "Well, if the shoe fits, get it in every color!"
I wonder why no one has mentioned Eugene Volokh as a dark-horse candidate ;-) Glenn Reynolds has already started campaigning.
It would also demonstrate that he lied to the American people, was elected on false promises, and doesn't care the least about originalism.
If the Supreme Court didn't stick its nose where it doesn't belong, then maybe "merit" would have a higher place in selecting justices. The Supreme Court isn't law school admissions, it's a branch of government. A government which is supposed to be for the people, by the people, and of the people. Merit is a secondary consideration. Posner has one of the finest intellects of this century, but why any one would want him on the highest court--other than for interesting reading--is beyond me.
That Bush doesn't much care for originalists, someone here made the point not too long ago, I think, seems abundantly clear, in retrospect. Bush stands for a bizarre invasive, big spending big-government "FDR Republicanlism" that is utterly incompatible with what I regard as the basic tenets of Republicanism, but more pertinently, is broadly incompatible with the original understanding of the constitution. All we can do, I think, is to hold on in the GOP, keeping in mind that he's gone in four years, and try to draw the poison from the wound after he leaves. I have a draft text of a proposed 28th amendment that would repeal the 17th amendment and impose term limits on Congress that would probably be a next step after that.
In the meantime, though, I think conservative non-originalist judges will tend to do less damage in the long run than liberal non-originalist judges, and so this stops somewhere short of being a nightmare scenario.
Writing skill is important but ti is certainly not dispositive
I think that given the political realities (and they are realities), President Bush will have to appoint a woman and/or Hispanic unless he wants to go for broke and nominate an Asian. If he can find someone who is all three maybe he can run the table
I just hope that she is neither a harvard alum nor a federal appellate judge; diversity matters, after all
I'm not sure what century you mean, but either way, you've got to be kidding.
Err, and John Roberts is an originalist since when?
In other words, Challenge says Bush is a liar, and I say Bush knows absolutely nothing about Scalia's and Thomas' jurisprudence. Not mutually exclusive propositions. ;)
Nick
Point being, these labels are ridiculous -- Vincente Fox is just as much a white male as John Roberts. But if we have to play along with these labels we might as well get the best, which would be Boggs.