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Justice Breyer Offers Some Thoughts on the New Court:
The Associated Press has the very interesting story, via Howard.
HLSbertarian:
"Supreme Court Justice Stephen Breyer said Tuesday the high court has more discussion and debate behind closed doors with its two new members.

Breyer, though, said the court 'seems to be running very well' under Chief Justice John Roberts, and he doesn't think the extra discussion is a major change."


This may be nitpicking, but does the AP think that a well-running court is not a natural result of "more discussion and debate"?

The story also offers a great lesson on the passive voice: "[Roberts] also is considered a conservative protege of the late Chief Justice William Rehnquist, whom he replaced."

Oh, and I'm glad Breyer seems to think video cameras are on their way. That would be stellar.
3.8.2006 12:43am
Kovarsky (mail):
Breyer demurred when asked his opinion about the nominating and confirmation process for the nation's highest court.

"That is like asking for the recipe for chicken a la king from the point of view of the chicken," Breyer said.


That's awesome. What's with Breyer these days? Formerly a liberal pariah with overly-complicated questions, he's the new it Justice.

Also, HLSbertarian, what is the lesson on the passive voice? I don't get it. I actually don't think it makes a particularly good case for or against using the passive voice. In fact, the #1 most irritating thing about law student editing is the manic focus on not using the passive voice, even where it makes things clearer (which should be the only stylistic objective of legal writing).
3.8.2006 12:52am
Kovarsky (mail):
Also, I don't think Breyer really betrays a preference on the videocameras, he just says as a matter of descriptive fact that they're inevitable.

And what a tough issue. On the one hand, it obviously corrupts the incentives of the lawyers (although I doubt it would have much effect on the SG or the state AG's or the Justices themselves). On the other, it would go such a long way towards obliterating these absurd caricatures of the justices - scalia, breyer, and kennedy in particular. I think it would do a particular service to Justice Thomas who, if he could stay awake and would ask some questions, could show that he is affirmative action's greatest victim by demonstrating he is every bit as brilliant as the other Justices and that he is not just on the court because he is Black.

I feel like that last statement is going to draw some heavy fire. I don't agree with most things Thomas does, but the man is as smart as they come. And nothing is more irritating than people assert that he doesn't deserve to be there.
3.8.2006 1:02am
HLSbertarian (mail):
Kovarsky: PV is especially bad in a news article because it allows a reporter to slip in a debatable belief without attributing it to anyone. This is dangerous in straight-up new reporting, especially when this belief is a characterization (like "conservative protege"). I don't deny that PV has its uses, especially in legal writing, but a great many writers never learn its proper place and would be better off avoiding it altogether.

And if your second comment was also addressed to me, I never said Breyer betrayed a preference. On the larger point, I would expect the Justices to crack down hard on any preening by the lawyers before the cameras. I think getting scolded like a schoolboy on national television would be a sufficient deterrent.
3.8.2006 1:27am
Kovarsky (mail):
HLSbertarian,

I completely agree with you re: the use of passive voice to obliterate the impression of agency. I've argued before that one of the reasons the PV is so prevalent in older legal writing is involved with the attempt to cast legal decisionmaking as an objective enterprise. The passive voice was subconsciously accepted (~0) because it obscured issues involving subjective authority of interpretation.

I just happen to not think that sort of thing is at stake here - who thinks Roberts is a protoge isn't really important because I don't think the people that believe this are skewed in any meaningful way (although I think the description utterly inaccurate - the former chief's social conservatism was much more evident in his jurisprudence than Roberts' will ever be in his). But it's a fair point.
3.8.2006 1:40am
HLSbertarian (mail):
Kovarsky: Fair enough all around. I guess it might be a pipe dream that many people who should hear and understand your last point about Roberts' jurisprudence will ever receive or believe it.
3.8.2006 1:50am
Grand CRU (mail):

I think it would do a particular service to Justice Thomas who, if he could stay awake and would ask some questions, could show that he is affirmative action's greatest victim by demonstrating he is every bit as brilliant as the other Justices and that he is not just on the court because he is Black.



Clarence Thomas has stated unequivocably before that he does not ask questions for three reasons. One: Standard English is not his native tongue; his first language is Gullah. Two: He only asks questions if he has something to say that other Justices have not covered. Three: He gains more from listening than he does by speaking. As anyone who has attended law school can attest, the silent student in the back is usually getting better grades than the loudmouth in front.

If you would like to see Clarence Thomas engage in an extended dialogue, then read the transcript to Georgia v. Randolph, where he spars with Thomas Goldstein. What's more, watch one of the question and answer sessions with Washington DC students he has given. They are available on C-SPAN. (I will not link to these for you; if you are indolent, that is your own affair.)

As for the ridiculous charges that Clarence Thomas had no judicial philsophy when he was nominated for the Supreme Court, those who make that claim have a hard time explaining why Joe Biden held up a copy of Richard Epstein's Takings during Clarence Thomas' hearings and then proceeded to quiz him on it. One would also have a hard time explaining why Democratic Senators asked so many questions of Thomas during his confirmation hearings concerning natural law theory. Classic liberalism and public choice theory and natural law theory are all components of Thomas's judicial philosophy: How strange for a man purported to have no judicial philosophy!

The claim that Clarence Thomas is a victim of affirmative action is rooted in the belief that he had no identifiable judicial philosophy or intellectual credentials when he was nominated for the Supreme Court. Except he was known within conservative circles, especially the DC think tank circuit, for being a proponent of natural law theory, such that he had acolytes. One does not acquire a reputation as an intellectual amongst intellectuals because of the color of one's skin.

Did his skin color play into the decision to nominate him? Yes. Does his skin color negate his intelligence? No. Does the fact that his skin color played a role in his nomination suggest that he would not have been picked otherwise? No. In what sense, then, is he a victim, other than that people -- namely, liberals -- suggest that he is dumb because he is black and that he is so dumb he could not have been nominated for the Supreme Court for any reason but the fact that he is black? You know, instead of calling him a "victim of affirmative action", Kovarsky, you might as well just call him a nigger, because it is quite apparent that's what you mean.

As for Roberts' conservatism being less salient than Rehnquist's, there are obvious reasons for it. One: the country is more conservative now than it was when Rehnquist first became Chief Justice. Two: Rehnquist was a part of the uphill battle of the Goldwater revolution; Roberts camped on the plateau of the Reagan establishment. The times that shaped Roberts required less extremism of him. Rehnquist was a rebel; Roberts a diplomat.
3.8.2006 3:57am
Medis:
Grand CRU,

I think you completely missed Kovarsky's point. Kovarsky was saying that Thomas is actually brilliant and fully deserves to be a Justice. And Kovarsky is claiming that he is a "victim of affirmative action" precisely because allegedly some people assume he is less qualified, when in fact he is not. So, you are actually just agreeing with Kovarsky.

Although personally, I think you both might be wrestling with straw men.
3.8.2006 4:37am
JLR (mail):
Justice Breyer's analogy to chicken a la king is a great rejoinder -- one he has used in the past (on This Week with George Stephanopoulos, for example) to great effect.

I've always thought Justice Breyer's reputation deserved to be much better than it is. Some blogospherians (to use a neologism) like to rip him for his supposed inability to be clear when speaking. I've always found him to present compelling ideas in his opinions and speeches, and found him to be perspicacious during oral arguments. Justice Breyer appears to be one of the more dynamic Supreme Court Justices, a Justice who truly enjoys being on the lecture circuit, as well as understands the reasons for having his lectures and Q&As televised for the benefit of the C-Span audience (of which I am a member).

Interestingly, I have an inkling that Justice Breyer was greatly influenced by Justice O'Connor, and is likely to take up her mantle of the pragmatic, "deal-making" Justice -- a mantle that Justice O'Connor held, and a mantle that Justice Powell held before her.

That might lead to more decisions along the lines of Gratz v. Bollinger (the U of Mich undergraduate affirmative action case in which Justice Breyer joined Justice O'Connor and the four dissenters in Grutter to strike down the undergrad affirmative action policy for being too much like a quota); and the Ten Commandments cases from last year (in which Justice Breyer was the swing vote, and split the difference).

Whether that's normatively a good or bad thing depends on your personal politics, as well as on your personal views about the jurisprudential methods used by the Supreme Court to decide its cases. But from a descriptive approach, Justice Breyer seems to be the key Justice to follow in the coming months and years ahead.
3.8.2006 4:55am
Kovarsky (mail):
Grand CRU,

Did his skin color play into the decision to nominate him? Yes. Does his skin color negate his intelligence? No. Does the fact that his skin color played a role in his nomination suggest that he would not have been picked otherwise? No. In what sense, then, is he a victim, other than that people -- namely, liberals -- suggest that he is dumb because he is black and that he is so dumb he could not have been nominated for the Supreme Court for any reason but the fact that he is black? You know, instead of calling him a "victim of affirmative action", Kovarsky, you might as well just call him a nigger, because it is quite apparent that's what you mean.

Whoa. You're exhibiting a fourth-grade level of reading comprehension. You misinterpreted my post so badly, I didn't even realize you were talking about me until about 2/3 of the way through. Reread my post, you breathtaking dolt. Here it is, I'll parse it for you:

I think it would do a particular service to Justice Thomas who, if he could stay awake and would ask some questions, could show that he is affirmative action's greatest victim by demonstrating he is every bit as brilliant as the other Justices and that he is not just on the court because he is Black.

The quip about him staying awake and asking questions was obviously a joke, and using those trusty 2nd grade context clues, most tv guide level readers can tell the humor in the joke does not invoke a theme of intellectual inferiority.

I said TV would be good for him because people would see how brilliant he actually is.

I said he was a victim because he is stigmatized as being a mere beneficiary of affirmative action when in reality he an extraordinary intellect.

I said he was NOT on the court because he was Black.

I said in spite of my disagreement with his judicial methodology, I respect his integrity and consistency.

I would give you the benefit of the doubt, but my post is incapable of bearing the interpretation you gave it. Your response is utterly incoherent. If you're going to accuse someone else of effectively calling someone a nigger, either reread the post or take my advice and don't trust your own judgment.
3.8.2006 5:05am
Kovarsky (mail):
Medis,

I hope it's starting to be a straw man, but my point involved which justices would most benefit from TV. If Thomas would talk more, I suspect it would be him.

GrandCRU,

I am happy to refer you to a variety of current and former Thomas clerks that would find your comments absurd in the extreme.
3.8.2006 5:08am
Kovarsky (mail):
Grand CRU,

A further piece of advice. In the event that you do at some point encounter someone that does in fact believe exactly the opposite of what I said, and you want to illustrate how powerful Thomas can be at oral argument, I probably would not overlook what is almost universally acknowledged as his singular most important verbal exchange, in Virginia v. Black, the crossburning case. Many scholars credit his oral argument remarks there as among the most influential any justice has made in the last 30 or so years.
3.8.2006 5:17am
Medis:
Kovarsky,

I understand your point, although I do wonder who would end up watching. I also think people tend to overestimate to what degree most people have any impression of Supreme Court Justices at all. Indeed, apparently 57% of Americans can't name a single Justice. Still, I gather that the same poll indicated that Thomas was the second-most named Justice among the minority who could name a Justice (after O'Connor), so that does imply that Thomas is as likely as anyone to benefit in the way that you suggest.
3.8.2006 5:18am
Kovarsky (mail):
Medis,

My logic is based on the biggest disparity between perception and reality. I'm not sure how much his overall recognizability matters to that metric. It's not clear whether the disparity would be directly or inversely correlated with his notoriety.

Speaking of Black Americans whose achievements are underappreciated by the general public, we lost a great one yesterday when Gordon Parks died.
3.8.2006 5:29am
Daniel Chapman (mail):
Could we lay off the personal insults before this forum degenerates into "your mama" jokes?

On the subject of cameras, does anyone know where you can find .jpgs of recent courtroom drawings?
3.8.2006 8:20am
Beau (mail) (www):
HLSbertarian,
"This may be nitpicking, but does the AP think that a well-running court is not a natural result of 'more discussion and debate'."
I had to read the quote at the beginning of the article twice also. I think the confusion is the reporter's fault, and I assume Breyer really meant to convey not that the Court as a whole engages in more discussion, but rather that certain members of the court engage in a larger percent of their discussion behind doors that are closed to the remainder of the justices. In other words, Breyer seems to be making a half-hearted complaint about being excluded from the private discussions of the notoriously conservative side of the Court.

Was this your read too?
3.8.2006 9:13am
Medis:
Kovarsky,

My point was mostly based on the observation that in order for there to be a gap between perception and reality, there actually has to be a perception in the first place. Along those lines, I looked up the poll results I had in mind. The Justices were named in these percentages:

27% Sandra Day O'Connor
21% Clarence Thomas
16% John Roberts
13% Antonin Scalia
12% Ruth Bader Ginsburg
7% Anthony Kennedy
5% David Souter
3% Stephen Breyer
3% John Paul Stevens

So, my main point is that given these results, it is very likely that Thomas could benefit more in your suggested fashion than, say, Breyer or Stevens. And that is because regardless of what respective percentage of people who have a perception of these Justices are in fact misperceiving them, far, far more people actually have a perception of Justice Thomas in the first place.

As a secondary point, looking at that list, I do wonder if "notoriety" is playing a role in how well-known a Justice might be. Of course, a Justice may have earned such notoriety, in which case there would not necessarily be a gap between perception and reality. Still, I think people tend to get more passionate about their least-favored Justices than reality would warrant, so I would in fact guess that notoriety, and perhaps fame in general, would be positively correlated with misperception.

As I noted, however, that is really just additional speculation, with my main point being that Justice Thomas is much better known than most of his fellow Justices (but still only known by a minority).
3.8.2006 9:50am
Medis:
Beau,

I doubt that is what Breyer was claiming. And it is not so strange that the AP would think that more "debate behind closed doors" is at least potentially indicative of more disagreement between the Justices, in which case the AP's "though" is not too hard to explain.
3.8.2006 9:54am
SimonD (www):
HLSbertarian:
This may be nitpicking, but does the AP think that a well-running court is not a natural result of "more discussion and debate"?
Well, the late Chief Justice made it clear in his book about the Court that it was his view that the most efficient way to run the court was strictly to limit verbal debate and thrash it out in the writing. And there may well be something in that, although I think both Scalia and Breyer both chafed a little under that rule.

I strongly disagree that it is a good thing that cameras are inevitable in the Supreme Court; I think they have absolutley no place there, and frankly, I'm far from convinced they've been a good thing in the Senate either. Audio - fine. Release it the same day as the transcripts. Don't get me wrong - if there was C-SPAN 4, I would watch the court gavel-to-gavel, but I don't think the personal gratification of a bunch of legal types is sufficient reason to do anything, let alone something potentially injurious to the court as an institution.
3.8.2006 10:22am
Wrigley:
Kovarsky,

Come on, we all know you are a virulent racist. Grand Cru hit the nail right on the head. You hate blacks, jews, hispanics, immigrants, midgets, ballerinas, people who eat garlic, gypsies, junkies, carnies, Ivy Leaguers, Texans, Las Vegas, puppies, Ice Cream, New Orleans, people who eat meat, people who say "film" instead of "movie," the designated hitter rule, the Yankees, college football, the people in the New York Times wedding announcement page, people who mix metaphors, the wings served at BW3's, and every other thing good and decent about America.

Bigot.
3.8.2006 10:29am
Broncos:

Clarence Thomas has stated unequivocably before that he does not ask questions for three reasons. One: Standard English is not his native tongue; his first language is Gullah.

I'd never heard this before, and I would never guess it from hearing/reading him speak. Is there a cite?
3.8.2006 10:34am
Wrigley:
Link

Thomas comes from the Gullah/Geechee cultural region of coastal Georgia and is a member of this distinct African American ethnic group; he grew up speaking the Geechee language, which is a hybrid of English and various West African languages. Thomas acquired an enthusiasm for his heritage, writing about it in the December 14, 2000 issue of The New York Times:


"When I was 16, I was sitting as the only black kid in my class, and I had grown up speaking a kind of a dialect. It's called Geechee. Some people call it Gullah now, and people praise it now. But they used to make fun of us back then. It's not standard English. When I transferred to an all-white school at your age, I was self-conscious, like we all are... So I...just started developing the habit of listening."[4]
3.8.2006 10:38am
Wrigley:
As to whether that is why he's hesitant to ask questions:


When I was 16, I was sitting as the only black kid in my class, and I had grown up speaking a kind of a dialect. It's called Geechee. Some people call it Gullah now, and people praise it now. But they used to make fun of us back then. It's not standard English. When I transferred to an all-white school at your age, I was self-conscious, like we all are. It's like if we get pimples at 16, or we grow six inches and we're taller than everybody else, or our feet grow or something; we get self-conscious. And the problem was that I would correct myself midsentence. I was trying to speak standard English. I was thinking in standard English but speaking another language. So I learned that --- I just started developing the habit of listening. And it just got to be --- I didn't ask questions in college or law school. And I found that I could learn better just listening. And if I have a question I could ask it later. For all those reasons, and a few others, I just think that it's more in my nature to listen rather than to ask a bunch of questions. And they get asked anyway. The only reason I could see for asking the questions is to let people know I've got something to ask. That's not a legitimate reason in the Supreme Court of the United States."


link
3.8.2006 10:40am
Broncos:
Thanks for the link; it clears it up. I thought the claim was that he refrained from questioning due to a language barrier; this makes clear that he is just talking about the origins of a habit.
3.8.2006 10:45am
Steve:
I spoke to Clarence Thomas on the phone once (why am I bothering to name-drop? I'm an anonymous guy on the Internet) and he didn't even have the hint of an accent. I think the point the last poster made is more plausible; it's not that he has any issue with English whatsoever just because he grew up speaking a different dialect, it's that he developed certain speaking and listening habits in school as a result of growing up with this different dialect.

No question Thomas gets a bad rap from those who question his intellect and those who call him a Scalia-clone. His intellect is quite clearly of Supreme Court caliber (some might take that as an insult!). On the other hand, I think there's little doubt that at the time he was appointed, his resume didn't measure up to his intellect. And I think it's pretty unrealistic for anyone to argue that he obviously would have been appointed for Thurgood Marshall's seat, thin resume and all, even if he had been white.

Be that as it may, I still wouldn't call him an "affirmative action pick," because that has a perjorative connotation. I do think he exemplifies the good side of affirmative action, however; a minority who probably got considered in the first instance because of his race, but went on to show he was exceptionally suited for the position. One man's opinion, but still, I don't think you can seriously argue that race was just one teeny-tiny factor in his appointment.
3.8.2006 10:56am
Bill N:
Here's another interesting line from the article:

"We're not the CIA. The Supreme Court isn't and shouldn't be a secret place," Breyer said. "It's an opportunity for us to explain what the court is about."

I'll bet we know more about discussions in the CIA over the last decade than we know about SCOTUS deliberations. But I think he's right--and I'm glad justices are speaking and writing more about their philosophies.
3.8.2006 11:10am
SimonD (www):
I think it's pretty unrealistic for anyone to argue that he obviously would have been appointed for Thurgood Marshall's seat, thin resume and all, even if he had been white. Be that as it may, I still wouldn't call him an "affirmative action pick," because that has a perjorative connotation. I do think he exemplifies the good side of affirmative action, however; a minority who probably got considered in the first instance because of his race, but went on to show he was exceptionally suited for the position.
Well, a couple of things to say there. The first is, I think there would have been a firestorm created by the left if Justice Marshall had been replaced by a non-African-American; we would never have heard the end of it, an endlessly amplified version of Justice O'Connor's ridiculous comment that Roberts was a good enough pick, but it was a shame he wasn't a woman. I reject affirmative action, but I accept the political reality that Justice Marshall's successor had to be an African-America, just as I accept that the next nominee will have to be woman or a minority. While I think that's an invalid criterion for making selections, accepting it as the realty, Clarence Thomas was clearly a great choice, and would have been a great choice even if the imperative to pick an African-America had not been present; likewise, I think that Diane Sykes would be a great pick even if the diversity criterion wasn't a necessity, so the fact that she meets that criterion is just an added bonus.

Personally, I think it's a crying shame that - absent a double retirement this summer - Kozinski's never going to make it to the Supreme Court, but that's politics for you.

The second point to make is that whether or not Justice Thomas is fit to be on the Supreme Court -- I may not bestow him with an affectionate nickname such as "our hero" or "our fearless leader", but that in no way diminishes my respect and admiration for him -- he perfectly exemplifies not only a potential and occaisional positive aspect of affirmative action, as you suggest (the right guy got the job for the wrong reason, but he got the job), but also the universally pernicious aspect of it: he remains tarred by the brush of affirmative action because it is assumed by people who've never read his opinions that he only got there because he was black, and that he needs Justice Scalia to help him reach decisiosn. Insulting and ridiculous, but where you have a program that seeks to promote people based on color rather than talent, there will always be doubt over which - color or talent - got a person their job, even when it's the latter.
3.8.2006 11:36am
Kovarsky (mail):
Daniel,

I appreciate your righteous indignation a little bit, but before you make a plea to both sides to just get along, take a short look at the substance of the see exchange, see who called who what when, and think long and hard about how you would have responded. If you would not have responded that way, spend some more time thinking long and hard about whether someone who has clients in the real world and many colleagues in academia would respond, and if you would at least understand.

Look, I can sympathize with the "name calling" critique. What the guy accused me of doing above is, however, more or less unspeakable, and not unspeakable in that anger-factory kind of way. It was truly wrong and upsetting.

I post under my own name, so that I convey to other people that I'm accountable for what I say. When a coward hurls accusations like that from behind a pseudonym, because I have a revealed meatspace Identity, I perhaps feel a greater need to respond.

Wrigley is loving this by the way. He and I used to work together.
3.8.2006 11:39am
Steve:
Good comment. I guess you have to ask, is it better that he gets the job, but has to deal with the whisper campaign, or is it better that he doesn't get the job.

Thing is, take a step back for a moment. Obviously there is no actual "affirmative action" program at the Supreme Court. The racial issue was simply a political calculation, and that same calculation would be present even if affirmative action was illegal, even if there had never been such a concept under law. People would still say he got picked for Thurgood Marshall's seat because he was black. The only thing that would change is that no one would use the shorthand term "affirmative action hire," but the substantive point would be the same.

I agree with you that Kozinski would be a superstar choice - doesn't everyone agree?
3.8.2006 11:51am
Kovarsky (mail):
Simon,

Even if there is a two judge vacancy, I don't think Kozinski's gonna make it.

Sorry - I think he's awesome as a Circuit Judge though.
3.8.2006 11:53am
SimonD (www):
Steve,
I think that even if we re-imagine it as the evil that dared not speak its name, it would still be pernicious. I mean, you're right to the extent that there is no formal affirmative action program at the Supreme Court level (or for the judiciary in general), but the whole concept of there being a "female" seat, or a "catholic" seat, or a "centrist" seat, and the whole hullaballoo that there "should" be a hispanic on the court, or there "should" be an African-American on the court is incredibly silly, and seems to rest on a "diversity" criterion that is totally inappropriate to the Court unless one thinks that the Court should somehow "represent" America, which just isn't what I think courts should do.

About Kozinski -

I would have chosen Alito before I chose Kozinski, so I think that call was right, but in an ideal world, we would have got a couple of decades of Justice Kozinski. I think that would have been fun; not only is he a great warrior for the cause, and clearly everything you'd want from a Supreme Court Justice - clear thinker, good performer at oral argument, engaging writer - but on a personal note, I think that Alex gives great hope to all of us who suffer under the weight of a funny accent and European teeth that we can make it in American legal circles if we work hard and can make good arguments.
3.8.2006 1:31pm
Kovarsky (mail):
What I want to know about Kozinski is how he gave such a great performance in doctor strangelove.
3.8.2006 2:22pm
SimonD (www):
Kovarsky -
Time travel. I mean, it would have to be time travel since Kozinski would have been thirteen when Dr. Strangelove was shooting. ;)
3.8.2006 2:53pm
JLR (mail):
By the way, re future US Supreme Court nominees:

It is my contention that the next Supreme Court nominee, if a vacancy arises before President Bush leaves office, will be:

(A) Judge Diane Sykes of the 7th Circuit (if it is a "conservative" vacancy);

OR

(B) Maureen Mahoney of Latham and Watkins (if it is a "liberal" or "moderate" vacancy).

I am using the terms "liberal," "moderate," and "conservative" because in the realm of judicial confirmation politics, those three terms have relevance. Of course, in the realm of jurisprudence, those terms are meaningless.

If a double vacancy does arise, and President Bush is still in office, it is unlikely Judge Kozinski will be nominated because I envision Judge Michael McConnell of the 10th Circuit being the perfect nominee to pair with Judge Sykes.

Judge McConnell excelled in his Circuit Court confirmation hearing and received numerous plaudits from a wide variety of law professors. Such plaudits include, inter alia, a prominent New York Times Op-Ed by Doug Laycock from September 18, 2002, in which Professor Laycock heartily endorsed Judge McConnell as "plainly a moderate" and a "reasonable compromise" between the President and the Senate in terms of his then-pending nomination to the 10th Circuit.

In my opinion, Judge Sykes and Judge McConnell should be President Bush's two choices if there were another double vacancy before he leaves office in 2009. (Unless President Bush feels compelled to pick a Hispanic. Then my guess is that Judge Emilio Garza's stock rises dramatically.)

If John McCain or another Republican inherits the White House from President Bush, it is my contention that Judge Sykes and Judge McConnell should be the first two Supreme Court nominations that new Republican President makes.

Thanks.
3.9.2006 10:40am
SimonD (www):
I am a big cheerleader for Judge Sykes, although I was trying to play coy about it above. ;)

I think it safe to say that there simply is not a perfect candidate, from my perspective; you'd have to find a mix of the best qualities of Black, Scalia, Roberts and Kozinski, and even then I have no doubt I'd find something to nitpick about. But Judge Sykes is certainly in the top tier, in view, for reasons I elaborated on here and here.

To be sure, there are reasons to be concerned with any nominee, and Sykes is no exception; there are subject areas which are important to me on which Sykes simply has no record, and ConfirmThem's Andrew Hyman has pointed out, reasonably enough, that Sykes' dissent in Wisconsin v. Oakley cannot be reconciled with my view (or what I take to be that of Our Hero, see Troxel v. Granville, 530 U.S. 57 (2000) at 91) (Scalia, dissenting) of the status of unenumerated rights and judicial power to enforce natural law. But Oakley was written six years ago, and in any instance, Sykes could plausibly claim that it was premised on her application of standards required by Zablocki v. Redhail, 434 U.S. 374 (1978).

All told, I am quite enthusiastic about the prospect of a Sykes nomination. Furthermore, given the political realities (the next nominee, inescapably, cannot be a white male; it may be pandering, it may be stupid, but it is the reality, and given that we have a good number of perfectly acceptable non-white-male candidates available, not really a problem), I am actually quite hopefull that she may well be the nominee, and in this media-driven age, it certainly doesn't hurt that she's not only a a she, but a very attractive and apparently debonair she, at that, which may well make it even harder for the left to villify her, as it did with our Fearless Leader.
3.9.2006 2:05pm
JLR (mail):
Simon,

Thank you very much for your insightful reply. It will be very interesting to see who the 111th Supreme Court Justice will be.
3.9.2006 4:31pm
JLR (mail):
May it please the VC comment thread to let me post a few more thoughts as to who the 112th Supreme Court Justice might be (i.e., the vacancy after the next one):

As I wrote above in my 3.9.06 10:40 am comment, I see Judge Michael McConnell being a likely option for 112th Supreme Court Justice if a Republican President needs to replace a "liberal" or even "moderate" Justice (see my above post as well for notes as to why "liberal" and "moderate" are only useful in the realm of judicial confirmation politics).

But if a Democrat is elected President in 2009, I see Judge Michael McConnell still being an ideal selection if the vacancy to become 112th Supreme Court Justice is created by the retirement of Justice Scalia. With the Democrats' omnipresent concerns about "balance" on the Court, it would look very unfortunate for them to do the equivalent of nominating Ruth Bader Ginsburg to replace Byron White. If Senate Democrats want balance when the GOP controls the White House, it is incumbent upon a Democratic President to pick Judge McConnell (or someone like Judge McConnell) to replace someone like Justice Scalia (as opposed to nominating, say, Judge David Tatel).

Of course, Democrats could say "President Bush nominated Justice Alito to replace Justice O'Connor, so we don't have to follow through on balance." But if Democrats say that, then the plaintive wails of Senator Kennedy, Senator Schumer, and others will be unveiled as the hollow rhetoric that they almost certainly are (although, to give Senator Schumer the respect he deserves, he does seem to be an intelligent Senator re judicial nominations insofar as he was not agitating for the filibuster of Justice Alito that Senators Kennedy and Kerry ostentatiously attempted).

So, as I look into my crystal ball, I see Judge Diane Sykes becoming the 111th Supreme Court Justice (if a Republican President gets to choose who the 111th Supreme Court Justice is). I also see Judge Michael McConnell becoming the 112th Supreme Court Justice according to various scenarios (but not all scenarios).

Thanks again.
3.9.2006 5:07pm
JLR (mail):
Minor correction: obviously, a President will be elected in 2008; that President-elect will then be inaugurated in 2009. My apologies for the error.
3.9.2006 5:13pm