The Democrats' List of Potential Supreme Court Nominees-- And a Few Words About the Growth of Legal "Farm Teams"

JB

Tom Goldstein was puzzled that only conservative bloggers responded to his very interesting post on likely Democratic candidates for the next Supreme Court seat. Tom suggested that it was because "conservatives recognize the importance of judicial nominations much more than do liberals."

I'm writing this post out of my respect for Tom, and so he doesn't feel unduly neglected from the other side of the political spectrum!

Tom's suggested explanation is not particularly plausible. It's simply not true that liberals don't recognize the importance of judicial nominations as much as conservatives. They recognize them plenty well. If there were any doubts, the last Supreme Court Term brought home the point that elections have consequences, and one of those consequences is judicial appointments. Democrats were very upset at Bush v. Gore for many reasons, but one was that they understood its potential consequences for the Supreme Court-- the Supreme Court would pick the person who would pick their successors. And during President Bush's first term in office, Democrats, while in the minority, filibustered several of President Bush's judicial nominations because they understood all too well that appointments matter. Finally, if we limit ourselves for the moment only to the members of this blog, Sandy Levinson's and my theory of constitutional change, partisan entrenchment, is primarily concerned with the effects of judicial nominations.

Reading the conservative responses Tom also suggested that "There was a repeated view (not surprising from conservative sites, but not entirely meritless) that the left lacks great "heavy hitting" intellects comparable to,for example, Posner, Kozinski, etc." This is perhaps an even more implausible claim. Many of these so-called heavy hitters were placed on the bench from the legal academy. As conservatives are fond of pointing out, liberals currently dominate the American legal academy.

The sheer greater number of liberals in the legal academy has the following predictable consequence: Although conservative scholars have admirably made up for lost time in the past two decades, liberals still constitute a majority of the leading intellectual figures in law in the United States. (I will forebear from offering names out of a desire not to annoy all of my acquaintances in the legal academy who would understandably be aggrieved if they were left off such a list. Just believe me, they are legion.)

The Democrats need only do what Ronald Reagan did-- park some number of the key figures in the liberal legal academy on the circuit courts during the first few years of the next Administration-- and they would have as deep a bench of talent for the Supreme Court as they wanted. Some of the leading liberal lights are too old, others have said things that would make them unconfirmable to the Supreme Court (a trait which they share, by the way, with such heavy hitters as Judge Richard Posner). But there are simply so many very bright and able liberal law professors and former Justice Department lawyers between the ages of, say 40 and 55 that it would take little work to stock the federal courts with them if the next President, working with a Democratic Senate, wanted to. Similarly, a Democratic President will no doubt appoint people to high Justice Department and other Administration positions who would immediately become plausible candidates. (Think of Clarence Thomas's example.).

Thus, Tom's list is fine as far as it goes: it focuses on the existing federal judiciary and law Deans of a few top schools. But if the Democrats take the White House, and make some of these appointments I've just mentioned, the composition of the list will change rapidly. Since John Paul Stevens' appointment in 1975, Supreme Court Justices have mostly been taken from the ranks of sitting jurists. The Democrats may buck that trend, and I for one would encourage it. But if they follow existing practices, we won't really be able to know who are the most plausible members of "the list" until we see the first round of lower federal court appointments (and Justice Department appointments) of the next Democratic Administration. And that will depend, I suspect, on who the Democratic nominee is, as Clinton's, Obama's, and Edward's lists might differ in interesting ways.

In this sense, liberals really are in a different position than conservatives. With only 8 years of Democrats in the White House in the past 27 years, the Democrats are in much the same position that Ronald Reagan was when he and his movement conservative allies took office in 1980. Many of the older experienced Republicans were relative moderates who were not part of the movement. Thus, Reagan had to immediately invest in growing a farm team that would last for an extended period of time. I suspect that is precisely what the next Democratic President will do.

Indeed, Reagan and Ed Meese not only quickly staffed the Administration and the judiciary with movement conservatives, they also played for the long term, by using the Justice Department to train a cadre of young very bright and very able conservatives who could take leadership positions decades later. They also encouraged the growth of the Federalist Society to help create networks for ambitious young people who could serve in Republican administrations, in the legal academy and the federal judiciary. Chief Justice Roberts and Justice Samuel Alito are only two examples of how that long term investment paid off. If the Democrats are wise, they will follow Reagan's (and the conservative movement's) example.
Posted 7:06 PM by JB [link]