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Friday, July 04, 2008

Thinking creatively about different SCOTUS short lists

The holiday times, the end of a notable SCOTUS Term, and this new Findlaw article (titled "What Kind of Justices Might a President Obama Appoint? Senator Obama's Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable") have me thinking creatively about what a truly "unpredictable" SCOTUS short list might really look like.

Consider, for starters, that modern SCOTUS appointments are usually older individuals even though, as detailed here, the "average age of the delegates [at the Constitutional Convention] was 42 and four of the most influential delegates -- Alexander Hamilton, Edmund Randolph, Gouvernor Morris and James Madison -- were in their thirties."   A truly creative SCOTUS short list might include some folks born after the end of the Warren Court.

Consider also that all the current member of the Court were elevated from federal circuit courts even though, as detailed here, dozens of Justices throughout history have come to SCOTUS with no prior judicial experience.  (Notably, the list of SCOTUS judicial rookies includes John Marshall, Louis Brandeis, Harlan Fiske Stone, Felix Frankfurter, William O. Douglas, Robert Jackson, and Earl Warren.)   A truly creative SCOTUS short list would include some folks who have never donned a black robe.

Finally, we should not leave out classic identity dynamics given that 106 of 110 Supreme Court justices in US history have been white men.    A truly creative SCOTUS short list would certainly include many folks with diverse personal characteristics and backgrounds.

So, for either or both leading Presidential candidates, how about using the comments to start developing a truly creative SCOTS short list?

(Cross-posted at SL&P)

Posted by Douglas A. Berman on July 4, 2008 at 07:41 PM in Constitutional thoughts | Permalink

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I've barely recovered from recently re-reading that Justice Douglas used to buy his clothing at Abercromie & Fitch (see The Brethren by Woodward and Armstrong). Anyone know where Mylie Cyrus shops? [ / sarcasm]

Posted by: Ann Bartow | Jul 7, 2008 9:14:40 PM

"I didn't think there existed anyone on the planet -- none who owns a TV or radio, anyway -- who does not know that Mylie and Hannah are one and the same."

I really just learned it last week. If you want a really creative idea, what about Cass Sunstein? He seems to be Obama's favorite law professor. Then again, there's probably something in his immense paper trail that would cause him confirmation difficulties. I have to say that if he nominated Karlan I'd be very dismayed. Brilliant woman but she's practically devoted her entire career to defending racial gerrymanders.

Posted by: yet another anon | Jul 6, 2008 12:35:32 AM

How about Gloria Allred?

Posted by: Stuart Buck | Jul 5, 2008 8:38:12 PM

For Obama's pick #2, how about Joshua Rosenkranz? Know nothing about him personally, but just based on resume: clerked for Scalia on DC Circuit and now works at firm representing big business clients among others, but otherwise lots of progressive street cred (and impressive accomplishments): Brennan clerk, founded Office of Appellate Defender in NY and Brennan Center for Justice at NYU, led litigation against Solomon Amendment, etc.

I say pick #2 because chance of Obama's first pick being white male is (and probably should be) less than zero.

Posted by: Jason Solomon | Jul 5, 2008 8:12:15 PM

Obama might be the first president since Nixon to nominate a justice without prior judicial experience (Rehnquist was the last, I believe).

In fact, Obama might be willing to appoint someone from otuside of politics entirely--most likely, someone from the academy. So how's this for two broad groups of possibilities: people with whom he and his wife attended HLS, and HLS profs who were mentors/influences for Obama.

One of you profs with a better working knowledge of who's who in academia might be able to come up with a more concrete list.

Posted by: another anon | Jul 5, 2008 6:19:31 PM

"I admit I had to google to find that out. . . ."

You're kidding, right, Orin? I didn't think there existed anyone on the planet -- none who owns a TV or radio, anyway -- who does not know that Mylie and Hannah are one and the same.

Now, if you told me you had to google in order to find out what Mylie's *real* name is, *then* I'd believe you. (Hint: You'd consider "Mylie," too, if your parents had given you this name.)

Posted by: Marty Lederman | Jul 5, 2008 5:54:14 PM

"I admit I had to google to find that out. . . ."

You're kidding, right, Orin? I didn't think there existed anyone on the planet -- none who owns a TV or radio, anyway -- who does not know that Mylie and Hannah are one and the same.

Now, if you told me you had to google in order to find out what Mylie's *real* name is, *then* I'd believe you. (Hint: You'd consider "Mylie," too, if your parents had given you this name.)

Posted by: Marty Lederman | Jul 5, 2008 5:53:11 PM

anon,

I admit I had to google to find that out. . . .

Posted by: Orin Kerr | Jul 5, 2008 5:35:04 PM

I don't know whether to be amused, disappointed or disconcerted that Professor Kerr knows the identity of the real Hannah Montana!

Posted by: anon | Jul 5, 2008 3:32:11 PM

Georgia Chief Justice Leah Sears

Posted by: Chris Bell | Jul 5, 2008 3:03:08 PM

I think a truly creative, out-of-the-box pick for a President Obama would be Ed Whelan. For John McCain, a truly creative, out-of-the-box pick would be Duncan Kennedy. Both of these picks would end the tired game of "pick the court of appeals judge who shares your politics" so beloved by the establishment and the beltway insiders.

If we instead want someone young, creative, and energetic, then a truly creative pick would be Miley Cyrus, the 15 year old actress who plays Hannah Montana. I think she would add a lot of energy to the current bench, she could serve for 60 or 70 years, and her selection would obviously appeal to younger voters and voters-to-be.

Posted by: Orin Kerr | Jul 5, 2008 2:53:27 PM

The thing about appointing legislators with decent legal credentials who have strong positions on controversial issues of the day is that two can play that game. For example, I think Lindsey Graham would be a tempting, confirmable pick if John McCain's first prioeirt is to overturn the war on terror decisions.

Posted by: Andrew Siegel | Jul 5, 2008 2:09:28 PM

Well, as long as we're understood only to be playing the parlor game:

Mark's suggestion of Bill Marshall is inspired. For the first nomination, I would hope a President Obama would appoint someone relatively young, brilliant, and energetic, who would be an effective counterweight to the formidable skills of Chief Justice Roberts. Bill fits the ticket, as do, e.g., Kathleen Sullivan and Pam Karlan. (For all I know, Sonia Sotormayor fits this description, too, but I don't know enough about her.)

For something a bit different, and in order to bring to bear some perspective that is sorely lacking on the Court, what about members of Congress? A couple of former prosecutors spring to mind -- both of whom have been great of late on issues relating to executive power: Artur Davis and Sheldon Whitehouse.

Posted by: Marty Lederman | Jul 5, 2008 11:43:20 AM

Creative at this point means someone who is not presently a court of appeals judge or (perhaps) an academic. So, how about someone with SG/AG experience--Seth Waxman? Walter Dellinger? Or, to go really far afield, how about John Edwards?

Posted by: Howard Wasserman | Jul 5, 2008 10:17:26 AM

Wow, Bill Marshall! I love Mark Tushnet's suggestion!

One question for Doug B--isn't "creative" usually inconsistent in the law business with "plausible"? Do you mean creative and plausible or just, wow, that's a great idea ... will never happen?

Posted by: Alfred | Jul 5, 2008 9:27:38 AM

All interesting names, commentors, but I am still looking for some big-time creativity. None of these suggestions are even as creative as Harriet Miers, though I suppose she is not an ideal SCOTUS nominee gameplan.

Posted by: Doug B. | Jul 5, 2008 8:41:58 AM

I'm going to be posting a couple of fuller entries on potential nominees in the next few days, but I think the first nominee could just as easily be Diane Wood, Merick Garland, or Elena Kagan as Sonia Sotomayor, particularly if there is reason to think that more nominations are in the offing.

Posted by: Andrew Siegel | Jul 4, 2008 10:27:36 PM

Deval Patrick?

Posted by: Jason W. | Jul 4, 2008 9:14:44 PM

Keeping in mind William Goldman's classic line, "Nobody knows anything," I'd offer two on the Obama side, one obvious, the other less so. A prefatory comment, though: You have to think about what the Senate will look like, not what the Senate's been like. So, assuming an Obama presidency, you also have to assume a Senate with 55-56 Democrats (maybe more), and probably a bunch of pretty dispirited Republicans. The obvious one is Sonia Sotomayor; it's hard to see how there's any other plausible candidate for the first Obama vacancy. The less obvious is Bill Marshall (for a variety of reasons, a more plausible quasi-academic choice -- "quasi" for the moment, not that he's not a real academic -- than other names that get bandied about.)

Posted by: Mark Tushnet | Jul 4, 2008 8:27:48 PM

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