Follow-Up to the Democratic (Not So) Short List

My post on potential Democratic Supreme Court nominees generated a variety of email responses, as well as interesting posts and reader commentary. See for example the responses and comments at Above the Law, Althouse, The New York Times Opinionator (Times Select req’d), Michelle Malkin, Free Republic, The Moderate Voice, Colorado Confidential, and Opinio Juris.

The thing I found most interesting was that – though the post dealt with Democratic nominees – the commentary was almost uniformly from the conservative blogosphere. There was nothing from sites on the left like Daily Kos, Talkingpointsmemo, and Balkinization. My point isn’t that the post was particularly insightful, but instead that interest in the subject of judicial nominees seems focused on the ideological right. No doubt there is something of an echo-chamber effect. The kind notes by Orin on Volokh and my law partner Paul Mirengoff on Powerline were likely noticed by the authors of other conservative sites. But the one-sided response to the post reinforces the commonly held view that conservatives recognize the importance of judicial nominations much more than do liberals.

With respect to the substantive reactions to the lists of potential nominees, I discounted a lot of the reactions but found the following comments most interesting and/or credible.

1. Three women received very favorable commentary as potential nominees, in the following order: (i) Diane Wood (an overwhelming response); (ii) Sonia Sotomayor; and (iii) Elena Kagan. No doubt, the great respect Dean Kagan gained for her conservative appointments at Harvard played a role here. She also has the benefit of being substantially younger than the other two.

2. The consensus view was that Judge Rawlinson is too conservative to be appointed by a Democratic President.

3. My prediction of an appointment of Kim Wardlaw met repeated skepticism on the ground that her initial appointment was rooted in politics rather than her qualifications. But I found it notable that these comments were not directed at criticizing her performance as a sitting judge. Several comments noted a point that was central to my prediction (particularly vis-à-vis Judge Sotomayor): Judge Wardlaw’s relationship to the Clintons.

4. There was a repeated view (not surprising from conservative sites, but not entirely meritless) that the left lacks great “heavy hitting” intellects comparable to, for example, Posner, Kozinski, etc. One name that came up repeatedly as a counterexample is Pam Karlan. Another was Cass Sunstein.

5. Among the male nominees, Merrick Garland received the most respect, by far.

6. There remains overwhelming skepticism that Justice Souter will retire. I stand by this prediction.

Given those reactions, I am revising my short list of potential appointments for the first seat to: Kagan, Sears, Sotomayor, Wardlaw, and Wood. The additional names for later seats are: Granholm, Garland, Jordan (assuming an immediate elevation to the Eleventh Circuit), Patrick, and Salazar.

As for the particular predictions (which truly are wildly speculative), here is my thinking. A Democrat will want to correct the gender imbalance on the Court immediately. There is no reason to defer a Hispanic appointment with two highly qualified Hispanic women available. So the first seat will go to Sotomayor (to whom I now lean) or Wardlaw.

The second seat will go to a recognized intellectual heavyweight. That means Garland, Kagan, Sullivan, or Wood. Kagan gets the nod from me because she is the youngest (by five to ten years) and helps the gender balance of the Court.

For the third seat, I believe a Democratic President will prefer to expand the Court’s racial diversity by appointing an African American. My full list has twelve candidates. (In my original post, I predicted Deval Patrick because he is known to the Clintons and has political experience.) Because this appointment would come at least two years into a Democratic Administration, I’ll pick Teresa Roseborough, who could be appointed in the meantime to the D.C. Circuit, Second Circuit (where she works), or Eleventh Circuit (where she lives). (Walter Dellinger advocated appointing her to the Eleventh Circuit towards the end of the Clinton Administration.)

Interestingly, this would mean three consecutive appointments of women.



13 Comments »



  1. I think you have accurately identified the short list. As to who gets appointed, alot will depend on the makeup of the Senate when the vacancy occurs. For instance, if the GOP controls the Senate, then someone like Salazar or Rawlinson are appealing prospects.

    As for Souter, he is relatively young (for the Supreme Court), seems to be in good health, has no familial responsibilities and doesn’t seem to have many interests outside the court. So I don’t understand why he would leave, certainly during Hillary’s first term?

    Comment by Kenneth Williams — July 14, 2007 @ 7:28 pm

  2. A Democrat will want to correct the gender imbalance on the Court immediately.

    What is the correct number of women for the court to be “in balance” gender-wise, Tom, and what is the distinctly male or female perspective on legal questions that demands such a balance? Unless there really is such a gender-specific perspective, I see no reason why we couldn’t have an all-female bench, an all-male bench, or anything in between. The court isn’t a democratic institution, and I see no reason why appointments to it ought to be structured to make it look more like the demographics of society at large. And as I said in the comment linked above, I think this “diversity” goal is not only unsupported by reasoning, but is thinly-supported by its proponents, whom (one suspects) would rather have nine Larry Tribes than three Clarence Thomases, four Diane Sykes, a Miguel Estrada and an Antonin Scalia.

    Comment by Simon Dodd — July 14, 2007 @ 8:07 pm

  3. Of course there is a gender-specific perspective. And there is an over-privileged technocratic WASP specific perspective too. Personally, I want to see a Justice or two that is more populist than calculating. I suspect the whole “dual consciousness of subjugated people” thing would serve that end, so I’d put odds on a woman or racial minority over an old white guy. If it makes people feel better for me to call my raw preference “diversity” related, sure… of course… whatever sustains your individualism.

    Or to put it another way, it freaks me out when self-respecting lawyers can’t see the reason for the Court to at least play at caring for democratic legitimacy. Too much Plato, not enough Kerouac in your diet.

    Comment by Corey Johanningmeier — July 15, 2007 @ 5:37 am

  4. “interest in the subject of judicial nominees seems focused on the ideological right.”

    Yeah, and there are a whole lot more fans in Fenway and Yankee Stadium than in Tampa Bay or Baltimore. The possibility of occasionally winning seems to be key — both in baseball and the only slightly less slow sport of court-watching

    What would you expect after this term of endless disconcerting defeats at the Court, progressives sit around and imagine dream teams… “once we appoint Karlan, watch out Scalia! ooooh, that will be so awesome!” Maybe that’s what the upcoming ACS convention will be like, I hope not.

    When I am daydreaming, I imagine progressives getting fed up with appeals to (as Simon says) a non-democratic and (as I say) completely captured federal judiciary. I imagine them getting up out of their seats, going outside, looking around, and figuring out how to re-desegregate the schools and unionize the Walmarts the old-school way. The judiciary was captured 100 years ago too, Lochner… etc… and people didn’t just bide their time waiting for their turn to nominate. They got angry and had general strikes. Now that would be interesting!

    Comment by Corey Johanningmeier — July 15, 2007 @ 6:02 am

  5. How Tom expects to get two black, female, liberal judges (one twice), through Georgia’s two troglodyte Republican senators remains to be seen.

    Comment by Roger Friedman — July 15, 2007 @ 11:56 am

  6. Corey:

    Of course there is a gender-specific perspective.

    Silly me! What’s the distinctly female (or distinctly male, for that matter) perspective on whether the court ought to overrule Dr. Miles and apply the rule of reason to vertical price restraints?

    Of course, I didn’t ask whether there’s a distinctly female perspective as a general sociological statement about human beings, I asked specifically about such a perspective in relation to legal questions. I’m sure we could dig out any number of cases where SOC and RGB were on opposite sides of cases, and hundreds of examples if you expand the search to lower court decisions where two female judges came out on opposite sides of the case. And of course, if there really is a gender-specific view of the law, why aren’t all single-gender panels unanimous? It seems to me that there really isn’t a gender-specific viewpoint that affects the way you’re going to contrue law, unless you either have a fairly low opinion of the intellectual independence of women or assume that the role of the judge is to make decisions based on some extralegal source that a distinctly female perspective does exist in. So I submit that if your gender really does change the way you’re generally deciding cases, you’re probably doing it wrong.

    Comment by Simon Dodd — July 15, 2007 @ 3:05 pm

  7. On Saturday, Jack Balkin took up Tom’s invitation to respond: Here’s the link.

    Comment by Peter G — July 15, 2007 @ 3:11 pm

  8. I know you stand by your Souter prediction, but I still don’t think he will be the first to leave. My feeling is that, even if he is unhappy at the Court (which no one has confirmed to me), he will defer to the other Justices such as Stevens and/or Ginsburg if they wish to leave at the same time so as to avoid two simultaneous vacancies (e.g., O’Connor and Rehnquist). Thus, I think the earliest he would leave would be 2010, and he could even be a candidate for a second Term exit as I suggested earlier. However, this is just rank speculation on my part.

    Comment by David Stras — July 15, 2007 @ 3:41 pm

  9. “So I submit that if your gender really does change the way you’re generally deciding cases, you’re probably doing it wrong.”

    Oh, I see. So you really do have a totalizing concept for how cases must be decided, and other methods are wrong. You haven’t given us the correct method. I suspect that it has words like rational, and deliberative, and neutral. But of course, neutral to you means nothing more than lacking preassumptions that you happen to be conscious of.

    It isn’t a matter of every woman deciding every case a certain way, that would be absurd. It is a matter of likelihood of responding to the kinds of arguments I or other progressives want to make. Imagine the Court gets a brief detailing real-life stories of the consequences of teen pregnancy on real women’s lives. Who is more likely to resonate with it, who is more likely to scoff at it for presenting itself in an improper and irrational non-justiciable format. (I’ll give you a hint… Scalia.)

    Or what about same-sex marriage rights. Think of the most homophobic people you know… most of them are straight men right? I know from arguing these issues with people for years that women on average are easier to talk to, less likely to totalize every assertion, and more sympathetic to oppression claims. Of course there are plenty of young Thatchers and Albrights and Batchelders out there, especially in law schools, maybe someday no one will recognize different voices.

    Comment by Corey Johanningmeier — July 15, 2007 @ 4:33 pm

  10. How Tom expects to get two black, female, liberal judges (one twice), through Georgia’s two troglodyte Republican senators remains to be seen.

    Zell Miller nominated the current female, African-American Chief Justice of the Georgia Supreme Court (Leah Ward Sears, on Tom’s list of 30). Lest he challenge me to a duel, I am not applying the term “troglodyte” to the formerly Democratic former Senator from Georgia. Calling him a Republican is probably fair, though.

    Comment by Jon Eisenman — July 15, 2007 @ 5:25 pm

  11. Corey,

    I’m curious — Would you rather have a rich, white, Harvard-educated country club WASP descended from slaveowners who happens to vote in a liberal direction, or a state-school educated minority woman from a modest background who votes in a more conservative direction?

    Comment by Orin Kerr — July 16, 2007 @ 7:01 am

  12. Jon E. — The lamentable Miller was known here as “Zig-zag Zell” even before he went to Washington. But that don’t make no never mind, now we have a couple of full-blooded scalawags, including a gen-u-wine white-shoed realtor.

    Comment by Roger Friedman — July 16, 2007 @ 7:47 am

  13. Would you rather have a rich, white, Harvard-educated country club WASP descended from slaveowners who happens to vote in a liberal direction, or a state-school educated minority woman from a modest background who votes in a more conservative direction?

    What’s wrong with a rich, African-American centrist?

    Comment by Jacques McKenzie — July 16, 2007 @ 11:19 am

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