Legal Commentary

Beldar's take on the current SCOTUS buzz

By Beldar

Another [senior administration official] said that there have been several meetings but that the White House has not much shared its point of view. Still, one outside source said the president's preference is less apparent than at the same point a year ago, just before he nominated Sotomayor. "Last time around, you knew Sotomayor was going to be the candidate," the person said. "She was such a home run on so many different counts.... I would say this one is much, much, much more difficult for them."

So reports the WaPo, in what I think was probably an unintentional episode of damning by faint praise.

The Hon. David Souter, retired Associate Justice, was reliably a Lefty vote, but he generally lacked any significant influence beyond his single vote. Justice Sotomayor was an almost perfect replacement for him ? and by "perfect replacement" I mean "perfect match." She was picked on the sole basis of identity politics, and I suspect all that "wise Latina" superiority stuff has been politely ignored, but has not been quite forgotten, by her new peers.

Indeed, I have a comparatively higher opinion of each of the people supposedly on Obama's current short list than I do of Justice Sotomayor, and I think any of them would have a better shot than Justice Sotomayor at satisfying what ought to be a liberal Democratic president's strategic goals in making a SCOTUS appointment. That is to say, I think Obama essentially wasted his pick on Justice Sotomayor. And I think that any of the people now supposedly under consideration would have at least a chance of becoming a Justice with more influence than Souter wielded or Sotomayor is likely to wield. I doubt any of them would ever become as influential as was, say, Justice Brennan or even Justice Douglas, but they might manage, if they're fortunate, to mostly fill Justice Stevens' liberal shoes as someone who could definitely hold his or her own.

Of the names being floated, I think Judge Diane Wood of the Seventh Circuit is the most likely to be able to influence other votes, especially that of Justice Kennedy ? albeit in directions I'd mostly rather not see those votes go. (I can't deny that part of me would also prefer to see Judge Wood get the pick because she and I both took the UT-Austin/Plan II to Texas Law School career path, but that's my own flawed version of "identity politics" talking.)

Both as a political conservative and an opponent of judicial activism, I'd be least concerned about Solicitor General (and former Harvard Law Dean) Elena Kagan ? which is another way of saying I don't think she'd end up being very much more influential than Sotomayor and that she'd probably be less influential than almost any "average" liberal circuit judge. (That includes either Merrick Garland or Sidney Thomas, the two white male circuit judges whom Obama has given what I firmly believe are only "courtesy" interviews. He might pick someone white, but he won't pick someone white and male.) So I'm mostly rooting for Obama to pick Kagan.

For what it's worth, my worst-case scenario is still another Harvard product, Cass Sunstein. I actually think the sort of schmoozing, fund-raising, and deal-brokering that Kagan is supposed to have been good at when she was the dean at Harvard isn't likely to be nearly as effective at the SCOTUS. Sunstein is a genuine dynamo of ideas ? many of them absolutely terrible ? and I think his stature as an academic superstar is far more likely to impress Justice Kennedy than Kagan's status as a mere dean, which (after all) is an administrative job.

Were I a senator, I would probably vote against anyone Barack Obama nominated; he in particular, by his own votes against Dubya's Roberts and Alito SCOTUS nominations, forfeited the legitimacy from which he could have argued that a president ought to be able to get confirmation votes for well-qualified nominees regardless of partisan politics. But I wouldn't filibuster any of the four currently supposed to be the front-runners. I don't believe filibusters are appropriate for judicial nominations, and I'm not going to change that principled position (which I believe to be firmly rooted in the Constitution) to retaliate against Dems who've abused the filibuster during the Bush-43 and Bush-41 administrations.

I would try to make best possible use of her or his confirmation hearings to expose liberal positions taken by anyone who Obama might pick, but frankly, any Democratic nominee is going to follow the same playbook Sotomayor did ? that is, dissemble about his/her own real views and pretend instead to be John Roberts.

All SCOTUS nominations are important, but comparatively, this one is not nearly as important as will be the nomination for Justice Scalia's successor. I'm therefore going to divert into a more productive use ? specifically, good wishes for Justice Scalia's continued health and vigor and clear writing ? some of the mental energy that I might otherwise expend worrying about this particular pick.

Full post as published by BeldarBlog on May 09, 2010 (boomark / email).