Legal Commentary

The legal blogosphere is buzzing over this weekend?s NY Times op-ed about the presidential candidates and their likely picks for the Supreme Court.  The line in the editorial that seems to be getting the most attention is the following prediction:   "As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall."

The op-ed has sparked debate as to whether a new Breyer would adequately balance the recent conservative appointees.  And Orin Kerr has questioned whether Obama would, in fact, be more likely to select a more moderate Justice.  Kerr cites to a February article from Slate, in which Obama legal advisors (and law prof rock stars) Martha Minow, Larry Tribe, and Cass Sunstein reject the idea of appointing a judicial moderate.  But that same article described a previous interaction between Obama and these advisors in which he didn?t take their advice, and Minow conceded that Obama?s approach was ?not just more politically resonant but better conceived.?  That makes me doubt that we can rely on those same advisors? views about the Court in predicting whether Obama would appoint a Breyer or a Brennan.  He seems quite confident in his own opinions on such issues.

I don?t pretend to know who the two candidates will appoint to the Court, but I certainly enjoy the coverage!  Feel free to post your own personal picks for the candiates in the comments --- an accurate prediction will give you fantastic bragging rights.