By Mike Dorf
One of the supposed desiderata of a Supreme Court nominee is the ability to build consensus for a position. According to what is becoming conventional wisdom, people interested in seeing the Court move to the left (or right) would do better with a moderately liberal (or conservative) Justice who can attract swing Justices than with a firebrand who will cast votes that are individually farther left (or right) but who will alienate those in the middle, and thus move the Court as a whole in the other direction. Here I want to question the ability of any President to act on this supposed wisdom.
To begin, the current Court doesn't have swing Justices. It has one swing Justice, Anthony Kennedy. On the issues that exercise political activists (e.g., abortion, affirmative action, gun control, school prayer, detainees), as Kennedy goes, so goes the Court. Thus, a President interested in reaching other members of the Court is really simply interested in reaching Justice Kennedy. How? A President might try naming someone known to have Justice Kennedy's ear or some other pre-existing relationship with him--a former law clerk, say. But that's a very short list of people who are probably unconfirmable and otherwise not ideal nominees. And anyway, the move would be so obvious as likely to backfire when Justice Kennedy realizes, as he would just about instantly, that the new Justice had been named to the Court specifically to woo him. Other approaches to the same end seem equally silly. Suppose the swing Justice had some particular hobby--playing tennis, for example. The President could name another tennis player in the hope that the new Justice would bond with the swing Justice over tennis, but what are the odds? Justice Stevens is a tennis player, as was the late Chief Justice Rehnquist. So far as I am aware, neither had any special influence over the other as a result of their shared interest in the game.
A President might, alternatively, seek a Justice with experience working well with others. This is potentially useful advice as a principle of exclusion: Don't name a Justice who is a known jerk. Reportedly, Felix Frankfurter annoyed his colleagues by lecturing and condescending to them. This probably cost him votes. Various writers have suggested that Justice Scalia has sometimes had the same effect on his colleagues, but I'm dubious. He's personable and charming. True, his opinions and dissents can be strongly worded, but that's likely to be dismissed by colleagues as simply, as it has been reported, "Nino being Nino." In any event, no one whose name has been floated thus far comes close to failing what Bob Sutton colorfully calls the "No Asshole Rule."
Is there, then, some experience that would demonstrate extraordinary ability to get along with people of different views? Arguably Elena Kagan's successful stint as Dean of Harvard Law School--when the school broke its ideological logjam over faculty appointments--shows her to have what it takes. But then it wasn't Kagan's job to persuade any of her Harvard colleagues to change their views on any substantive issues. Indeed, quite the opposite: She succeeded by making clear that diverse viewpoints were welcome. Meanwhile, the appellate judges on the list have had to get along with judges of different views too. Here perhaps we could use some number-crunching: Did conservative judges on panels with Judge Wood, Judge Garland, or Judge Thomas swing liberal more often than when on panels with other, equally liberal judges? (White House: If you're reading this, assign an intern to the research task, pronto!)
The idea of swinging the middle Justice(s) is sometimes invoked as a justification for naming a politician but note that here we run into a different problem: The politicians on the presumed medium-sized list--Jennifer Granholm and Janet Napolitano--both have had careers as executive officials in which they would have had people working for them (and now they work for the President), but unlike legislators, they didn't have colleagues with independent and equal power bases. They probably have generic political skills but nothing that's obviously an advantage over the skills possessed by the other medium-listers. And Granholm was born in Canada!
So bottom line: President Obama should make sure he doesn't name another Justice McReynolds but beyond that it's hard to see that he will be able to predict who is likely to be the most influential.