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Wednesday, June 08, 2005

More introductions

I'm another guest blogger here, with an expected run of a week or two.  I teach at Penn, conflicts and constitutional law; you can see my faculty profile here.  I might have some thoughts on Raich in the next couple of days, which I might not post because I realize that on internet time it's already in the distant past.  And then I have some thoughts about what and how we teach our students, and why the popular understanding of constitutional law is so different from the professorial perspective.  But for now I want to do my bit to publicize an extremely interesting movement spearheaded by some of my friends: Draft Prado.

The idea here--which will be more or less appealing to you depending on how you feel about the likely alternatives--is to create a groundswell of support for a potential Supreme Court nominee who has already obtained bipartisan endorsements, someone who could be confirmed 100-0.   Identify this person, have Senate moderates propose him as a consensus nominee who will move us past the bitter nomination fights we've just seen, and how could the President say no?  Well, we might find out.  But in the meantime, the first step of identifying a potential nominee has been taken:  it's Ed Prado, put on the federal bench by Reagan, elevated to the 5th Circuit by George W. Bush in 2003, and confirmed 97-0 by the Senate.  For more on the draft Prado movement, see the Legal Affairs debate from the week of May 23.

Posted by Kim Roosevelt on June 8, 2005 at 05:21 PM in Housekeeping | Permalink


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I don't think that Bush has have much reason to nominate anyone other than an ultra-conservative and doubt that any "draft" movement could have much influence. But this one seems especially unlikely to go anywhere, mainly because Prado doesn't appear to have any group of enthusiastic Republican backers and, as another commenter noted, is relatively unknown. In other words, it seems that Prado is the Bush appointee Democrats like most, rather than a true "compromise" candidate. The best approach to a draft movement would be to try to get Democratic support for a moderate/libertaian leaning Republican--someone who has a natural base of Republican support among, say, the Reason magazine set, and would be far better than the more traditional hardcore conservatives that the religious right wants chosen. A Posner or Kozinski probably wouldn't be as good from a liberal perspective as Prado, but at least they'd be better than the religious right alternatives and they would actually have a shot. If Democrats started to mobilize around a candidate of this type, they might have a realistic chance at getting moderate/libertarian leaning Republicans actively involved in the campaign. After all, from reading instapundit and talking to some of my libertarian type friends, it seems there is a decent amount of frustration in those circles that the potential nominees they like aren't seriously being considered in all the media speculation. If a draft movement got a few prominent Republicans involved, it would start to generate media attention (there's nothing the MSM loves more than covering Dems or Repubs who break from the party line.) If that happened, there could be real pressure put on Bush. But if the only people involved in the draft campaign are Dems, then why should the Republicans care at all?

I'm aware that the site has some quotes from Republicaan Senators about Prado, but a supportive statement during a circuit confirmation vote is not at all the same as a true bi-partisan draft movement in which Republicans are *actively* supporting a potential nominee alongside Democrats. The difference between the two is the difference between a campaign that will go nowhere and one that might have some influence. Of course, since Prado is so unknown to me, maybe he has some group of enthusiastic Republican supporters that I'm not aware of... but from what I've heard about the campaign so far that doesn't seem to be the case.

Posted by: P. Fairbanks | Jun 9, 2005 3:38:54 PM

It almost sounds like this is a cynical political strategy to push Bush as far to the left as you can, not a good faith effort to locate a consensus nominee.

Posted by: Charles Underwood | Jun 9, 2005 12:43:36 PM

I appreciate the comments, but I don't think people are looking at this from the right perspective. If a group of senators, even a group containing Republicans suggests Tatel, it's easy for Bush to dismiss the idea--Tatel has a liberal track record and was appointed by Clinton. It's much harder for Bush to say "I reject the moderate conservative Hispanic that Reagan appointed and I elevated." What's the reason? That he's not enough of a conservative activist?

For similar reasons, if Bush picked Prado (which I concede is unlikely), I think even quite conservative senators would find it very hard to vote against him. They're trying to reject their President's choice, who was confirmed 97-0 two years ago? Now who's out of the mainstream come reelection time?

In the final analysis, we might very well end up with Luttig or someone like that anyway. But the existence of an alternative around whom support had already coalesced would make opposition easier, and at the least Bush would have to visibly reject a moderate Hispanic conservative.

Posted by: Kim | Jun 9, 2005 11:57:54 AM

Btw, the Dan above is not me. Future commenters should put their initials to make clear who they are--and who they're not.

Posted by: Dan Markel | Jun 9, 2005 9:13:16 AM

Dave writes:

"Did the Senate Dems put up a brutal fight when Justice Breyer was nominated? He was well to the right of what Senate liberals must have been hoping for."

The comparison is not a useful one. Two key differences.

1) Senate conservatives are obsessed with the Supreme Court in away that the democratic senators of the early 1990s were not. They are passionate about this. This is a big issue for their base. As they like to say, "No More Souters." Prado is another Souter.

2) While Breyer was a moderate liberal, he was at least consistently and identifiably on the left side of most issues. My understanding is that Prado is not identifiably on right side of things. Your example might work with respect to Alberto Gonzales, but I don't think it works with Prado.

Finally, if we're going to pick centrists, why not pick some recognizable Democrats? What's wrong with David Tatel, for example? One objection might be that Bush would never pick him, but then that is equally true for Prado.

Posted by: Dan | Jun 8, 2005 11:31:10 PM

Hillel and Dan: I agree with you on the outcome (not conceivable) but I disagree that Bush would be committing political "suicide" by picking someone to Rehnquist's left, or that the Senate conservatives would put up a fight. Did the Senate Dems put up a brutal fight when Justice Breyer was nominated? He was well to the right of what Senate liberals must have been hoping for.

Kim: welcome to the blog! I like the idea of drafting a justice generally, and I also look forward to reading your posts.

Posted by: Dave Hoffman | Jun 8, 2005 10:39:01 PM

Sorry Kim, but there's just no reason for Bush to even bother. He won't and he shouldn't. There's no norm calling for a unanimous supreme court pick. Bush needs to pick someone confirmable. The best we can and should hope for is a principled conservative rather than a partisan hack. McConnell or Roberts should do fine. This is particularly true since we are talking about a replacement for Rehnquist; Bush would be committing political suicide by picking someone to Rehnquist's left.

I should say that I quite enjoyed your debate club about Rehnquist, and I look forward to reading your posts!

Posted by: Hillel Levin | Jun 8, 2005 9:35:56 PM

In the imaginary world in which Bush would opt to shift the Supreme Court considerably to the left by nominating Prado, what's the case that GOP conservatives would go along? Wouldn't a Prado nonination draw a brutal fight from Senate conservatives?

Also, in your view is Judge Prado sufficiently distinguished to be a Supreme Court Justice? No one I know has even heard of him.

Posted by: Dan | Jun 8, 2005 8:52:38 PM

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