Would Obama Nominate A Breyer or a Brennan?:
Yesterday's New York Times editorial page made the following prediction about a future Supreme Court pick from Barack Obama:
Further, today's liberal Justices were either Republican nominees who ended up more liberal than was expected or Democratic nominees who were compromise nominees picked by a weak President who needed to ensure Senate confirmation. If Obama is elected, he will not be a Republican, and he seems unlikely to need to nominate a compromise nominee. If he is elected, Obama will likely have a strongly Democratic senate, and he probably won't need to worry about Senate confirmation in the same way that Bill Clinton did by the time he picked Ginsburg and Breyer.
Finally, it's important to note that the two Justices most likely to retire in an Obama Administration are the two Justices who are arguably the two most liberal Justices, Ginsburg and Stevens. Because the center of the Court defines its tone, a Ginsburg or Stevens retirement will set up a short-term impact for retirement that would pressure Obama to nominate an "all out" liberal. The dynamic is this: Replacing a Ginsburg or a Stevens with a moderate would risk moving the Court to the right in some cases, while replacing either of them with an "all out" liberal wouldn't move the center of the Court at all (at least in the short term). Would Obama supporters be satisfied with an Obama Supreme Court pick that moved the Supreme Court to the right? Would the New York Times editorial page? In both cases, I tend to think the answer is "no."
As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.That seems very unlikely to me for several reasons. The first reason is that when Emily Bazelon asked Obama's advisors this precise question a few months ago, they apparently rejected that strategy:
I wondered if Obama might favor moderate judges over strongly liberal ones—a translation to the bench of his calls for unity and bipartisanship, in other words. But [Obama advisors] Minow and Tribe rejected that. And Sunstein himself has written that given the roaring conservative voices currently on the court and its shift to the right, minimalism isn't necessarily the best posture for the next justice. "I clerked for Justice Marshall, and while I don't agree with him on everything by any means, there is an argument that the court would benefit from someone with a vision of equality and liberty," Sunstein said. "That is clearly absent." On Obama's staff, that absence is also keenly felt.This attitude shouldn't surprise anyone: My sense is that the Obama supporters who follow the courts see center-liberals such as Breyer as far from ideal. In the academy, for example, the model Supreme Court Justice remains William Brennan. Brennan is widely considered a real judicial hero, treasured for his willingness to swing for the fences and his ability to squeeze out five votes when needed. Brennan was a true role model; in contrast, Breyer is seen as more of a technocrat. Why pick someone like the latter over someone like the former?
Further, today's liberal Justices were either Republican nominees who ended up more liberal than was expected or Democratic nominees who were compromise nominees picked by a weak President who needed to ensure Senate confirmation. If Obama is elected, he will not be a Republican, and he seems unlikely to need to nominate a compromise nominee. If he is elected, Obama will likely have a strongly Democratic senate, and he probably won't need to worry about Senate confirmation in the same way that Bill Clinton did by the time he picked Ginsburg and Breyer.
Finally, it's important to note that the two Justices most likely to retire in an Obama Administration are the two Justices who are arguably the two most liberal Justices, Ginsburg and Stevens. Because the center of the Court defines its tone, a Ginsburg or Stevens retirement will set up a short-term impact for retirement that would pressure Obama to nominate an "all out" liberal. The dynamic is this: Replacing a Ginsburg or a Stevens with a moderate would risk moving the Court to the right in some cases, while replacing either of them with an "all out" liberal wouldn't move the center of the Court at all (at least in the short term). Would Obama supporters be satisfied with an Obama Supreme Court pick that moved the Supreme Court to the right? Would the New York Times editorial page? In both cases, I tend to think the answer is "no."
I think, in some sense, Scalia has already won the argument about the proper role of constitutional interpretation. It will take more than 1 or 2 appointments to get the milk back into the living-constitution jar.
I do not have any special insight into Sunstein's mind, but I have always had the feeling that his centrism was more of a product of his time at U of C than any real pull to the middle. It's one thing to recognize the fact that economics plays a role in our legal system. It's another to take that recognition and apply it to all lines of cases. One needn't be Richard Posner to recognize the power of economics over the law (not just $ -- the fact that all people seek to maximize wealth)
I have always felt that Sunstein on the Court would be different than Sunstein in the law review. I think he is a very productive academic who wanted to be taken seriously in his environment. That required mastering law and economics, and, at times, pointing out its flaws.
Anyone who tries to pretend otherwise is either deluding themselves or selling something.
Hard left? Really? Bernie Sanders, Barney Frank, and Ted Kennedy are the "hard left" of the US. You consider his background and legislative activity similar to theirs?
If Obama thought Roberts was too conservative to replace Rehnquist, the Republicans would have every right to block one of his nominees as too liberal.
From what I've read, Obama has been the farthest left of all the Senators, during his short term. Of course, you won't read about this in The New York Times. His legislative activity, such as killing the Illinios version of the born alive act, bears this out.
Obama has the knack to be very liberal (Noam Chomsky is hard left; neither Kennedy nor Obama qualify) and still play well with others.
Equality and liberty? As if. Try equality or liberty and you'll get a better handle on the divisions of the day, and, likely, in this country, of days to come.
The more interesting question is rather he'll nominate a liberal (even a radical one) or a leftist. There's more daylight there than between a liberal nominee and a Roberts.
"Sen. Barack Obama, D-Ill., was the most liberal senator in 2007, according to National Journal's 27th annual vote ratings. The insurgent presidential candidate shifted further to the left last year in the run-up to the primaries, after ranking as the 16th- and 10th-most-liberal during his first two years in the Senate."
That's quoted directly from the National Journal's 2007 vote ratings. I tend to think National Journal is fair and nonpartisan, but I admittedly have only limited experience with the journal.
In follow up to your question, do you find Justice Stevens to really be a hard-left liberal?
Is it always so clear what the "liberal" and "conservative" positions are?
1. Professor Kerr, how is it that Ginsburg and Breyer "were compromise nominees picked by a weak President who needed to ensure Senate confirmation"? Clinton had Democratic majorities in both houses of Congress when each was nominated. Granted, by the time Breyer came along, Clinton had made some gaffes that took some of the wind out of his executive sails (health care program; don't ask, don't tell compromise). But will the situation be any different for an Obama presidency?
Recall, too, that the Republicans took over in 1994 just a few months after Breyer was confirmed. From what I recall, the takeover wasn't really a reaction to judicial nominees -- but it's certainly a reminder that no matter how much Congress seems to be aligned with the president, that can change quickly. One wonders if an "extreme liberal" nominee might stir a similar counterreaction by Republicans on the congressional level, perhaps in conjunction with other acts of a solidly Democratic administration and Congress.
2. The first comment, by Loophole 1998, bears emphasizing. It's not just that the Court has become more conservative in terms of outcomes; the entire tenor of approaching the law has changed. If you put a Brennan- or Marshall-type figure on today's Court, would they be able to make the public case -- in their dissents, no doubt -- for the old, more freewheeling style of constitutional and statutory interpretation? Or will they seem like anachronisms and anomalies, particularly when they run into a Roberts/Alito/Scalia opinion that will likely be a powerhouse of textualism and other trends of the last 25 years?
The short question is, who could a President Obama nominate that would be an old-style liberal but have the intellectual heft to make a strong case for old-style liberal approaches to judging, so that said Justice doesn't just seem like an "anything goes" judge?
I believe this is an honor pretty reliably bestowed by National Journal on any Democratic senator nominated for President.
I think the better question is: what if one of the five most conservative members has to be replaced? I mean, two of them (Scalia and Kennedy) are getting up there, and another (Thomas) is as big as a house. Does a President Obama abide by what Democrats insisted throughout the Roberts/Alito confirmations -- that a president should nominate "similar" replacements, to preserve "balance"? Or are all bets off, because the shoe is on the other foot?
In other words, what if Justice Scalia's spot has to be replaced? If a Brennan-type liberal is nominated for that spot, is it all-out war?
I think you are right. I don't think it is clear at all. It is probably impossible to quantify exactly who the most liberal or conservative Congressmembers are. Here is a good example -- the Freddie Mac/Fannie Mae bailouts. This would probably be a "liberal" vote, but it appears that Congressmebers on both sides will favor the measure (if/when it comes to a vote).
However, the long term trends of, say, Ted Kennedy probably offer a strong indication of where he ranks with respect to other long term Senators.
In other words, I see what you are pointing out in your post, and I agree with you. I only posted the National Journal study as a "fyi"
Please prove this proposition. I know that Kerry was given the same label, but I don't recall any other example.
I think this probably says more about the Democratic nominating process than it does about the National Journal.
Orin, that's a pretty bold (and bald) assertion. On what are you basing that? I am "[i]n the academy," and relatively liberal politically, but I hardly consider Justice Brennan to have been a "model Supreme Court Justice." So do you have any empirical data for your claim?
Also, why do you pitch the choice as between a Justice Brennan and a Justice Breyer? The more apt analogy would be between a Justice Brennan and a Justice Ginsburg. My opinion of Justice Breyer stems not from his being insufficiently liberal but from his tendency to elevate pragmatism above principle. See, for example, his deciding vote in the Ten Commandments cases, where he decided that the Ten Commandments could be posted by a public entity on Mondays, Wednesdays, and alternate Fridays. Justice Ginsburg is a far better example of a moderate liberal -- one who generally espouses incrementalism, but in the pursuit of a consistent construction of the law, not in the pursuit of coming to a "fair" result.
So, the distinctions between Clinton 93-94 and Obama may not be all that meaningful. (That of course does not mean that Obama won't go far left with his picks).
I'm curious, if you think Brennan is not the role model for most legal academics, who do you think the role model is?
Ummm, wasn't the last sitting Senator nominated by Democrats before Kerry George McGovern?
Anyway, if Obama appoints a liberal the liberal must be one who believes it is not unconstitutional to execute a child rapist, as Obama thinks that case (kennedy v louisiana) was wrongly decided.
byomtov has it backward - the Presidential nomination is an honor bestowed by Democratic primary voters on whichever Senator has the cuurrent ranking as most liberal.
As for Steve Lubet's challenge, I'm not about to spend time looking up people's ages or arguing whether some law prof is prominent, but Sidney Thomas of the 9th Circuit (nicknamed Reinhardt Jr. by some court-watchers) sure appears to be under 60, and there's no reason to credit an assumption that sitting state supreme court judges or federal district judges (or even members of Congress) wouldn't be nominated - especially as any of them could be appointed to a federal circuit vacancy not long before a Supreme Court vacancy arose.
Nick
Must Obama appoint a Justice who agrees with him on every case? How can he know, given that the White House doesn't generally ask nominees how they would rule in particular cases?
Fair enough about the NYT making the Breyer/Brennan comparison. But that shows how much the Times oversimplifies things (with the exception of Linda Greenhouse, who pretty much got it).
I have been in the academy for a shorter period of time than you -- 7 of the last seventeen years -- but it's hard to recall a single professor ever extolling the virtues of Justice Brennan. Granted, my memory of law school is fading, but in the last four years, in which I've been teaching, I honestly don't recall anyone ever holding him up as the model.
I have no idea who "the role model for most legal academics" is because legal academics are not some monolithic bunch of loony liberals, as they are often parodied in the comments here. I think every legal academic would have his or her own unique answer to that. I'm partial to the second Justice Harlan myself. You?
In response to my challenge, Philistine said:
I agree. McGovern ran for president in 1972. The National Journal study is only 27 years old. Thus, McGovern would not apply to this study. As a result, I don't think that it is accurate to suggest that the National Journal study always labels democratic presidential candidates as the most liberal senator.
This is where I expect the real battle. Appointing Stephen Reinhardt or his equivalent to fill Stevens' spot wouldn't change the dynamics of the Court. A similar appointment to Kennedy's spot would shift the balance of the Court dramatically. I'd expect the politics to play out accordingly.
I hope you're right, but I don't find it very comforting that my hopes depend on someone backtracking from a publication record as extensive as Sunstein's.
Obama voted in 66 of the 99 votes used by the National Journal; he voted with Clinton 65 times, yet Clinton was ranked 16th by the National Journal.
See here
Neal Katyal is a strict constructionist who believes in vigorous law enforcment. It's just that he applies his principles to the executive branch (unlike some people we could name).
In a community of 75,000, 60,000 people turned out to see Sarah Palin this weekend. Obama's star has set. It's over.
Oh dear. Volokh readers, if you have access to law reviews, look up this piece by him:
What's Up is Down, What's Black is White, 44 Emory L.J. 827.
One of the weakest critiques of the Court's racial gerrymandering jurisprudence I've ever read (and I've read far too many).
The speaker? Antonin Scalia.
You'd think Scalia might have learned something from his own comments. He could be a much more influential justice if he werent so stuck on himself being right and most others wrong.
She attracted a huge, celebrity-like crowd, you say? Well, we might as well call off the election and move the McCudda admin in early!
Yes, Obama is "hard left"
How many of the folks you mention hang out with unrepentant terrorists?
Obama opposed a born alive infant protection act as well.
That is very far left.
Maybe, but fun to talk about.
I seriously doubt any of the conservative justices will retire over the next 4 years myself-barring some kind of major health issue.
I do think Ginsberg might possibly retire given her age and health issues-and the fact that there probably wouldn't be too much crying from the right if Obama replaces her, since whoever he picks is doubtful to change the bent of the court.
If a conservative justice retires it will probably be an uproar, and it will be interesting to see Obama's words used against him, but I doubt we would see the outright obstruction from the right, because I do think many senators on the right-McCain being one of them don't think ideology is a reason to oppose a justice. If the nominated justice is suitable then they should get their nomination approved. There will be a few who will in the end throw fits and probably vote "no" but I doubt the battle will look exactly like the lefts, when Bush was nominating justices.
But this is why I think the conservative justices will at least hold out through a four year term, because I strongly suspect that no matter who gets elected in '08 they are likely only going to serve one term, because they are going to inherit a mess they aren't going to be able to fix in four years.
Felix Frankfurter
Who fits that bill? Would Obama nominate Sunstein? Or Elena Kagan? Or perhaps Judge Wood or Judge Sotomayor? I'm curious as to whom you think would fall within that category.
This is all hypothetical of course, since Obama is going to lose, but it's fun to speculate....
I thought you guys thought that was unconstitutional.
With Obama though, I almost expect that due to his isolation with the rest of the country, he wouldn't realize that he was picking a left wing academic for the post, but rather would think her more centralist than most outside the liberal enclaves he frequents would.
Accordingly, they should filibuster any Obama nominee who is to the left of Kennedy.
I've blogged about this before.
That said, Democrats did not filibuster the Supreme Court nominations of either John Roberts or Samuel Alito, though many Democrats certainly voted against those two nominations.
As a result, Republican filibustering of a Supreme Court nominee (as opposed to voting against the nominee) would ratchet up the filibuster process--something I strenuously oppose and hope does not happen.
Yes, it is because of Obama's "isolation with [sic] the rest of the country" that he would win 273-265 if the election were held today. That guy is just so out of touch with the real America!
"You know, I think we consider Breyer too glibly in some respects. I think it's just as important to have a variety of legal theorists as it is to have a variety of legal ideologues on the Bench, and Breyer's vision of Active Liberty is something worth having inserted into a few opinions every now and then, just as Scalia's (ostensible) Originalism on the other side. Balance isn't simply maintained by monitoring a left-right axis."
As a non-lawyer, I'd second this motion. In fact, I'd like to see a non-lawyer of some sort, with a record of independent thought, and preferably younger than Roberts to give them time to learn on the job. I wouldn't mind if such a person would be considered radically "liberal" or "left", as they could just as well move in a different direction on the bench as Stevens and Warren did.
What about Steve Lubet?
Yeah, like Scalia's majority opinion in Heller.
Breyer was confirmed by only 87 to 9 (I don't know why there was more opposition) but that was still an overwhelming margin. One supposes Clinton might have found more liberal nominees, but his selection process is AFAIK obscure - no one involved has discussed the details in public.
If Obama wins, any SCotUS nominees will be as far left as can be plausible - and certainly no one who is not lockstep politically reliable for the Democrats. There may be some effort to find a "stealth candidate" without an obvious record of outrageous rulings - or someone for whom a favorable race/gender/ethnicity narrative can be generated. If Republicans try to raise a fuss, they can be suppressed, unless they have a majority of the Senate. (Filibusters are by courtesy of the majority.)
Interesting and thoughtful post to which I don't have much to add, but one clause did stick out
It seems born of a rather pedantic desire for formal parallelism. Unless you think Obama will switch parties if he loses? :-p
Didn't know that might come before the Court. Fascinating case.
Well at least she didn't help found the ACLU like Felix Frankfurter did. And everyone knows what a bleeding heart liberal judicial activist he was once he joined the Court.