What I Meant to Say About the Presidential Election and the Court

As announced, I was on "The Takeaway" this morning, talking about the effect of the election on the Supreme Court. At least I was on the second try. While I was waiting to come on the air, one of my daughters accidentally put another extension of the phone on, and so I got cut off when the producers of the show heard her and her sister discussing High School Musical or some other weighty subject. When I finally did come on, there was less time than expected---or so I surmise in retrospect from the fact that the hosts appeared impatient with my thorough answers. Or maybe I'm just longwinded. (Update. Link for audio now works.)

Anyway, one effect of my poor clock management was my inability to use my one prepared zinger. Anticipating a request for specific names that might be on the list of possible Obama and McCain Supreme Court appointees, I planned to say something like the following with respect to McCain:

Throughout his career, Senator McCain has not been especially interested in the courts, but Republican Presidents tend to use judicial appointments to shore up support from the social conservative base of their party. Therefore I think that a President McCain might nominate Daniel Winfree.

Interviewer: Who is Daniel Winfree?

Me: For almost a year now, he has been a Justice of the Alaska Supreme Court. He was appointed by Governor Palin.

Actually, I almost certainly wouldn't have said that, in part because I have no idea whether Justice Winfree is a social conservative. (Hey Alaska readers: What's his story? Gov Palin's press release certainly makes him look like a respectable and respected fellow.) More importantly, it's not quite accurate to say that social conservatives control judicial appointments under Republican Presidents. When they can get a social conservative through the Senate (which seems to be whenever there are fewer than 60 Democrats there), Republican Presidents typically try to do so, but the actual selection process has generally been run by what might be called the Washington conservative legal establishment, and as I have argued in my academic work, they like to pick insiders who have proven their bona fides to the conservative legal establishment working in Republican Administrations. The unhappy result of President Bush's circumvention of the conservative legal establishment in his nomination of Harriet Miers will only reinforce the importance of sticking with the formula.

On the Democratic side, the Clinton playbook is fairly straightforward: Pick very-well-respected federal appellate judges who have a history of getting along well with conservatives (the Ginsburg/Scalia friendship is legendary and Breyer was well-regarded by Republicans for his work on airline deregulation) but will be reasonably liberal on the key social issues. If he wins, Sen. Obama will certainly have options that fall into this category, and I'm willing to say for the record that the front-runner for the first seat on the Court in an Obama Adminstration would be Second Circuit Judge Sonia Sotomayor. She was first named to the district court by Pres. George H.W. Bush (albeit under a deal between then NY Senators D'Amato and Moynihan, with Moynihan actually putting her on the list) before being elevated to the appeals court by Pres. Clinton. There is only one woman on the Supreme Court now. And Sotomayor would be the first Hispanic Justice.

Subsequent picks (if any) by a President Obama are harder to handicap. Many people would like to see someone with a broader resume than federal appellate judge. Sen. Hillary Clinton would be an intriguing choice among politicians, and while she's certainly up to the job, she strikes me as someone who would enjoy the Court less than her current job. A colleague has suggested Mass. Gov. Deval Patrick, who is a terrific lawyer and thus also would do well. It seems VERY unlikely that any President would name an academic without at least first seasoning that academic with a judgeship.

Posted by Mike Dorf