Comments on: The Democratic (Not So) Short List

By: Jack Mitchell

Jack Mitchell — Tue, 08 Apr 2008 02:43:51 +0000

Disagree on Deval Patrick. Given the partisanship of Congress, which requires searching judicial inquiry, only the squeaky clean pass. Patrick’s abused funds to buy himself a Cadillac , put his wife’s friend on the payroll for doing no work, and his wife’s been spending the government’s money for private use. He also had the big failure recently with the casino in Mass, an embarrassment for him. And academically, he’s very weak; probably even weaker than Thomas was at the time of his nomination.

Patrick won’t make it past the vetting stage. Once a Dem White House tries setting up murder boards for a corrupt pol who loves gambling and socialized medicine, can’t work a compromise politically to save his life, and hasn’t any academic standing, they’ll realize that just because he’s a visible and connected black politician doesn’t mean he’s Supreme Court material.

By: Michael Andersen

Michael Andersen — Tue, 25 Sep 2007 16:16:33 +0000

Justice Obama ... of course. I wonder if he'd take it. And David Stras: I assume Goldstein is reacting to the reports that Souter is disaffected from the court and has already considered stepping down.

By: Joe Paulson

Joe Paulson — Sat, 14 Jul 2007 23:50:05 +0000

Many past justices have have some of the life experiences Daniel Thomas suggests. At least one lawyer has stated elsewhere that such sentiments are totally appropriate, the appellate judge model just too narrow by this point.

Not that I think this is the only important matter, but yes, even if the party I don’t want to win wins, I would like this to be a factor. BTW, a few Dem. candidates had a chance in one of the debates to answer a question respecting who their ideal justice type is. Bill Richardson actually said Byron White. Edwards favored Ginsburg/Breyer.

I’m not sure Clinton got to answer the q., Obama did not.

By: Jacques McKenzie

Jacques McKenzie — Fri, 13 Jul 2007 17:47:57 +0000

that assumes that the meaning of a statute is conditional on the life experiences of the jurist

Does legal meaning exist in an ideal plane?

By: Simon Dodd

Simon Dodd — Fri, 13 Jul 2007 00:33:11 +0000

I don’t honestly know which is more horrifying, Tom’s list of potential nominees, or Daniel’s eye-popping suggestions (perhaps the most telling and risible being the theory that “the court has become mired in ‘law think’”: this is much like saying that Tiger Woods lost the U.S. Open this year because he is mired in “Golf Think”). Daniel yearns for a Justice who, “regardless of [their] ideology,” has “been homeless for some part of their life, worked at McDonalds or Wal-Mart for a number of years, or even been a professional poet,” overlooking that whether one considers the relevance of such life experiences is itself ideological, in a jurisprudential sense. That is, presumably Daniel believes that the experience of being a poet or what have you might change the way a Justice looked at laws (if it didn’t, what would be the point of the exercise?), but that assumes that the meaning of a statute is conditional on the life experiences of the jurist. Which is, to be sure, one view of law, but it’s still a view of law.

By: Michael Krupen

Michael Krupen — Fri, 13 Jul 2007 00:27:00 +0000

Daniel-

I found someone who meets your profile-
http://new.stjohns.edu/academics/graduate/law/faculty/profiles/Joseph

By: Daniel Thomas

Daniel Thomas — Thu, 12 Jul 2007 23:09:41 +0000

I know that I may get some flack for this comment but personally I would like to see some SCJs whose primary set of life experiences are not in the field of law. My own perspective is that, left or right, the court has become mired in “law think”. This is my greatest worry about appointing yet another rather youthful SCJ. While it is important to understand the law and legal formalities, the SC often lacks (again, IMHO) a sense of “reality”. By this term I mean life as it is lived by the vast majority of people in America. I was deeply bothered by Tom’s comments that a particular Federal Judge was “not seasoned” enough. I think they are all seasoned way too much. Holmes said that expereince is the life of the law. But I think he thought, as a person who fought and was wounded several times in the Civil War, of this expereince as something more than merely legal expereince. It would be nice, for example, to have a SJC (regardless of ideology) that had been homeless for some part of their life, worked at McDonalds or Wal-Mart for a number of years, or even been a professional poet.

If I were President (which I won’t be) I would look at Tom’s list and exculde them all by default.

By: David Stras

David Stras — Thu, 12 Jul 2007 21:55:43 +0000

Tom,

By the way, I think you are right that if Hillary Clinton wins, the first nominee would be Kim Wardlaw. My money on the second, though, would be Merrick Garland, but my guess is not any better than anyone else’s.

By: Jacques McKenzie

Jacques McKenzie — Thu, 12 Jul 2007 20:02:16 +0000

Then again, a relevant consideration is “How aggressively is the nominee going to articulate a coherent liberal jurisprudence?” Finding a lefty version of Scalia to blast the right and get opinions into law school casebooks is what Democrats should be aiming for if they care about politics and partisan entrenchment to their benefit.

By: Jacques McKenzie

Jacques McKenzie — Thu, 12 Jul 2007 19:56:53 +0000

Eliot Spitzer would face serious opposition to his confirmation.

By: Andrew Oh-Willeke

Andrew Oh-Willeke — Thu, 12 Jul 2007 19:07:35 +0000

Even the whisper that a Democratic Presidential nominee for the 2008 election would consider Ken Salazar seriously for a U.S. Supreme Court nomination would probably deal a serious blow to that candidate with the Democratic party base.

Ken Salazar is one of the most moderate U.S. Senators in office on social issues, and was instrumental in supporting Alberto Gonzales as Attorney General and in preventing a filibuster against President Bush’s conservative judicial nominees, including Justice Alito. He has tried to tow a middle ground on abortion, and permitted the Military Commissions Act of 2006 to become law by refusing to filibuster it.

While Salazar might very well look like an attractive nominee to a Republican seeking to secure swift confirmation in the face of a U.S. Senate controlled by Democrats determined not to allow another true conservative on the Court, every almost progressive in the Democratic party coalition would feel deeply betrayed by such an appointment.

By: David Stras

David Stras — Thu, 12 Jul 2007 19:02:07 +0000

As you know, Tom, I am busy researching at the Library of Congress, so I haven’t given this post the level of thought it deserves yet. I find this type of speculation interesting though.

One question immediately pops to mind: Why do you have Justice Souter retiring first, in 2009? Although Justice Stevens is still pretty spry considering his age, I would still bet on him being the first liberal justice to go, with Justice Ginsburg possibly the second. I would frankly be surprised if Justice Souter retired at all during the first term of a potential Democratic Presidency, but would not rule out the second.

By: Roger Friedman

Roger Friedman — Thu, 12 Jul 2007 17:17:18 +0000

This is from Today's Round-Up: Meanwhile, in the LA Times, Brian T. Fitzpatrick has this op-ed on the Supreme Court's reversal rate of decisions made by the 9th Circuit Court of Appeals and what should be done to lower the high numbers. They suggest splitting the 9th Circuit, but appointing Judges Rawlinson and McKeown to the Supreme Court would also work, as would 4 new Bush appointees to the Ninth (Bybee, Ikuta, Smith & Smith) (as shown by Judge O'Scanlainn's poke at Judge Reinhardt over AEDPA, as discussed in this blog yesterday, which just dares Reinhardt to take it en banc.

By: David.Huberman

David.Huberman — Thu, 12 Jul 2007 16:00:35 +0000

Fun stuff, Mr Goldstein – bravo!

I disagree with your limiting of Dean Sullivan to consideration as the next SG, rather than as Associate Justice. You indicated this was because she didnt have Judicial or Executive Branch experience, but I think that thought is a bit unfair considering Dean Sullivan’s extensive CV, reflecting a lifetime of dedication to constitutional law practice and scholarship.