Over at SCOTUSblog, Tommy Goldstein follows up his post on the Democratic short-list with a new post on a Republican short-list. Once again it’s all speculation, but it’s interesting speculation. A few comments:
First, assuming the President replaces a retiring Justice who is a white male, I don’t think a future GOP President is likely to see the race and gender of a nominee as being as important as Tommy thinks. It would be a significant thumb on the scale, but not the end-all-be-all. Why? Well, consider the failed nomination of Harriett Miers. Bush didn’t get a lot of credit from either side for nominating a woman to fill O’Connor’s slot. On the other hand, Bush’s picks of Roberts and Alito remain two of his most popular decisions among Republicans (if not the two most popular decisions — heck, if not the only two popular decisions). I think that’s probably a reflection of how these things will shake out for future GOP picks.
Second, it’s hard to come up with new names for a GOP pick because we’ve been through the basic list twice in the last two years for the Rehnquist and O’Connor vacancies. If I had to put together my own list, however, I would probably focus on some of the young conservative lower-court Bush appointees. In addition to Michael McConnell of the Tenth Circuit, always a VC favorite, I would keep an eye out for folks like Steven Colloton of the Eighth Circuit, Wiliam Pryor of the Eleventh Circuit, and Paul Cassell of the U.S. District Court for the District of Utah.
Third, I agree with Tommy that Paul Clement will have a very good chance of being on a short list some day. He’s a star.
Finally, one obvious variable in this discussion is how much pressure a future GOP President would feel to nominate a moderate and avoid a difficult confirmation battle. I think there would be less pressure than Goldstein seems to think. The key is that for the foreseeable future, every confirmation of a GOP nominee is going to be a difficult confirmation. If a straight arrow like Sam Alito draws a 58-42 vote in a Republican-controlled Senate, then the era of 99-0 Senate votes — and the boosts from an easily-confirmed pick that go with them — is probably over. Given the importance of judges to the GOP base, I think a future GOP President still would have a significant incentive to nominate a relatively conservative candidate rather than a moderate.
That’s my guess, at least. What are your thoughts?