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Goldstein on the GOP Short List:
Over at SCOTUSblog, Tommy Goldstein follows up his post on the Democratic short-list with a new post on a Republican short-list. Once again it's all speculation, but it's interesting speculation. A few comments:

   First, assuming the President replaces a retiring Justice who is a white male, I don't think a future GOP President is likely to see the race and gender of a nominee as being as important as Tommy thinks. It would be a significant thumb on the scale, but not the end-all-be-all. Why? Well, consider the failed nomination of Harriett Miers. Bush didn't get a lot of credit from either side for nominating a woman to fill O'Connor's slot. On the other hand, Bush's picks of Roberts and Alito remain two of his most popular decisions among Republicans (if not the two most popular decisions — heck, if not the only two popular decisions). I think that's probably a reflection of how these things will shake out for future GOP picks.

  Second, it's hard to come up with new names for a GOP pick because we've been through the basic list twice in the last two years for the Rehnquist and O'Connor vacancies. If I had to put together my own list, however, I would probably focus on some of the young conservative lower-court Bush appointees. In addition to Michael McConnell of the Tenth Circuit, always a VC favorite, I would keep an eye out for folks like Steven Colloton of the Eighth Circuit, Wiliam Pryor of the Eleventh Circuit, and Paul Cassell of the U.S. District Court for the District of Utah.

  Third, I agree with Tommy that Paul Clement will have a very good chance of being on a short list some day. He's a star.

  Finally, one obvious variable in this discussion is how much pressure a future GOP President would feel to nominate a moderate and avoid a difficult confirmation battle. I think there would be less pressure than Goldstein seems to think. The key is that for the foreseeable future, every confirmation of a GOP nominee is going to be a difficult confirmation. If a straight arrow like Sam Alito draws a 58-42 vote in a Republican-controlled Senate, then the era of 99-0 Senate votes — and the boosts from an easily-confirmed pick that go with them — is probably over. Given the importance of judges to the GOP base, I think a future GOP President still would have a significant incentive to nominate a relatively conservative candidate rather than a moderate.

  That's my guess, at least. What are your thoughts?
John (mail):
Bush's only popular decisions were Roberts and Alito?

The tax cut was pretty popular with the base. And the medicaid drug benefit has been pretty helpful for a lot of people too.
7.23.2007 8:30pm
Justin (mail):
Race and gender will be important because if a GOP nominee wins the next (or any) election, it will be by reaching out to a coalition that includes at least roughly half the total election.

Another white candidate won't cut it, so long as there are ANY other options. It may just be a thumb on the scale, but the difference between a guy like Sam Alito and a guy like Garza (but younger) is a couple of milligrams at best.

Only if there are no qualified, electable Hispanics (I don't think African American or women are nearly as important to the GOP - the second most important might be Asian) will they go to another white (male) candidate.
7.23.2007 8:30pm
Christopher M (mail):
Hmm. Whether or not Alito is a "straight arrow," he's pretty clearly not a "moderate" in the relevant sense of a jurist toward the liberal end of the range of plausible nominees from a conservative President. It's pretty hard to think of plausible nominees who would qualify as moderates, because the Republican party has emphasized its conservative judicial philosophy in recent years to such an extent that an actual judicial moderate would have a hard time achieving the kind of status in Republican legal circles that would make him or her stand out as a plausible nominee. Clearly there are a number of sitting judges who would qualify, but not many that anyone could get all that excited about.
7.23.2007 8:33pm
Guest101:

On the other hand, Bush's picks of Roberts and Alito remain two of his most popular decisions among Republicans (if not the two most popular decisions — heck, if not the only two popular decisions).

Right, because the Republican rank-and-file has been up in arms over Bush's handling of the war on terror, torture, and civil liberties since the very beginning, right? You'll have to try a bit harder than that to distance the Republican mainstream from this administration's policies, Orin.
7.23.2007 8:40pm
Andrew J. Lazarus (mail):
I'm fairly certain Stephen Reinhardt of the Ninth Circuit is a straight shooter. Think the GOP Senate minority would sign on to confirm him for a 99-0 vote? Me neither.
7.23.2007 8:47pm
OrinKerr:
Guest101, John,

Just to be extra clear, that was a joke. It was not meant to be serious. I was kidding.
7.23.2007 8:51pm
texas lawyer (mail):
I have to disagree with Tommy on Texas Supreme Court Justice David Medina. I greatly respect Tommy's views on the Supreme Court, and I personally like Justice Medina, but I don't think there's much chance he'll be appointed.

The Texas Supreme Court is very conservative &pro-business. I think Medina is one of the most moderate justices on the court. (I respect him for that).

The issues on state supreme courts are quite different from the US Supreme Court. That is especially true in Texas where our supreme court does not hear criminal cases (the co-equal Texas Court of Criminal Appeals does). The hot-button issues here relate primarily to tort litigation &the question is whether one is pro-plaintiff or pro-defendant. I am not sure if one's view on this issue accurately predicts one's view on criminal law issues, abortion, or national security. But, I think many conservatives would worry that a judge not sufficiently "pro business" will not be sufficiently conservative on other issues.

I would not characterize Justice Medina (or any Texas Supreme Court Justice) as pro-plaintiff. But, I think he is one of justices most likely to decide for plaintiffs. He regularly dissents from opinions (often dissenting with Justice O'Neill). In the area of personal jurisdiction, he favors expansive view of long-arm jurisdiction. I think business interests would not want Justice Medina on the court.

Also, to be frank, I don't think Justice Medina has the resume the Supreme Court requires. He went to South Texas College of Law. It is not a well-regarded school academically (although it has strong trial traning). As an example, Baker Botts in Houston hires within the top 1/2 out of Harvard, the top quarter out of the University of Texas, the top 10% out of the University of Houston. But, it hires within the top 10 people (NOT PERCENT) out of South Texas. If people thought Harriet Meiers (who went to SMU) lacked a sterling resume, I can't imagine what they'll say about Justice Medina.

In sum, even if a president was willing to look past Justice Medina's resume, I don't think he's given any indication that he will be a conservative stalwart. In fact, I think the opposite is true.
7.23.2007 8:59pm
Thomasly (mail):
Viet Dinh should be on any list.
7.23.2007 9:57pm
Anon Y. Mous:
More of a hope than a prediction: Janice Rogers Brown.
7.23.2007 10:15pm
David M. Nieporent (www):
And the medicaid drug benefit has been pretty helpful for a lot of people too.
The people who wanted a new federal entitlement whine that it wasn't generous enough, and the people who didn't think it was too generous.

It may have been a joke by Orin, but I'm not sure it wasn't true anyway.

Christopher M: or perhaps liberals have spent so much time demonizing every moderate as a far right extremist that they don't even know what a real conservative nominee would look like.
7.23.2007 10:39pm
Scipio_79:
JRB would send the progressives apopoletic. If she could only get confirmed. And wouldn't JRB and CT be a GREAT combo!
7.23.2007 10:53pm
Toby:
JRB would induce a vicious fight, as the most important thing to many across the aisle is maintaining a race/gendr based advantage. Anyone who can be pointed to as eroding that "delenda est"
7.23.2007 11:24pm
Da Kid:
Why not Judge Sutton?
7.24.2007 12:12am
Da Kid:
Whoops. Didn't notice him on the list of top 30 candidates. Why isn't he higher?
7.24.2007 12:17am
theobromophile (www):

Given the importance of judges to the GOP base, I think a future GOP President still would have a significant incentive to nominate a relatively conservative candidate rather than a moderate.

That's my guess, at least. What are your thoughts?

If a GOP President nominates someone who upholds Roe, heads will roll.

In theory, judicial conservatives (as opposed to political conservatives) won't really affect the daily operations of liberal states and laws. Under a judicially conservative regime, liberals may still enact their policies; they just need to do it via legislation and not judicial fiat. (I doubt, for example, that many conservative judges would hold that the Constitution prohibits abortion.)

As such, it's a surprise that there's such a fight in the Senate, as they have the power to legislate around an unfavourable ruling.
7.24.2007 12:18am
Anderson (mail) (www):
Goldstein on the GOP Short List

Surely not! ;)

(This example should fit in a thread of EV's somewhere ....)
7.24.2007 2:41am
OrinKerr:
Da kid,

Yes, Jeff Sutton should be considered in that group, too.
7.24.2007 3:54am
Cornellian (mail):
Bush will nominate a woman or minority if he can find one he likes sufficiently so that the Republicans can accuse the Democrats of not wanting women or minorities on the Supreme Court when the Democrats block the nomination.

Alito wouldn't even get a vote in the Senate as it exists today - he'd never get out of committee.

Roberts would be a fight today, but he'd probably get to the floor of the Senate and would likely be confirmed by a comfortable margin. The problem for Bush is that Roberts was an incredibly rare find - conservative enough for the base yet charming enough not to alienate Senate Democrats. Most of the other candidates come across as obnoxious ogres who are easily opposed for that reason.
7.24.2007 3:55am
David M. Nieporent (www):
As such, it's a surprise that there's such a fight in the Senate, as they have the power to legislate around an unfavourable ruling.
Not if, e.g., federalism rulings are respected rather than narrowed. (Remember, it was the liberals who reversed Angel Raich's victory. They're desperate to increase federal power, even if it results in occasional substantive policies they dislike.) Or if decisions like Kelo come out the other way.

The conservative view of the constitution is limited government, whereas the essence of liberalism is unlimited government. (But of course unlimited government which is only used by good people for good ends.)
7.24.2007 9:04am
Justin (mail):
"(Remember, it was the liberals who reversed Angel Raich's victory. They're desperate to increase federal power, even if it results in occasional substantive policies they dislike.)"

This comes across as both undefendable and incredibly mean-spirited, to the point of out-and-out obnoxiousness. While you have no idea what lurks in the heart of the four justices you hate, guessing that it is some maniacal "desperat[ion]" to "increase federal power" is just absurd. And never mind that, if they had voted the other way, you get the added bonus of calling them judicial activist hypocrites who are enforcing the substantive laws of their choice.

So you take the position that they voted one way on Raich, which most law professors (including conservatives such as Professor Monoghan at Columbia) thought was going to be an 8-1 or 9-0 decision - in part because going the other way would require the government to prove the interstate element for all drug-related crimes, the type of barrier to the (yes, ill-conceived) drug war that would make it impossible to fight. While that might not be a bad policy outcome, I don't think its a judicial decision in the first instance (and I say this as a liberal who thinks Roe cannot be sustained on the grounds that it was rendered). Same with Kelo, fwiw, but that is an argument I'd like to save for another day.

But this "they're evil no matter what they do" position a truly unfortunate way to argue, and I hope you aren't doing it purposely. And if you aren't, let me just warn you that it is very easy to (mistakenly) enforce your worldview of good and evil when you require a quantum of proof that is so circular.
7.24.2007 10:56am
Rich Rostrom (mail):
Unless Bush goes out of his way to appease the Left by nominating a candidate who explicitly embraces their positions, there will be a fight. The professional-activist Left have found they can rouse their supporters by portraying any conservative nominee as a monster. I've seen a flyer from 1990 asserting that if David Souter was confirmed "women will die!" (I.e., Roe v Wade would be overturned, etc.) The fight will have less to do with the actual views of the nominee than with the fundraising potential for NOW, PAW, and their ilk.

Besides which:

For several decades, the Court has been a stronghold of Left paralegislative power. They will never give it up. (One reason why nomination fights are such a good fundraising opportunity.)
7.24.2007 11:15am
Justin (mail):
"For several decades, the Court has been a stronghold of Left paralegislative power. They will never give it up. (One reason why nomination fights are such a good fundraising opportunity.)"

What nonsense. What percentage of the federal court judges have been nominated by Republicans? I know for the Supreme Court itself, the number is just a touch under 78%. To think that David Souter is some puppet of a leftist conspiracy completely belies your previous point that Souter was opposed by liberals for mistakenly believing that he would oppose Roe v. Wade.
7.24.2007 2:03pm
Boba Fett (mail):
What about Mark Filip and Rachel Brand. Mark Filip is creating an outstanding reputation on the Northern District of Illinois bench. Rachel Brand would be an awesome choice.
7.24.2007 4:04pm
theobromophile (www):

Not if, e.g., federalism rulings are respected rather than narrowed. (Remember, it was the liberals who reversed Angel Raich's victory. They're desperate to increase federal power, even if it results in occasional substantive policies they dislike.) Or if decisions like Kelo come out the other way.

David,

As for federalism rulings: liberals (or anyone who opposes the ruling) may still legislate around it: they are just forced to do so on a state-by-state basis.

Kelo isn't really a federal power issue - in fact, that's a local power issue. ;)

The only issue I really see is the Second Amendment, where a conservative interpretation will substantially limit anti-firearm legislation.
7.24.2007 8:38pm