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Ed Prado For the Supreme Court?:
With the news that Justice Souter is retiring, and with thoughts turning to his possible successor, I'm reminded of the "independent grassroots campaign" -- headed by a group of liberal activists -- that received some attention in 2005 to urge the President to nominate Fifth Circuit Judge Ed Prado for the Supreme Court.

  I admit I was dubious about the effort back in 2005. But I've been thinking about it a lot in last 4 years -- or at least in the last 4 minutes, since learning that Souter is going to retire -- and I think it's high time to take that campaign seriously.

  You may recall that this group made its compelling case as follows:
A Supreme Court Justice for All Americans

Imagine a Supreme Court nominee with a mainstream approach to the law who has earned the respect of both Republicans and Democrats. Imagine a nominee for the Supreme Court of unquestioned stature with decades of judicial experience.
Stop imagining. . . Meet Judge Ed Prado.

. . . Judge Prado has earned bi-partisan support as an extremely intelligent, moderate, fair-minded jurist in his 20 years on the federal bench.

Advise President Bush and your Senators to put an experienced moderate on the Supreme Court. Send them a message TODAY!
  Now, I realize that some people figured that the DraftPrado movement was a cynical effort by liberal activists who actually didn't want a moderate. The cynics will say that Prado was the most liberal person with some GOP connections that the "grassroots" organizers could find, and they wanted to make Bush's actual nominees seem more conservative by comparison to lessen their chances of confirmation.

  But zoiks, people, do we really need to be so cynical about Supreme Court comfirmation battles? For shame, for shame. I think we should take these grassroots activists at their word. Indeed, I can only assume that whatever anyone said about the Supreme Court vacancies in 2005 will be exactly their position in 2009. Given that, there is obviously a significant grassroots movement to get Ed Prado on the Supreme Court, and I hope Barack Obama is listening to the movement. Stop imagining . . . Meet Judge Ed Prado.
mistermark:
Impressive guy, particularly considering there's already a museum named after him in Spain. I'm still holding out for the day we hear of Mr. Justice Orin Kerr, though.
5.1.2009 12:33am
Kazinski:
Yeah, like they think the best the could ever dream of getting under Bush is even close to what they expect from Obama.

Nobody to the right of Marx should even apply. They'll be pushing for somebody left of Trotsky.
5.1.2009 12:33am
Jon Roland (mail) (www):
While we are suggesting replacements, let's make a list of likely contenders:

Academics:
Akhil Reed Amar
Randy Barnett
Erwin Chemerinsky
Alan M. Dershowitz
Richard Epstein
Lawrence Lessig
Lawrence Solum
Cass R. Sunstein
Lawrence H. Tribe
Eugene Volokh

Judges
Frank Easterbrook
Alex Kozinski
Richard Posner

Perhaps unlikely Obama nominees, but it doesn't hurt to amuse ourselves with our favorites. Mine is Randy Barnett.
5.1.2009 12:44am
Volokh Groupie:
Golfclap



We should just hyperlink this post whenever the inevitable charges of hypocrisy come up during this nomination (on both sides)
5.1.2009 12:46am
Jacob Berlove:
I guess Leahy and Specter? and of course Schumer will suddenly discover how important it is for nominees not to answer questions that could hint or forecast their votes and Specter Hatch et al. will suddenly discover the vital role the Senate has in closely questioning nominees and insisting on meaningful answers to make sure the judge is not "too" out of touch with the "mainstream". Of course this time there will be no point for the Republicans accepting their bluff on the filibuster.
5.1.2009 12:55am
OrinKerr:
Jon, why not nominate yourself?
5.1.2009 12:58am
Jacob Berlove:
Oh, and let me add a fair nominee while we're at it. How about the 9th circuit's Judge Gould. A pro second amendment Clinton appointee. This would give Obama a chance to prove he was serious when he claimed to support the result in Heller.
5.1.2009 12:59am
Jacob Berlove:
Since a commenter on that thread stated that Gould is in ill health, I now suggest Russ Feingold. Remember that he was the one who with great concern asked Chief Justice nominee John Roberts if he supports second amendment rights, explaining that he (Sen. Feingold) thinks that they're very important.
5.1.2009 1:01am
Jason F:
I'm hoping he nominates David Strauss, mostly because when I was at U of C and I had a choice between taking Professor Obama or Professor Strauss for Con Law, I chose Professor Strauss, thereby unknowingly depriving myself of a lifetime of cocktail party chatter. Putting Strauss on the Supreme Court would mostly cure that problem -- having taken a law school class from a future Supreme Court justice is not quite as cool as having taken one from a future President, but it's close.

(And leaving aside my own petty interests, Prof. Strauss seems like a solid choice if President Obama is willing to nominate someone without experience on the bench)
5.1.2009 1:01am
Volokh Groupie:
Russ Feingold would be awesome, but I fear he has too few x chromosomes to warrant serious consideration.
5.1.2009 1:05am
bbjones:
mistermark: museum-shmeum! he's got a dam! Would that make him the Dam Justice?
5.1.2009 1:26am
Jon Roland (mail) (www):
OrinKerr:

Jon, why not nominate yourself?

Why don't you? :)

If Michael Badnarik, the presidential nominee of the Libertarian Party, had, by some miracle, won in 2004, I'd likely be on the SC today, assuming the LP also won all the Senate seats in contention that year.

Seriously, if that had happened I would suggest he nominate guys like Barnett, Solum, Epstein, and a few others I have listed here.

Imagine the posts and comments on this forum if I were on the Court. :)

Now imagine me with four others who tend to agree with me. (Yes, such people exist.)
5.1.2009 2:03am
Jon Roland (mail) (www):
I should add, and if the LP won all the Senate seats in contention in 2006. He would have needed that to get any libertarian on the Court.
5.1.2009 2:14am
Dennis Nicholls (mail):
Didn't Obama study con law under Larry Tribe? Wouldn't that be as important an "insider connection" as being at U. Chicago?
5.1.2009 2:44am
Mike G in Corvallis (mail):
Alas, no Volokh Conspirator will ever be nominated to the Supreme Court, no matter how well-qualified, deserving, or needed that person might be.

You all have made a fatal mistake: leaving an extensive "paper" trail of what you really think! You aren't ciphers! It'll be trivial to Bork any of you on any issue!
5.1.2009 4:02am
Angus:
Poor Ed Prado. At nearly 62 years of age, he's just too damned old. Both parties now have an interest in nominating very young people who could conceivably sit on the court for 25-30 years rather than a more "experienced" judge for 10 years.
5.1.2009 5:30am
Oren:

Both parties now have an interest in nominating very young people who could conceivably sit on the court for 25-30 years rather than a more "experienced" judge for 10 years.

Dang Souter retiring before he's entirely decrepit!
5.1.2009 7:15am
J. Aldridge:
Jon, problem I would have with academics is they tend to tow the same broken line and afraid to reveal truth's because it might upset some precedent.

BTW, Tribe is a flip-flopper.
5.1.2009 7:27am
Anderson (mail):
Yeah, like they think the best the could ever dream of getting under Bush is even close to what they expect from Obama.

Well, let me take the rare opportunity to agree w/ Kazinski.

OF COURSE a tactical effort to secure the best possible justice under Bush, is going to come up with different names than will be heard now Obama is president.

It's not hypocrisy; it's the art of the possible, a/k/a "politics."
5.1.2009 7:56am
Oren:
Incidentally, where on the ideological spectrum is the Clinton appointee with the most conservative cred? David Tatel (author of the infamous "mosaic theory" FOIA rejection criterion)?
5.1.2009 8:15am
Daniel Chapman (mail):
Can someone please explain how Feingold's name is being tossed around? Did you just throw a dart at a list of all (D) senators as a joke or is that seriously being considered by someone?
5.1.2009 9:33am
Tracy Johnson (www):
If EUGENE were nominated, we'd then know the current administration is reading this blog!
5.1.2009 9:35am
Tim H. (mail):
haha....conservatives are funny

anyways...i don't think obama will be any more "liberal" in his appointments than clinton...

so souter leaving should end up being a wash...though one never knows how people will change once they get on the bench
5.1.2009 9:43am
KenB (mail):
I appeared in front of Judge Prado when he was on the district court bench. He is an earnest and fair minded judge. If only . . .
5.1.2009 9:46am
Dennis Nicholls (mail):
AP is now reporting this "short list". Beats me how they derived the list.

-- Judge Margaret McKeown of the Ninth Circuit
-- Judge Johnnie Rawlinson of the Ninth Circuit
-- Judge Kim McLane Wardlaw of the Ninth Circuit
-- Kathleen Sullivan, former dean of Stanford Law School
-- Pam Karlan, Stanford law professor
-- Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois.
-- Judge Merrick Garland of the DC Circuit
-- Massachusetts Gov. Deval Patrick
5.1.2009 10:20am
Uh_Clem (mail):
If there really was a "significant" grass roots movement to draft Prado I think I probably would have heard of it. Like most astroturf attempts, this one went nowhere.

That said, if you can find some quotes from anybody who actually matters supporting the Draft Prado movement you are certainly welcome to re-publish them and hold them to it.
5.1.2009 10:21am
anon45689:
Awfully convenient Orin. Be dubious/skeptical of the moderate when Bush is in office and push the moderate when Obama is in office. Nice try.
5.1.2009 10:26am
Gray Ghost:
If Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois is truly on the short list then I am appalled.

He gave the commencement speech at my law school (Northwestern) graduation in 1994. I have never in my life heard a worse speech. The phrases "self centered" and "egotistical" don't even come close to describing it. It was tone deaf, inappropriate, pointless, and completely out of touch with the reason for the event. If the speech is any indication of the man's ability to reason logically, clearly express his thoughts, and persuade others (and I can't think that the speech is completely unrelated to those abilities) then he shouldn't even be a lawyer, much less a Federal judge. Several of us walked out during the speech, not because we didn't agree with the content (it was all about Judge Castillo, no political content that I can recall) but because listening to someone telling you all about himself for 30 minutes was so extremely painful.

GG
5.1.2009 11:02am
Jon Roland (mail) (www):
Mike G in Corvallis:

Alas, no Volokh Conspirator will ever be nominated to the Supreme Court, no matter how well-qualified, deserving, or needed that person might be.

You all have made a fatal mistake: leaving an extensive "paper" trail of what you really think! You aren't ciphers! It'll be trivial to Bork any of you on any issue!

Only those dumb enough to go by their real names. :)
5.1.2009 12:31pm
Anderson (mail):
If Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois

When is the last time a district court judge was nominated for the Supreme Court?
5.1.2009 12:32pm
Bob from Ohio (mail):
Unless Prado has a sex change operation, he ain't going to make it.

Aren't the odds very, very high that it will be a woman? Ginsburg has been complaining about being the only one for a while now.
5.1.2009 12:46pm
Dave N (mail):
Anderson,

You have to go back to O'Connor and, before that, Rehnquist (as Associate Justice) for the last time a Supreme Court Justice came from anywhere than the the United States Court of Appeals.
5.1.2009 12:51pm
Oren:

Ginsburg has been complaining about being the only one for a while now.

2 vacancies is "a while"?
5.1.2009 1:43pm
Bob from Ohio (mail):

2 vacancies is "a while"?


USA Today in January 2007 had an article where she said she was "lonely" with O'Connnor.

So, yeah, at least 2 1/4 years is "a while".
5.1.2009 3:12pm
Tracy Johnson (www):
Is it really a complaint or mere statement of fact? A fact the media spins into a complaint and becomes a cause celebre?
5.1.2009 3:14pm
NickM (mail) (www):
IMO Sullivan is out because she failed the CA bar. There are way too many problems explaining that one to the public.

Nick
5.1.2009 3:56pm

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