The Next Supreme Court Nominee

Over at Debate Club, they've been wondering if any nominees could command unanimous support.  No agreement so far.  Volokh conspirators have chipped in helpfully, first suggesting John Roberts, but then realizing that he would likely face strong Democratic opposition.  Meanwhile, Talkleft thinks that Ted Olson is likely to be the next candidate.

All this speculation leads me to a point that I've argued before (and that I've seen others argue before as well):

The best possible candidate for the next Supreme Court opening (assuming that it's a Bush appointment) is Richard Posner.

Let's start by suggesting that the best candidate is one who will be widely accepted.  Bush may (or may not) have the political capital to force through a controversial candidate.  But it is probably best for everyone if he goes with a less controversial candidate, one who is (to use a phrase mentioned at Debate Club) "approved by conservatives, lauded by moderates, and acceptable to liberals." 

In addition to meeting those political requirements, a strong candidate omust be one who fares well in the measurements that will be used in evaluating nominees.  These will include a judge's intelligence, understanding of law, prudence, ability to work with other judges, independence, and willingness to subordinate individual preferences to the rule of law. 

Judge Posner is examplary in nearly every category.  He is recognized as one of the greatest legal minds of his generation.  He has been instrumental in the widespread use of economic principles in legal scholarship and in court decisions.  He has also written extensively about jurisprudence and about substantive law in dozens of areas ranging from employment law to antitrust to torts, and everything in between.

Judge Posner's independence from any political thrall is unquestioned.  There is no doubt that he calls the cases as he sees them.  One may disagree with individual judgments -- I often disagree with his conclusions -- but his opinions are always articulate and well-reasoned.  And on the critical question of "will this judge simply vote along party lines?", the answer is a resounding "no."  Whatever one says about Judge Posner, he cannot be accused of simply voting a straight Republican ticket. 

On the one hand, Judge Posner's jurisprudence and scholarship is often quite conservative in tone.  He has argued that Title VII is inefficient; he has defended monopolies and criticized anti-monopoly laws; he has roundly critiqued former President Clinton for dishonesty.  He regularly speaks in venues like the American Enterprise Institute. 

However, Posner's conservatism has always included a healthy dose of independence.  He refused to join the textualist-originalist ranks in the field of interpretation, instead offering an influential "tank commander cut off from radio communication" model that affords broad independence to judges.  He has argued, with the left, against intellectual property restrictions like the DMCA. 

Posner's independence is evident from his blogosphere presence as well.  Posner blogs with "Nobel"-winning economist Gary Becker, and has also blogged with Larry Lessig and with Brian Leiter.  If that's not a broad coalition, the term has no meaning.

Posner's scholarship is extensive, and he does not avoid controversial topics.  This  means that everyone can find something in his scholarship with which to disagree.  I often find myself in disagreement with Posner's conclusions.  But his conclusions are never sloppy or ill-thought, and never seem dishonest.  He says what's on his mind, after thinking it through.  And he typically says it well. 

There are three potential bumps in the road for a Posner nomination:  age, liberals, and conservatives.

Age may come into play.  Judge Posner is not a young man.  However, he is still, by all reports, sharp as a tack.  I don't see age stopping a Posner nomination.  (It may factor in, however, since conservatives will see a Posner nomination as providing less bang for the buck -- they will want to get 20 or 25 years out of this nomination, and Posner may, realistically, be more in the 10-15 year category). 

Liberal opposition may materialize.  And let's be frank:  Because Judge Posner has written a lot of things, it will be easy to find something to use against him.  The infamous baby-selling article, for instance, is likely to come up. 

But will liberal opposition keep Posner off the Court?  Probably not. 

First, Posner is likely to be overwhelmingly supported (as McConnell was) by his fellow legal academics.  Will Democrats really stand in the way of a Posner nomination when Posner's colleague (and politically connected liberal law professor) Cass Sunstein can, on the drop of a hat, produce a letter signed by hundreds of legal academics of all political stripes, supporting a Posner nomination?  Not likely.

Second, Democrats know that Bush has a dozen hatchet men who he could nominate, and a Posner nomination is decidedly not a hatchet man nomination.  Yes, he'll often vote with the court's conservatives.  But he'll also break from them on some important issues.  He'll likely become a key moderate-conservative vote on the court.  That's not such a bad outcome for Democrats.

For precisely that reason, conservatives may oppose the nomination.  The interest groups on the right don't want a moderate-conservative, they want a yes-man who will rubber-stamp their agenda.  And they may feel that, with Republicans in power, they deserve such a nominee.

However, I don't know that they'll be able to stop a Posner nomination, either.  First, Bush and Rove have a pretty good control on party machinery (much better than the Democrats have) and can exert muscle to bring wayward elements into line.

Second, Judge Posner brings a lot to the table for conservatives.  With his mind and pen, he will be authoring lots of important opinions, and they will be mostly conservative in tone.  He will frame issues in important ways.  Conservatives could do a lot worse than putting one of the premier theorist judges of our time onto the Supreme Court and letting him write careful, lucid, well-reasoned opinions that will still be cited 100 years from now.  He could become the conservative Brandeis, who was important as Court participant but equally (perhaps more) important for the concepts that he trumpeted from the platform of the Court. 

And of course, Bush has a key weapon with which to beat any reluctant groups into submission -- the truth.  "This is the greatest jurist of our time," he can say.  "How can you oppose him?  Such opposition could only be based on crass politics."

And he'll be right.

A Posner nomination would give Bush indelible proof that his nominations are not about politics, but about appointing the best person for the job.  Law school faculties and the judciary would support the nomination overwhelmingly -- how could they not?  And Bush would gain vast political capital as Posner sailed through the confirmation process.  It's the choice of a uniter, not a divider, and it would go a long way towards rehabilitating Bush's once-important image as a moderate, "compassionate conservative."

Perhaps it's not a political reality.  Very few of the media's "short lists" (such as this one) even mention Posner.  If he's not on Bush's short list -- at the top of it -- it would be a shame.  Judge Posner is clearly the right man for the next Supreme Court nomination. 

Update from Dan Markel: Welcome Instapundit readers.  PrawfsBlawg has been up and running for about two months now, and it's a forum where legal academics (both current and rising) discuss law and life.  Some other recent posts you might enjoy while you're here include: reflections on leaving legal practice; pictures and thoughts on HinJew weddings; the comedy of the new Blue Book; this post on what Star Wars can teach legal theorists; this post on Israeli tourism and the evacuation from Gaza; and these posts on why the Bar Exam should be abolished.  Since we're still new, please bookmark us and if you like our 'zine, tell your friends about us.  Welcome again to PrawfsBlawg (home of raw law prof blogging).