The Republican (Not So) Short List
Following up on my two posts (here and here) about potential Democratic nominees, here is my list of the thirty leading candidates for a Republican President (and here it is as a sortable Excel file). As with the Democratic appointments, I had the benefit of considerable research help, particularly from Akin summer associate Stanley Woodward. I also got advice from several outside sources who are much more plugged in to Republican legal circles. I’m very grateful.
I tried to assemble a diverse group, both demographically and in experience. There are six African Americans, five Hispanics, and one Arab American; eleven are women. Most are judges, but one is a sitting Governor; three are sitting or former Senators; and one is a State Attorney General. (I would have included Charlie Crist as another Governor, but I can’t imagine Republicans want to risk losing that office to a Democrat.)
I believe that a Republican President, like a Democrat, will feel pressure to name a woman to the Supreme Court and will see significant electoral value in naming the first Hispanic.
I expect that a Republican President would have the opportunity to name only one Justice in a first Term. Justice Stevens will be 92 at the time of the 2012 election – which would make him the oldest Justice in history (Holmes retired at age 90) – so that statistically the odds are that he would leave the Court by then. The appointment of Stevens’ successor would obviously give a Republican President – particularly a solid conservative – a remarkable opportunity to shape the Court.
Justices Scalia and Kennedy will be (respectively) 76 and 75 at the time of that election. Both no doubt would prefer to have their successors named by a Republican. But absent a very strong indication that the President’s reelection chances are doomed in 2012, I think both are likely to stay (as did William Rehnquist in 2004). Justice Scalia, in particular, will have (in this scenario) a solid working majority for the first time in his career.
A second nomination is instead most likely to be for a replacement for Justice Souter. (I keep predicting this, and no one believes me.) But I think he is unlikely to retire in the event the nominee would probably be quite conservative – in particular, if a conservative President were backed by a Republican Senate. But Souter might well retire if the President were Giuliani and the Senate remained under the control of Democrats.
As with the Democratic list, I tried to work from a basic age band: most of the candidates were born between 1952 and 1960. Only three pre-date 1952. But there are ten born between 1960 and 1963 (plus Paul Clement, who was born in ‘66), reflecting my view that any appointments will come later in the Term. Still younger candidates who would be seriously considered in a second Republican Presidential term – such as Texas Solicitor General Ted Cruz and Judge Brett Kavanaugh, among many other leading young conservatives – haven’t been included on the ground that they are too young.
Other candidates with impeccable credentials – such as Gibson Dunn partner Doug Cox – could emerge if they had a short time on the appellate bench.
The Republican list faces two very significant variables that are not in play for Democrats: the widely varying ideologies of the Presidential candidates and the realistic prospect that a Senate controlled by the other party will reject a nominee on ideological grounds. If there were instead a Republican Senate evaluating the nominees of a conservative President, the stock of candidates like Miguel Estrada and Michael Luttig would rise considerably.
As with the Democratic list, I haven’t studied the ideologies of the candidates.
As things stand, my short-list for a first nomination is: Ninth Circuit Judge Consuelo Callahan, Florida State Supreme Court Justice Raoul Cantero, Sentencing Commission Chairman Ricardo Hinojosa, Texas Supreme Court Justice David Medina, and Fifth Circuit Judge Priscilla Owen. I predict Callahan, which likely would disappoint conservatives who recognize the great importance of the Stevens seat, but which nonetheless reflects my sense of the likely political realities of the circumstances (i.e., who could get confirmed).
For a second nomination (should there be one), I would add as potential nominees Paul Clement, John Cornyn, Judge Michael McConnell, and Judge William Pryor. I predict Clement. (He would be very young, but for the record Joseph Story was 32 when he was appointed.)
I was surprised to see that Justice Corrigan of the Michigan Supreme Court did not make your list. Rumor has it she was on the short list when Justice Alito was nominated. Is there a reason for this, or was she just missed?
–David Hansma
Comment by David — July 23, 2007 @ 5:31 pm
While a little on the young side (born 1968 give or take a year or two), I would think that Colorado Supreme Court Associate Justice Allison Eid, who would have six years of experience as a state supreme court justice in 2012 (and whose husband is currently U.S. Attorney for the District of Colorado) would be an attractive choice for a Republican President.
Her tenure on a state supreme court, which keeps her distant from many of the hot button issues that come before the federal courts, might leave her with a paper trail more easily confirmed than some justices. Her Colorado pedigree might help her with swing votes in the U.S. Senate like Ken Salazar (D-Colo). And, while her conservative jurisprudential credentials are unblemished, but she hasn’t left behind the hard feelings that went with the bruising confirmation fight over candidates like Priscilla Owen.
Comment by Andrew Oh-Willeke — July 23, 2007 @ 5:55 pm
Callahan? Are you kidding? You think the same GOP/Conservative tidal wave that killed the Miers nomination is going to accept Callahan(from the 9th Ct no less) for Stevens, with the 5th vote and control of the court(and Roe) in the balance? Absurd. The GOP President who noinated Callahan to replace Stevens may as well announce his resignation the same day.
And where’s Ginsburg? She’s no spring chicken. It’s questionable she’d last through 2012.
Here’s a much more realistic list:
(In no particular order)
1st appointment
Miguel Estrada
Paul Clement
Diane Sykes
Janice Rogers Brown
Frank Easterbrook
2nd appointment
Maureen Mahoney
Michael McConnell
Paul Clement
Miguel Estrada
Diane Sykes
2 of the 3 of Estrada, Sykes and Clement are the most likely in my view.
If Tom is correct that Souter is more likely to leave under Rudy, that’s an added reason to nominate him.
Imagine this Court as the the Bretheren gather for OT 2012:
CJ Roberts
Scalia
Kennedy
Thomas
Souter
Breyer
Alito
Estrada
Sykes
Be still my heart
Comment by rufus peckham — July 23, 2007 @ 7:02 pm
In answer to David, I excluded Justice Corrigan — who I agree is very well qualified — only on the basis of age; she was born in 1948.
FYI, from the comments here and on other sites, the additional names that I’ve seen and would have included had I thought of them originally are Viet Dinh, Chris Cox, and Paul Cassell. Orin Kerr mentioned Steve Colloton as well, who I excluded (and still exclude) only because he is so young.
Comment by Thomas Goldstein — July 23, 2007 @ 9:00 pm
On the subject of Justice Ginsburg, Tom has discussed this in prior posts. He believes that she would try to avoid giving a Republican president the chance to name her successor. Although she may look frail, the conventional wisdom is that she is in no particular health trouble, and could easily hang on for another four, or perhaps even eight years.
Comment by Marc Shepherd — July 24, 2007 @ 8:42 am
Jan Crawford Greenburg reported in Supreme Conflict that Maura Corrigan withdrew her name from consideration for O’Connor’s seat. Thus, she would be an unlikely nominee unless she changed her mind.
Comment by Nathan Cardon — July 24, 2007 @ 10:13 am
Two corrections:
Andrew – Eid was born in 1965, not 1968. She’s 42 years old now, so will not be too young in subsequent administrations.
Tom – Colloton should be on the shortest of short lists. He is a star on the rise – he is a prolific opinion writer and is fantastic. And he isn’t two young. He was born in 1963 and is 44 years old.
Comment by Matthew Friendly — July 24, 2007 @ 10:53 am
Andrew Oh-Willeke:
I see you linked to your website through Eid’s name. Interesting post about Eid. Do you really believe that Clarence Thomas is one of the most mediocre justices of all time? I think most honest and informed followers of the Court’s jurisprudence would know that that is clearly not true. Go back, actually read some of his opinions, and then reconsider your post. The Harry Reid approach to opinion reading is not the way to go….
Comment by Matthew Friendly — July 24, 2007 @ 11:02 am
Tom:
Brownback and Pawlenty are non-starters – no need to have politicians on the list. Lavenski Smith is far too liberal to ever be picked by a Republican president. And you left several obvious people off, all of who would undoubtedly be on any realistic short list: Edith Brown Clement, Karen Williams, and Thomas Griffith, Neil Gorsuch, Steven Colloton, and Robert Young.
Otherwise, a pretty decent list.
Comment by Matthew Friendly — July 24, 2007 @ 11:17 am
I tend to agree with the commenters: I think that both Steve Colloton and Allison Eid would be short-listers for a Republican President even in his first Term (assuming no surprise women candidates for the Republican nomination). In light of the short list of women, I think that Allison in particular might be an attractive choice. (In her book, Jan highlighted how short the list of women for a Supreme Court seat really was.) Unless there is an overwhelmingly Democratic Senate (55 or more Democrats), I do not think conservatives would accept some of the names on the first list, particularly Callahan.
The first list is also pretty heavy on Latino or Hispanic judges–I am just not so sure that a Republican President other than Bush will put so much emphasis on ethnic diversity, especially over appointing a woman. I also agree that Paul Clement is a potential choice as well. But if there is a possibility of appointing young candidates such as Clement for that second seat, then Brett Kavanaugh surely has to be in the mix as well.
I am also glad to see that you are now predicting that Justice Souter will leave after Justice Stevens. I have stated in the past that I believe that Souter might leave, but it will be only after he defers to his colleagues–such as Justice Ginsburg or Justice Stevens–who may have a more immediate desire to retire.
Comment by David Stras — July 24, 2007 @ 12:10 pm
In weighing “medicrity,” it is useful to distinguish ideology from other more neutral factors. I know there are conservatives who believe that there’s no such thing as a competent liberal, and there are liberals who believe there’s no such thing as a competent conservative.
But it’s worth noting that Justice Brennan said that Rehnquist was a great Chief Justice (sorry, I don’t have an exact reference, but I know he said it). That’s despite the fact that, ideologically speaking, they could hardly have been more unalike. Brennan, at least, recognized that there are measures of judicial competence other than ideology.
Whether Justice Thomas is “mediocre” depends on which traits are considered more valuable. He has a clear vision of the law, and he sticks to it rigorously. That rigor makes his jurisprudence either breathtaking or frustrating, depending on your perspective. But it also takes him out of the running to write the principal opinion in many cases, because a lot of his views can’t attract five votes. Because of that, Justice Thomas is usually not assigned the opinion in cases where a nuanced holding is required to retain the vote of a wavering justice or two. If Justice Thomas’s tenure ended today, he would be remembered more for his concurrences and his dissents than for his majority opinions.
Justice Thomas is far more willing to overrule precedent than any other Member of the Court. Perhaps some of the historians here can comment on whether there has ever been another justice who had so little regard for precedent. Again, depending on your viewpoint, that could be good or bad. But should the day come when it’s the liberals, not the conservatives, who have the 5-4 advantage, I suspect most conservatives will become big proponents of adhering to the precedents that the current Court is laying down. Respect for precedent, or the lack thereof, cuts both ways.
In his dissents and concurrences, Justice Thomas has been somewhat prone to saying, “I would be prepared to consider such-and-such in an appropriate case.” Some people are happy to receive these hints, while others feel that speculation about future cases is unseemly.
So, on a number of points Justice Thomas has staked out territory where he is, at least for now, all by himself. Depending on your viewpoint, he’s either a visionary, or he’s out-of-touch.
Comment by Marc Shepherd — July 24, 2007 @ 1:35 pm
Thomas Griffith, Neil Gorsuch, and Edith Brown Clement are too controversial on social issues — you’d need less of a paper trail than that.
Comment by Jacques McKenzie — July 24, 2007 @ 3:18 pm
Also, you are forgetting Michael Carvin.
Comment by Jacques McKenzie — July 24, 2007 @ 3:21 pm
Thanks David. You have indeed said that repeatedly about Souter. I didn’t mean to suggest I agree, however. In the scenario of a moderate Republican President and a Democratic Senate, I think that Souter leaves first.
Comment by Thomas Goldstein — July 24, 2007 @ 3:48 pm
Interesting points, Tom. Thanks for clarifying.
Comment by David Stras — July 25, 2007 @ 9:32 am
A lot of these choices would be more welcome to a Democrat than a Republican.
Lavenski Smith has turned out to be ever-so- slightly left-of-center on the Eighth Circuit, left of that Circuit’s center on race discrimination claims, and willing to uphold some restrictions on anti-abortion signs (that latter fact is surprising given his pre-judicial litigation work with the Rutherford Institute). Despite his once conservative background, he now seems to be a moderate with some liberal tendencies.
Maureen Mahoney is a highly-sought-after and talented Supreme Court litigator, but given that her chief claim to fame is getting the Supreme Court to uphold racial preferences in college admissions in Grutter v. Bollinger, she would be an odd choice.
(One issue where the conservative base and the public are in sync is in opposing affirmative action. The public is generally opposed to racial preferences, including affirmative action, and polling data in the aftermath of the Grutter decision showed that the public opposed that decision. Moreover, Michigan voters responded to the Court’s decision in Grutter upholding affirmative action at the University of Michigan Law School by enacting a state ban on affirmative action. Even in Democratic-leaning states, like California and Michigan, affirmative action is controversial and unpopular).
Sandra Ikuta has useful expertise in many types of law that come before the federal bench, and her nomination might prove welcome to business, but social conservatives who are the base of the Republican Party would probably be very disillusioned by her being nominated.
She joined in the unpublished Ninth Circuit decision that allowed a fairly bland and harmless “family values” flyer to be banned under the dubious theory that it violated a local government’s anti-gay harassment policy — a ruling that has been criticized by George Will and other conservative columnists as permitting censorship in violation of the First Amendment.
Consuelo Callahan has a mildly-conservative record on the Ninth Circuit. Some of her prior “liberal” rulings on the California state bench — like the Catholic Charities case — may tick off social conservatives, but her federal court record might be conservative enough to warrant her consideration for a Supreme Court nomination under certain circumstances, namely, if a Republican president faces a strong Democratic majority in the Senate.
In that case, a Republican president may only be able to get a moderate-conservative minority confirmed, as opposed to a truly conservative candidate, or a white male candidate. (Callahan is Hispanic).
Moreover, some of Callahan’s seemingly “liberal” state court rulings are explainable by the fact that California state law is, in fact, often quite liberal, and even a conservative judge will end up making seemingly “liberal” rulings if the law is itself liberal.
Comment by Hans Bader — July 25, 2007 @ 11:56 am
Tom,
Your short-list also ignores Hans Bader.
Comment by Jacques McKenzie — July 25, 2007 @ 12:01 pm
Marc Shepherd:
You make my argument for me. Under none of your criteria can Thomas be considered mediocre. First you say “he has a clear vision of the law which he sticks to rigorously.” This is a fundamental characteristic of a successful SCOTUS justice (cf. David Souter). Further you say this makes his jurisprudence “either breathtaking or frustrating.” Nothing mediocre about that. The points of being a visionary or out-of-touch are meaningless and demonstrate the writer’s misunderstanding of the justice’s role. A justice needs to be in-touch with nothing other than the law, so to the extent the pejorative “out-of-touch” refers to some preferred social understanding, it is foolish and naive.
Your point about writing majority opinions vs. dissents is important but misses the point. The ability to bring coalitions together for majorities is political in nature, and has very little to do with one’s legal or jurisprudential ability. Warren was a master politician but a third-rate legal mind. Similarly was Brennan, though his legal acumen was considerably greater than Warren’s. And many of the great justices are remembered for their dissents, which often eventually became (or influenced) the law of the land: Harlan (I & II), Holmes, Brandeis, Black, Frankfurter, and more recently Rehnquist and Scalia.
That is not to say Thomas measures up with those legal giants. It is to say no honest, reasonable argument can be made that he is mediocre.
Comment by Matthew Friendly — July 25, 2007 @ 12:09 pm
Jacques:
Thomas Griffith and Edith Brown Clement have almost no record on social issues. To what are you referring?
Gorsuch has written an article or two, but they’re intelligent positions and easily defensible.
Comment by Matthew Friendly — July 25, 2007 @ 12:14 pm
Tom:
How about Lee Rosenthal and Loretta Preska? Both have been mentioned on more than one occasion as excellent, conservative judges on the short list.
Comment by Matthew Friendly — July 25, 2007 @ 12:19 pm
I can definitely see where you’re coming from, Marc regarding Justice
Thomas. He is definitely not a consensus builder, he is in my view one
of the extreme justice on the court. In some ways, the Chief Justice is
stuck in a bad place, he needs Justice Scalia and Thomas, but he also
needs to make the opinion moderate enough to get the vote from Justice
Kennedy and his own admission of unwilling to overrule precedents.
–Chee Foong Chew
Comment by chri1720 — July 25, 2007 @ 12:28 pm
Matthew Friendly: Yes, I stand by my characterization of Justice Thomas. It is based largely on his shallow reasoning in written opinions that does a poor job of persauding even his colleages and shows a poor understanding of the larger context of statutes when he interprets them (his pre-SCOTUS opinions were even worse).
While you appear to be taking a Goldwater-like “extremism in defense of virtue is no vice” approach to his jurisprudence, his tin ear for even long standing understandings of what certain provisions of the constitution mean takes him far from both the umpire model of jurisprudence to which so many conservatives purport to aspire, and from the purposive tradition oriented jurisprudence that sees the constitution as having an underlying political theory that is intends to carry out that needs to guide the continuing development of a constitutional tradition, which most liberals tend to favor.
Of course, that is really beyond the scope of the orignal post here. Also, thanks for correcting the Eid DOB data. I made a quick and dirty guess based on graduation dates in her biography, as I didn’t have the actual DOB close at hand.
Comment by Andrew Oh-Willeke — July 25, 2007 @ 1:40 pm
Thomas Griffith and Edith Brown Clement
Griffith and Clement have known abortion positions. They would be tarred as Roe-overturners.
I never said Gorush isn’t brilliant. But those articles would be ripped apart and thrown in his face.
Comment by Jacques McKenzie — July 25, 2007 @ 2:30 pm
Matthew Friendly: I believe bringing coalitions together isn’t always political in nature, coaxing and persuading your collegues to change his view and join yours is an important quality of a justice.
On an unrelated note, why do some of us on this board thinks that Justice Souter would be first to retire?
-Chee Foong Chew
Comment by chri1720 — July 25, 2007 @ 2:33 pm
Jacques:
You must be confusing Edith Brown Clement with Edith Jones, both judges on the Fifth Circuit. Jones has clearly come out against Roe. Clement has no such voiced opinions.
As for Griffith, as a judge on the DC Circuit, he would have had no opportunities to rule on anything abortion related, so I’m not sure why you think he has rendered any such opinion. The DC Circuit rarely if ever hears cases with any sort of social issues implications. To my knowledge (and I have research most of these people), he has never voiced any position with regard to Roe and/or abortion, which is one of the reasons he received more than 70 votes for confirmation.
Comment by Matthew Friendly — July 25, 2007 @ 3:02 pm
Matthew Friendly, all of the points I mentioned are traits often sought in judges (e.g., respect for precedent, ability to find compromise, resolving cases on the narrowest grounds). A judge/justice who does not value these traits might reasonably be called “mediocre” by those who do.
It’s notable that, although President Bush had high praise for Justice Thomas during the campaign cycle, he’s had two opportunities to appoint another justice in that mold, and he did not do so. We haven’t had as much time to observe Chief Justice Roberts and Justice Alito, but so far neither of them has emulated Justice Thomas’s approach to the law. Obviously they are conservatives too, but their approach to the craft of judging is simply different.
Comment by Marc Shepherd — July 25, 2007 @ 3:04 pm
Andrew Oh-Willeke:
Again, you sound like Harry Reid: ill-informed of the substance of Thomas’s opinions but jumping on the bandwagon nonetheless. Next you’ll be citing cases as examples of his “shallow” reasoning where he didn’t even write the opinion, or where it was a unanimous opinion. Go back, READ some of his opinions, and then make honest arguments against his abilities. Don’t simply parrot the “Thomas is an intellectual lightweight” garbage that passes as truth in elitist circles. Do some actual research and work.
Comment by Matthew Friendly — July 25, 2007 @ 3:08 pm
Matthew,
Thanks for the ignorant distortions. I am not confused.
Griffith’s opposition to Title IX would be converted into hostility to women’s rights in general, including abortion. Not to mention Griffith compared himself to Rick Santorum.
http://www.now.org/issues/judicial/griffith.html
And conservatives trying to read the tea-leaves have concluded that Clement would be a reliable social conservative, more so than O’Connor and Kennedy. That certainly puts her in the “dismantle Roe” column.
http://www.redstate.com/story/2005/7/19/102823/364
Comment by Jacques McKenzie — July 25, 2007 @ 4:46 pm
I know for a fact that Judge Lee Rosenthal is on the Republican’s list because a good friend of mine related to her told me that she was interviewed at one point by the Whitehouse during the Rhenquist/O’Connor vacancies. Admittedly, she was born in ‘52, making her a prime candidate in 2005 but now a rather old appointee.
–Kedar Bhatia
Comment by kedarbhatia — July 26, 2007 @ 12:13 pm
I agree with Tom about Souter: he’s on the way out. I could see him holding out for another four years if a conservative republican president is elected in ‘08, but if a moderate republican (Giuliani) or a democrat is elected, I think he’ll be out of here, especially if Stevens leaves first, which would make him the senior member of the liberal wing (and responsible for writing dissents in 5-4 rulings).
–Erik Rice
Comment by Chice — July 26, 2007 @ 11:31 pm
I’d second the question raied by “rufus peckham” upthread as to why Diane Sykes isn’t on your list, Tom?
Comment by Simon Dodd — July 26, 2007 @ 11:36 pm
Erik:
Why do you think Souter is on the out? He seems healthy and have settled on his role as an associate justice pretty well. He may act like a reclusive person, but he seem engaging enough during oral arguments.
But given the performance of the supreme court this year, I doubt the senate democrats will allow another conservative pass them even if a republican president is elected.
-Chee Foong Chew
Comment by chri1720 — July 28, 2007 @ 9:53 am