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Assessing the Supreme Court Short List:
On Slate, Emily Bazelon and David Newman summarize the records of judges reputed to be on The Supreme Court Short List. (Hat tip Instapundit.) Some useful background information, though the conventional wisdom (CW) about these matters is often wrong. I also think it is going to be very hard to predict whether any particular Bush nominee is going to be a Scalia-type judicial conservative, or a Thomas-type originalist/federalist. Bazelon and Newman (like most everyone else) pay no heed to the difference. Will the President?

By "judicial conservative" I mean a judge who advocates great deference to the majoritarian legislative branches, and who would enforce only enumerated rights. Such a judge might also be reluctant to enforce even enumerated rights against the states.

By "originalist/federalist" I mean a judge who believes in reading the text according to its original meaning whether that leads to upholding or striking down particular legislation. Such a judge might also be more open to the enforcement of the unenumerated rights against the federal government (via the Ninth Amendment) and enumerated and unenumerated rights against the states (via the Privileges or Immunities Clause).

I do not mean to suggest that either Justice Scalia or, especially, Justice Thomas fit neatly or consistently into one of these categories. And I would not place too much stress on the protection of unenumerated rights in distinguishing one type from the other. Many originalist/federalists are pretty conservative about unenumerated rights. What matters most is the majoritarianism of the "judicial conservative" and the originalism of the "originalist/federalist" as well as the latter's willingness to judicially enforce federalism limitations on Congress. Still, in Troxel v. Granville, Justice Scalia dissented from the protection against a state of the unenumerated right of a parent to raise her child as she saw fit, while Justice Thomas was in the majority.

I have enabled comments for those who have a knowledgeable take on any of these candidates, or on Bazelon & Newman's analysis. (This is not the forum to debate the merits of, or relationship between, judicial conservatism and originalism/federalism.) I am especially interested in learning from those who have knowledge of any of these judges if they think the judge they know to be more "judicial conservative" or majoritarian like Scalia or more "originalist/federalist" like Thomas. When a nominee is selected, I am almost certain to be interviewed, as will other law profs on the VC. We could use as much information on which to base an opinion as possible.
Thorley Winston (mail) (www):
Professor Barnett, I noticed in your description of "judicial conservative" and "originalist/federalist" you left out any mention of the respective candidate's position on the Enumerated Powers. Should we infer from that you consider their positions to be identical or that a "judicial conservative" would have a different position from an "originalist/federalist"?
6.27.2005 5:39pm