Harvey Silverglate
Who should Barack Obama nominate for the Supreme Court and why?
Kathleen Sullivan. Sullivan started out her career doing cutting-edge civil rights and criminal defense litigation, trial and appellate, for a small Boston law firm that I co-founded, and she proved herself brilliant at it. She went on to a professorship at Harvard Law, then the deanship at Stanford Law, where her students still rave over her inspired and inspiring teaching of constitutional law. She is now back in private practice, where she has taken on at least one case I'm familiar with (because I've worked on it) involving an innocent Muslim being pursued by the "national security" apparatus—what more can one wish in a Supreme Court justice besides skill, integrity, devotion to the Constitution, and guts?
Who will Obama nominate and why?
Elena Kagan. Kagan proved her mettle in taming the famously fractious faculty of the Harvard Law School after years of the high-profile dysfunctionality of that body, which indicates she could well be a future leader of a revived liberal wing of the court that is sensible rather than postmodernist or otherwise loony. Having gone through the confirmation process for solicitor general, she has a head start toward a reasonably non-confrontational and successful confirmation process. It probably matters to Obama that she is a woman who happens to be more than tough enough to weather decades on the high court bench.
Obama says that his ideal Supreme Court justice would have the "empathy" to identify with society's downtrodden. Do you agree with his criteria?
If Obama means by "empathy" an understanding of how life is actually lived by different segments of society, then I would agree with him, since one of my gripes in arguing before appellate courts is the lack of real-life experience and knowledge that characterize so many of them, especially on the federal appellate bench. But if Obama means an affinity for any particular group within society, then I think this would be a dangerous undertaking, since it would derogate against the notion of "equality under the law"—the "Golden Rule" underpinning of the 14th Amendment and of the whole common law tradition that applies the same rule of law to all citizens who find themselves in a similar fact situation (law students call it stare decisis, or the rule of precedent). The law would, overall, be far more sensible if what applies to me also applies to thee.
What issue(s) will dominate the court over the next three years and why?
White collar prosecution issues will be front-and-center because the trend within the Criminal Division of the Justice Department in the last quarter century has been the increasingly unfair application of vague criminal statutes to innocent members of a wide range of occupational groups for conduct not intuitively criminal. This prosecutorial trend will become exacerbated with the flood of indictments just around the corner, seeking scapegoats for an economic collapse for which the federal government is not going to want to take its fair (and rather large) share of the credit (or blame, as the case may be). If the court has even a single member who has actually represented criminal defendants, especially in unfair circumstances, it would be very useful, which gets us back to Question One.
Harvey Silverglate is a Boston-based criminal defense and civil liberties litigator and writer.
Ilya Somin
Who should Barack Obama nominate for the Supreme Court and why?
If it were up to me, I would pick my Volokh Conspiracy co-blogger, Georgetown law professor Randy Barnett. Randy is perhaps the leading scholar of the original meaning of the Constitution and a strong advocate for individual rights and limited government. He is also a former prosecutor and would bring a badly needed perspective to the issues addressed by the Court's extensive criminal law docket, matters that most of the other justices have little experience with.
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|5.21.09 @ 12:20PM|#
Janice Rogers Brown. She's a black woman, and that's all that matters. She's also good on some issues that some Democrats like. No, really!
[While being dragged away by the Stasi] No, really, it's okay! Appoint her, damn you, appoint her!!! Don't tase me, bro'!
Face the Muzak|5.21.09 @ 12:21PM|#
Maybe you guys could get an interview with Jan Crawford Greenberg. Now there's someone who understands the SCOTUS.
SpongePaul|5.21.09 @ 12:30PM|#
Too bad Judge Napalataniano or however you spell it is not in the running, he would get most things right.
|5.21.09 @ 12:38PM|#
Confident predictions:
(1) Obama's nomination will be catastrophically bad on limited government issues.
(2) The Republicans will makes fools of themselves and squander an opportunity.
(3) Obama's nomination will be approved.
|5.21.09 @ 12:45PM|#
What's to discuss? We are getting ass raped by progressively bigger cocks.
The left/right makeup of the SCOTUS is meaningless, as they both favor fucking us.
|5.21.09 @ 1:04PM|#
The nominee should not be one who is an Ivy grad. He or she should have no government employment in their background.
Warty|5.21.09 @ 1:13PM|#
He or she should have no government employment in their background.
He should also smell like rainbows and shit out Twinkies.
|5.21.09 @ 1:14PM|#
Female. Probably not white. Legal expoerience and judicial philosophy will only be considered by the Obama staff after that.
Joel|5.21.09 @ 1:16PM|#
...their views on what sort of justice Obama should-and will-appoint to the Court...
Both sorts are probably pretty well known, in general terms. They're way not the same list.
|5.21.09 @ 1:18PM|#
And in general, in the confirmation process the more libertarian a Republican-proposed candidate seems, the harsher the confirmation. Big government conservatives are always more preferable to Democratic Senators.
In the past, Republicans really haven't fought Supreme Court nominations. Justice Ruth Ginsburg was confirmed 96 to 3; Stephen Breyer 87 to 9. That almost qualifies as the Republicans getting it right from a libertarian point of view; to me, Breyer is almost the anti-libertarian justice. He's certainly the anti bright line, pro "balancing" pragmatic justice. Ginsburg is considerably better on civil liberties than Breyer.
Barry Loberfeld|5.21.09 @ 1:20PM|#
What we don't need from Obama: another Breyer:
To those of us suffering under the delusion that the Constitution was supposed to "secure the Blessings of Liberty," Breyer reveals that its purpose was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves." But how can it protect "individual liberties" when such protection is precisely what doesn't allow "citizens to govern themselves"? Or is "basic" actually Breyerspeak for as few as possible?
At this point a certain feeling may be creeping over many, an eerie kind of déjà vu. It grows only stronger when [E.J.] Dionne reclaims the mic. "Breyer's argument," he explains, "leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them." Now that tore away the disguise, didn't it? This isn't the "living document"/"evolving Constitution" rhetoric that the Left's been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the "intentions" of the Framers of the Constitution -- who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms -- as his alter ego -- the monstrous presence of ...
READ "The Strange Case of Justice Breyer and Mr. B."
|5.21.09 @ 1:30PM|#
Warty-
If one smells like rainbows, one should not be shitting twinkies.
|5.21.09 @ 1:33PM|#
What's to discuss? We are getting ass raped by progressively bigger cocks.
Well, the color of the cock - I expect the professional jounalists and chattering class to discuss that for endless and painful hours about if the cock is brown enough. What about strap ons? I've heard that they let girls on the court now too.
Actually discussing - and actually placing primary importance on - Liberty? fuck that noise.
|5.21.09 @ 1:34PM|#
File under duh:
Most of us here would be happy if one of us was nominated and confirmed, narcissism of minor differneces aside (to borrow a phrase recently discussed).
kinnath|5.21.09 @ 1:34PM|#
I still betting on an Asian Lesbian . . . .
Warty|5.21.09 @ 1:35PM|#
libertymike - I was offered a deep fried chocolate covered Twinkie the other day. I passed.
Zeb|5.21.09 @ 1:40PM|#
"permits citizens to govern themselves"
I think he meant "govern each other". You don't really need a government to govern yourself, do you?
|5.21.09 @ 1:46PM|#
Check out this Onion-style parody of Obama's criteria for picking judges:
http://optoons.blogspot.com/2009/05/obama-unveils-new-statue-at-us-supreme.html
Warty|5.21.09 @ 1:51PM|#
It's trying too hard, Read.
|5.21.09 @ 2:00PM|#
We need one justice who represents the 10% of Americans who are one stripe or another of libertarian. Affirmative action at work, people!
Xeones|5.21.09 @ 2:11PM|#
Amen, Pro Lib! I hereby nominate Radley Balko. Yo, fuck "new professionalism."
Fist of Etiquette|5.21.09 @ 2:55PM|#
Kaminer's disdain for identity politics couldn't be characterized as fanatical, I guess. That's a bullshit qualifier if I've ever seen one.
proud libitard|5.21.09 @ 3:47PM|#
politics be damned...we need a hotty!
Like this lady http://www.tvweek.com/blogs/cristina-perez/2008/10/23/JudgeCristinaSmall.jpg
Kreel Sarloo|5.21.09 @ 4:06PM|#
Obama will follow the james Watt principle:
"a black, a woman, two Jews and a cripple."
Noone will admit it and Watt got a lot of flak for saying it, but that's pretty much been the formula for quite a while now.
Kreel Sarloo|5.21.09 @ 4:15PM|#
And naturally, Napolitano is out.
With Scalia and Alito the Italian quota is full.
|5.21.09 @ 4:47PM|#
Nominate lonewacko.
It would sure make the SCOTUS a hell of a lot funnier.
|5.21.09 @ 4:52PM|#
Is it just me, or is there something suspicious about a panel of 13 experts two of whom are named "Ilya"?
Randy|5.21.09 @ 6:01PM|#
RL -- It's just you.....
Telly|5.21.09 @ 8:24PM|#
He'll nominate Michelle. She's been bitching about the first lady not being a paid job title, you know.
Judge Dredd|5.22.09 @ 12:50AM|#
I am the law!!!!
Craig|5.26.09 @ 7:28PM|#
President Obama should nominate a person with proven experience and integrity who has also demonstrated a deep understanding of the Constitution as a document designed to secure liberty through limited government.
My thoughts exactly, but I don't expect him to nominate the person who best fits that description: Ron Paul.
Andrew Napolitano would be a good second choice, though, and younger than Paul.
Scarpe Nike Italia|8.9.11 @ 5:05AM|#
is good