« Departmentalism Won't Look So Good | Main | Northwestern University Law Review Spring Article Selection and Call for Symposium Proposals »

Thursday, February 03, 2022

"In Tonight's Performance, Warren Rudman Will Be Played By...."

The New York Times has a delightful story today reporting that Rep. James Clyburn, whose vital endorsement is famously linked to President Biden's pledge to nominate a Black woman to the Supreme Court, has a particular candidate in mind--federal district court judge J. Michelle Childs, who is also currently a nominee for the DC Circuit--and is pushing for her appointment. The story calls it "a blatant effort to call in a political favor in the form of a lifetime appointment to the nation’s highest court" and suggests that although the administration is officially considering her nomination, it has also occasioned some pushback. The pushback is best represented, in the story, by its very non-specific, off-the-record, "aides say" nature--and by the more specific detail that some pushback has come from "some progressives and labor activists, who have flagged her work as a lawyer representing employers opposing unionization drives." One may sympathize with those who find it difficult to keep straight the question when a lawyer in private practice--in this case, at the firm of Nexsen Pruet, where Judge Childs became the first African American partner--is or isn't inextricably linked with the legal aims of her clients. The story describes her as being "regarded as more moderate than other candidates Mr. Biden is thought to be considering." Hence, one assumes, the pushback. 

30-odd years ago doesn't seem like ancient history to me, but the analogy missing from the story is to former Justice David Souter, who was heavily pushed for the Court by Warren Rudman and John Sununu--and who was ultimately viewed as a disappointment to Republicans who wanted and did not get a more conservative vote.

If the analogy holds, I say more power to Rep. Clyburn and Judge Childs. Walter Dellinger writes in today's Times that there is "a long and important tradition of presidents taking into consideration the demographic characteristics of prospective justices — including geographic background, religion, race and sex — to ensure that the Supreme Court is and remains a representative institution in touch with the varied facets of American life." Jamelle Bouie the other day opined that it is time to reject the standard-issue Establishment view that "the court is the final rung on the meritocratic ladder for judges and other legal elites." He added, "To the extent that Biden has been open about the politics and political optics of this nomination, I think he’s done a service to the public. The Supreme Court does not exist outside of ordinary politics, and the justices aren’t members of a secular priesthood. Anything that makes this clear, anything that helps bring the court back down to earth where it belongs, is worthy of our support." 

Quite so. The old saying that a judge is a lawyer who knew a governor still holds true. There is little doubt that Judge Childs, as a federal judge and nominee--by this president--for still another federal judgeship, is qualified in a general historical sense. There is plenty to be said for nominating someone who is the daughter of a police officer, who lived in Detroit and in the Deep South, and was educated somewhere other than the same usual one or two square miles of the United States. The fact that her nomination might more nakedly suggest a relationship to straight-up relational and transactional politics is, as Bouie suggests, neither unusual nor necessarily a bad thing. And, as Justice Souter demonstrates (in my view), it can turn out quite well. I personally welcome a choice that brings a "more moderate" judge to the court, if only because it defies the usual and dominant currents of polarization. Most of all, there is always something to be said about making a choice that defies the settled expectations of a small number of political and legal professionals, who are quite sure they know exactly what and who is needed and that they have the whole thing sewn up, in favor of a more Tip O'Neill-ish acknowledgment that all politics, including Supreme Court politics, is local. Hubris being what it is, when Everyone Who Counts is convinced they know who the nominee ought to be and that the stakes have never been higher, and when the interest-group press releases have already been all but finalized and mass-emailed, that is exactly the time to do something else.     

Posted by Paul Horwitz on February 3, 2022 at 07:03 PM in Paul Horwitz | Permalink


The comments to this entry are closed.