Academic

A Good Washington Lawyer Can Explain It To You

By Gordon Smith, Christine, Hurt, Vic Fleischer, Fred Tung, Lisa Fairfax, David Zaring

Supreme Court advocate Tom Goldstein has been saying since February that Justice Stevens would retire, Justice Ginsburg wouldn't, Elena Kagan would be the nominee, and that she would be confirmed; he's even predicted the Senate vote very plausibly.  Right - so far - on all counts, and you certainly haven't gotten that kind of certitude or reliability from the prediction markets (Intrade had her odds at 30% in April) or other, more quantitative measures (this interesting piece by Nate Silver on Kagan and race seems to have awfully inflated faculty sizes).

Tom's very smart, so this is no knock against him, but one thing about the last few Supreme Court nominations, with the possible exception of Samuel Alito, is that they hearken back to the days when dealing with Washington legal matters was an inside game in which few played, and those few understood perfectly how it worked.  They were the people you needed to hire.  The Supreme Court is still that kind of a world, where Linda Greenhouse says the seventy cases they take each year are the only 70 worth hearing (the Court took closer to 200 a year in the 1980s).  Where outside the box nominations don't happen.  Where the resumes are perfect and the people a little bloodless.

And, of course, that's not the way a lot of the rest of the world works.  Thousands of people would make perfectly adequate Supreme Court justices and those who really shine are hard to pick out, which is how I assume venture capitalists think about their industries.  It even applies in law: Supreme Court clerks sometimes become heavy hitter law firms partners and legal academics, but people without those bona fides are more likely to break out (one reason is because there are so many more of them).  But at the Supreme Court, inside baseball is the only kind of baseball that's played.  I think that's why the reactions to the Kagan and Sotomayor nominations have been tepid (though that wasn't the case for John Roberts).

Full post as published by Conglomerate on May 10, 2010 (boomark / email).