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Tuesday, October 15, 2019

A progressive SCOTUS short list

The progressive group Demand Justice has issued a Supreme Court Shortlist, offering 32 names for SCOTUS appointments by a new Democratic President. It is an interesting list.

It contains only two federal court of appeals judges--Jane Kelly (8th Circuit, a short-lister for the Garland nomination), and Cornelia Pillar (D.C. Circuit). And not Patricia Millett of the D.C. Circuit, who had become the left's darling with her opinions in the undocumented-immigrant-abortion cases.

The list consists of 17 women and 13 men. Besides the two court of appeals judges, thirteen do some sort of public-interest representation, seven are in the academy,* four are on a state court (three on the Supreme Court of California, including Goodwin Liu, who Obama tried to put on the Ninth Circuit), four serve in elected or appointed office, and two serve on a federal district court. The organization expressly sought to move away from the former prosecutors and law-firm partners who have dominated among Trump appointees.

[*] Sharon Bloch (Harvard), James Forman, Jr. (Yale), Pam Karlan (Stanford), M. Elizabeth Magill (Provost at UVa, former dean at Stanford), Melissa Murray (NYU), Zephyr Teachout (Fordham), and Tim Wu (Columbia). Plus, Sherrilyn Ifill of the NAACP LDEF was on the faculty at Maryland and Rep. Katie Porter (Cal) was on the faculty at Iowa and Irvine.

The list is short on federal judicial experience, making it a throwback to a time when judicial experience was not regarded as essential to a SCOTUS seat and when service on a state court was respected judicial experience for that position. I wonder if this is a SCOTUS shortlist or a good place for a Democratic President to begin filling lower-court seats.

I am surprised our own Steve Vladeck did not make the cut. The combination of his scholarship, public advocacy, and recent litigation experience places him within the legal milieu reflected on the list.

Posted by Howard Wasserman on October 15, 2019 at 05:42 PM in Howard Wasserman, Law and Politics | Permalink


No shade-throwing here (okay, a tiny bit of shade), but Demand Justice is not really "led" by these two guys . . . it appears to be JUST these two guys. And I can't find a Board of Directors listed anywhere on the website, which is a little odd for a 501(c)(3). Does anyone know the board? Or anyone consulted on this list?

Posted by: Anon | Oct 16, 2019 2:33:02 PM

Middleist writes: "Considering that Judge Sri Srinivasan wasn't on the list, I'd say it's almost certainly meaningless dribble. Every leftist intellectual loves him the way rightists love Judge Don Willett."

I think you're wrong on both fronts. Srinivasan has fans among legal nerds across the political spectrum. Willett is beloved among libertarians, but not on the right.

Posted by: Orin Kerr | Oct 16, 2019 2:22:50 PM

Thanks very much, anon. Your last point was my thought: It's easy for the folks who didn't get their way last time to try to move the needle by trying to get press attention for their efforts about next time. And maybe they're hoping to replicate the success of the Heritage list for Trump. That is, maybe the Dem nominee might want a list and will look to their efforts or at least be influenced by it. It just struck me as a bit odd that people were paying attention to this rather quirky** list given that it wasn't backed by any campaign or interest group known to have influence.

** If any of my friends on the list are reading this, it is quirky *despite* your name being on it, not because your name is on it.

Posted by: Orin Kerr | Oct 16, 2019 2:21:31 PM

Orin, Demand Justice is founded and led by Chris Kang and Brian Fallon, both of whom were involved in the judicial selection and nomination process in the Obama Administration. It seems noteworthy enough that two of the officials involved in selecting the last group of judges nominated by a Democratic president have some thoughts about who should be nominated by the next one. On the merits, I think it's interesting that a pair of people who were at least partially responsible for selecting what is generally viewed as a relatively "mainstream" group of judges (Obama's, that is) are proposing what I think it's fair to say is a relatively progressive group of Supreme Court nominees--certainly nothing like what many people would view as a realistic short list for the next Democratic president. Perhaps it's a reflection of how far the left wing of the party has moved on judges in a short period of time. (Or perhaps it just reflects what these two people wish they could have achieved during the last Democratic administration, but could not because they were hamstrung by politics--in which case the list may mean very little at all.)

Posted by: anon | Oct 16, 2019 12:44:25 PM

Considering that Judge Sri Srinivasan wasn't on the list, I'd say it's almost certainly meaningless dribble. Every leftist intellectual loves him the way rightists love Judge Don Willett.

Posted by: Middleist | Oct 16, 2019 12:18:28 PM

I don't think I am familiar with the group "Demand Justice" that put together this list, which to me prompts a question: Is there any reason to think that this list is likely to be particularly influential, or that it reflects a process that makes the names listed particularly noteworthy? I ask because anyone can come up with a list about anything, and I don't see why we would particularly care that someone came up with a list unless the folks who came up with the list are in a position of influence or otherwise have some pull on likely future decisionmakers. So I figured I would ask, among those familiar with Demand Justice, well, why should we care about the list?

Posted by: Orin Kerr | Oct 16, 2019 2:51:08 AM

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