Goldstein on the Democratic Short List:
Over at SCOTUSblog, Tommy Goldstein speculates about who might be nominated for the next Supreme Court spot if a Democrat wins the White House in 2008. It's all speculation, of course, but it's interesting speculation.
UPDATE: I noticed that Judge Diane P. Wood of the 7th Circuit is in Tommy's full chart of possibilities, but not on his list of likely picks. Although Judge Wood is slightly older than some of the others (born in 1950, so she would be 59 in 2009), I wouldn't be surprised if she ends up at the top of Democratic short lists. From what I know she is an excellent judge, and her sterling credentials and experience on the Seventh Circuit would probably help a great deal in the confirmation process.
ANOTHER UPDATE: Commenter "Actuarial Advantage" raises an excellent point: Given that women live on average 5 years longer than men, a President probably has more flexibility on the age of a female SCOTUS nominee than a male SCOTUS nominee.
UPDATE: I noticed that Judge Diane P. Wood of the 7th Circuit is in Tommy's full chart of possibilities, but not on his list of likely picks. Although Judge Wood is slightly older than some of the others (born in 1950, so she would be 59 in 2009), I wouldn't be surprised if she ends up at the top of Democratic short lists. From what I know she is an excellent judge, and her sterling credentials and experience on the Seventh Circuit would probably help a great deal in the confirmation process.
ANOTHER UPDATE: Commenter "Actuarial Advantage" raises an excellent point: Given that women live on average 5 years longer than men, a President probably has more flexibility on the age of a female SCOTUS nominee than a male SCOTUS nominee.
That is not to say that the list is lightweight, as for instance Deans Koh, Kagan and Sullivan are certainly top-notch, but it strikes me that it just doesn't measure up to the GOP list of 2000.
That is not to say that the list is lightweight, as for instance Deans Koh, Kagan and Sullivan are certainly top-notch, but it strikes me that it just doesn't measure up to the GOP list of 2000.
Also, Wardlaw?!??? I am still laughing at that one.
Tom's analysis of Republican nominees has been spot-on but he doesn't have a leg to stand on here -- perhaps he is unfamiliar with the 9th Circuit being that he is from the east and clerked there.
Also, Wardlaw?!??? I am still laughing at that one.
Tom's analysis of Republican nominees has been spot-on but he doesn't have a leg to stand on here -- perhaps he is unfamiliar with the 9th Circuit being that he is from the east and clerked there.
I can't speak of the lists in prior years, because really 2000 was teh first time I really started to grasp the issues (First time I was eligible to vote as a newly minted citizen was in 96). But I would think that with the Court really being in balance, a better list could be compiled.
I wonder if it might have something to do with the fact that Clinton (1) had a Republican Senate for most of his tenure, and (2) wasn't interested in pushing the envelope on the judiciary by nominating people who were in their 30s and who had well developed liberal views of the law.
Clinton did nominate several brilliant court of appeals judges. Pierre Leval, Diane Wood, Marsha Berzon, Jose Cabranes, Guido Calabresi, William Fletcher, Sandra Lynch, Karen Nelson Moore, William Bryson, David Tatel, Sidney Thomas, Merrick Garland, and Diane Motz are all extremely sharp intellects. Some of the heaviest hitters on the list, though, weren't nominated for their actuarial qualifications (Calabresi and Leval turned 62 and 57, respectively, in the years they were nominated), and others weren't even nominated for their politics.
There are also at least handful of district judges who'd fit the bill.
1. Not to be impolitic, but Goldstein's list (especially his first list) expressly takes into account demographic concerns, which -- especially concerning gender and ethnicity -- are traditionally closer to a Democratic's heart than a Republican's. When you include additional conditions on a nominee's background, you're necessarily going to narrow the list. I mean, it's a crime that a judge like Merrick Garland is too "white and male" to receive serious consideration for the first seat that's open, even though he is by far one of the judicial powerhouses of today's left. I'm sure Judges Rawlinson and Wardlaw are fine judges, but they are just not even in the same ballpark as Garland (or David Tatel, who I don't think is "too old," as Tommy G. thinks). Republicans simply don't place as much emphasis on minority representation, and that's why they are more comfortable nominating people like Roberts and then Alito, whose academic, judicial, and professional qualifications were essentially impeccable. (And when the Republicans -- rather, President Bush -- tried to make a demographic pick, they came up with the woefully unqualified Harriet Miers.)
2. Conservatives have spent the last 25 years developing a consistent and robust (more or less) approach to the law that is grounded in some basic doctrines. It stretches back to the founding of the Federalist Society, the Meese Justice Department, and the rise of judges like Scalia, Silberman, Easterbrook, Kozinski, Luttig, Wilkinson, and so forth. All of today's conservative "heavy hitters" come out of that tradition. There's really no comparable tradition for liberals -- that was what the conservative movement was acting *against*, and the liberals never really found anything to match it (and really still haven't; ACS is a fine organization, but it hasn't really come up with academic or doctrinal underpinnings to gird liberal decisionmaking, which still tends to view everything through a results-oriented lens).
3. The liberal "heavy hitters" are, these days, individuals whose views are pretty far out of the mainstream of the law. Most of them are academics, where they can safely expound theories that are more and more detached from the practice of law and general public acceptance. If you've ever read any of Harold Koh's stuff, for example, you'll know that if it were actually explained to senators or the American public, it would be greeted with extraordinary skepticism, if not outright hostility (even by most Democrats).
Obviously, the first sentence should have read "I think there will be great pressure for the next President. . ." not "the next Justice. . ."
"
Of course, if a Republican wins in '08 and gets to appoint a Supreme, that nominee will have a 100% chance of being a woman and a 50% chance of being a Hispanic. A Republican nominee would have a higher chance of being either a non-Hispanic white or black woman than a Democratic nominee.
I think we all know that, for the next Supreme Court seat, men need not apply.
Aren't the Wardlaws good friends of the Clintons? I vaguely recall that, although I don't know for sure.
Quick question:
I agree with you. However, when you write, "After all, were many people touting the candidacy of John Roberts when he was still at Hogan?," the answer is "yes."
Interesting. I actually haven't been following this issue closely for very long. Now that you mention it, though, I recall that Miguel Estrada was likewise tabbed by some as a good candidate to move from private practice to the Supreme Court, with a pitstop on the Court of Appeals along the way (which plan the Democrats were aware of and decided to scupper at step one rather than step two).
I realize that it's a slightly different topic, but do you have any thoughts on who some comparable liberals might be? That is, candidates who probably wouldn't be nominated to SCOTUS directly from their current positions, but who could be nominated for a short stay on the Court of Appeals en route to the Supreme Court?
Yes. The Wardlaws are good friends with the Clintons. In fact, I believe Bill Wardlaw played some role in President Clinton's two presidential campaigns.
I really don't know whether women in general are less interested in being carried out of their jobs in a body bag than men, but that is my uninformed and less than anecdotal impression. If true, I think it is at least partly related to women being more likely to have spouses older than they are, and wanting to spend some amount of retirement together before death does them part.
Is there data on average retirement ages for judges at levels below SCOTUS?
I don't really know who the stars are on the left who would fit the bill. Roberts was a bit of a special case: he was such a star from such an early age that he really stood out from the pack. On the left, though, there are lots of top lawyers and academics to choose from.
According to the site, 17 women have retired because of "death," and 7 women have retired because of "resignation."
The reason the data set is so small, I think, is because most of the women who have ever been appointed to judgeships were appointed within the last 30 years and are still on the bench. JFK appointed one female federal judge, LBJ appointed 3, Nixon 1, Ford 1, Carter 40, Reagan 29, Bush I 36, Clinton 104, and Bush II 60 (there are some duplicates, as there are judges like Barry who get appointed to the District bench by 1 judge and to the COA bench by another).
Another problem is that it's much more commonplace in the lower courts for a judge to take senior status once s/he becomes eligible (age + years of service >= 80). So, most people do that and die as senior judges rather than having to make the choice between (1) full active service until death and (2) full retirement.
It's kind of interesting how limited the pool becomes if you assume that the president will name a sitting judge, and then you add demographic considerations.
Right now, there are 28 sitting female judges on the courts of appeals nominated by Democrats, and an additional 100 on the district bench. (including those on senior status)
There are 8 sitting Hispanic judges on the courts of appeals nominated by Democrats, and only an additional 20 on the district bench (again, including senior status).
For African-Americans, the numbers are 13 and 76.
The pool gets even smaller when you factor age.
And this is all before one begins to think about things like merit---not all judges are created equal
The biggest difference between men and women in life expectancy is that men are much, much more likely to die before the age of 20 than are women. It tends to skew the data.
In other words, Presidents might not be thinking in terms of putting someone on the Court who can remain there for twenty-five years (assuming the expected life expectancy of male to be seventy-five). If that were the case, then yes, it would very much matter that a woman on average lives to celebrate her eightieth birthday (I'm guessing about the ages, by the way, but they suffice for purposes of illustration). But if Presidents are gunning for the youngest confirmable person, then expected retirement/death age is irrelevant.
It seems to me that it would be hard for a Democrat to nominate an academic, after such a long string of judges. It would be so easily demagogued.
Rehnquist. He was Asst. AG.
Of course, but we all repressed that ugly memory.
Yup.
Actually, by age 60 it's closer to four years. And I don't know Judge Wood's birthday, but if it's between May and July, that could narrow the gap by another six months.