My Favorite Reason to Get Rid Of Judicial Filibusters


Everyone knows that the Senatorial battle over judicial filibusters is just setting the stage for the eventual partisan showdown over the appointment of new Supreme Court justices. Here is my dream candidate for next Supreme Court justice. Chances that the Bush Administration would have the nerve to nominate him? Zero. Putting aside the petty practicalities of politics, reason online reader nominations for dream Supreme Court candidates are now open.

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  1. Elliot Spitzer

  2. Lawrence Lessig

  3. Reporter: How do you respond to the bipartisan opposition to your nomination.

    Nominee: Of course you realize, This means war!

  4. Oh, come on. “Reason Online” works just as well as (better than, actually) “reason online.”

    As has been explained here previously, lowercase titles are merely graphics devices. They’re fine in art heds; they have no use in text. In fact, they should be actively avoided in text, because they slow down readers and invite confusion.

    Readers of English are accustomed to seeing proper nouns capitalized. A lowercased proper noun is a speed bump, and should be avoided for clarity’s sake. I’m a regular here, I see the magazine’s name in my bookmarks almost hourly, and I still got held up by that sentence.

  5. Richard Epstein.

  6. Kinky Friedman

  7. And perhaps I should have read the link first.

    Anyway, Ron, consider your nomination seconded.

  8. The somewhat less experienced Joseph Epstein.

  9. Randy Barnett
    Clint Bolick

  10. Judge Wopner.

    Seriously, Democrats and liberal activists need to stop ripping their hair out over the idea of Bush appointing someone to the Supreme Court. William Rehnquest will be the first to step down; he’s conservative on most issues, is anti-Roe vs. Wade and anti-affirmative action, etc. Given that the battle lines on most major issues within the court are already drawn- over 10 years, we’ve had much time to learn the specific stances the justices have- conservatives will probably gain little and libreals will probably lose little.

    Then again, many justices, like Kennedy and O’Connor, are appointed as conservatives but begin to tilt to the left over time. So maybe a “solid conservative” like Thomas or Scalia wouldn’t be a bad thing, since we would at least have a strong idea of that person’s ideas and where he or she is coming from.

    Just let Bush appoint someone. He’s already been in office for five years, he’s overdue.

  11. Andrew Napolitano

  12. Robert Bork.

    And after that, Douglas H. Ginsberg.

    It’s time to carry on the Gipper’s unfinished work!

  13. Robert Bork

  14. Dream Bush nominee – Kozinski (though Randy Barnett is an interesting suggestion)

  15. Judge Judy.
    Judge Dredd.
    Judge Reinhold.

  16. Richard Posner

  17. Richard Epstein
    Doug Ginsburg
    Danny Boggs

  18. Both Ron Kuby and Judge Moore. They’ll balance each other out, and the dissenting opinion on every case will be hilarious!

  19. Robert Bork??? Are you people insane?

  20. Akhil Reed Amar

    Frankly, I do not really know enough about him, but he seems interesting.

  21. Seconding the Richard Posner nomination.

  22. Eugene Volokh

  23. Bond,…James Bond

    Not the fictional spy, the real life law professor.

  24. Jeff- Your suggestion triggered a vision of the future.

    “…Next on C-SPAN, as a part of our ongoing series on America and the Courts, we go to Washington, where the Cato Institute is hosting a weeklong celebration of the legacy of the Reinhold Court. This panel discussion lasts fifty minutes…”

  25. Linda Greenhouse

  26. Thoreau

  27. Since Frank Zappa is dead, I’m forced to nominate Captain Beefheart.

  28. Judge Jim Gray

  29. Jim Gray would definitely be better than anyone currently on the Court…or who has been on the court in at least the last 50 years. (Of course, that’s not saying very much.)

    “Judge Gray’s thorough and scholarly work, based as it is on his personal experience, should help considerably to improve our impossible drug laws. [His] book drives a stake through the heart of the failed War on Drugs and gives us options to hope for in the battles to come.” ?Walter Cronkite

  30. D-oh! Beaten to the punch by a dead man! (But at least it was Elvis… ;-))

  31. I also nominate Jim Gray.

    I can’t accept dead elvis’s nomination, as I’m planning to start an island utopia called the Island of Doctor Thoreau. Perhaps I could be the Chief Justice of the Island Supreme Court. Associate Justice Panther Man will also be on the court.

    And when legislators on my island use the “nuclear option”, it will mean that they’re either doing table-top fusion experiments (yes, such things exist, see the latest issue of Nature) or messing around with the DNA in a cell.

    Kozinski was appointed by Reagan to the 9th Circuit (yes, the 9th Circuit, but don’t hold that against him). Kozinski has demonstrated his libertarian beliefs, but might frustrate some conservatives who are willing to sacrifice individual liberties on the altar of their police-state goals (and liberals, as well, due to his dedication to freedom).

  33. Biff: “Robert Bork??? Are you people insane?”

    No, unless they think he’s a libertarian…

  34. 2nd for Ron Paul.

  35. But imagine the media firestorm that a Bork nomination would launch.

  36. I vote for leaving Ron Paul where he is. We need MORE libertarians in public service, not just moving around the ones that are already there.

    I second Mr. Bailey’s recommendation.

  37. The point about Richard Epstein isn’t just that the Bush administration wouldn’t have the “nerve” to appoint him, in the sense that they fear popular reaction or don’t think he would be confirmed. The point is they wouldn’t *want* him on the court, even if by some miracle he could be confirmed. They do not share his views–publicly or privately. The last thing they want is a justice with a theory that the New Deal is unconstitutional–not just for public relations reasons but because they don’t want to do away with the New Deal. Rather they want to transform it into something more pleasing to social conservatives (e.g., by funneling government welfare spending to religious groups) and to businesses (e.g., by transforming Social Security into a government-regulated investment-in-Wall-Street fund).

  38. I second Eugene Volokh and Alex Kozinski’s nominations for the court, and nominate for disenfranchisement everyone who (1) nominated Ron Paul and (2) wasn’t kidding.

  39. How about Pat Robertson? He is a lawyer and knows how God would decide all the cases. It would be like having God on the bench.

  40. Vache Folle-

    Please, don’t even JOKE about that. *shudder*

  41. Randy Barnett would be my first choice.
    Alex Kozinski would probably be my second.
    Epstein certainly would certainly not be bad – he’d be better than Scalia.
    Douglas Ginsburg would also be a pretty good choice.

    Xrlq – why would you support Volokh and Kozinski but not Ron Paul? I can understand recommending disenfranchisement (or disembowelment) for those who voted for Bork, but not for Ron Paul, particularly given who you support.

  42. Um, maybe because Ron Paul’s not a judge, a legal scholar or even a lawyer. That kinda matters when you’re serving on the Supreme Court.

    I may be the only libertarian in the world who thinks Ron Paul is kind of an ass. Maybe it’s because we have irreconcilable differences on foreign policy, but the guy just bugs me. I’d still rather have him in Congress than most any Republican or Democrat, though.

    Anyway, I second the nomination for Volokh. Kozinzki would be awesome, too.

  43. Kozinski would be a pretty good choice who probably could actually get confirmed.

  44. Flip Wilson.
    The greatest entrance to the court room ever. And he’s got the legs for those black dresses they wear….

  45. Douglas Ginsburg? Gee, do you think our culturally conservative Congresspersons will forgive him for (GASP!) puffing a few in college?

    Oh the shame, the shame….

  46. I second Judge Napolitano.

  47. I second dead elvis’ nomination of thoreau.

    I also nominate the libertarianish Walter E. Williams. In a column, he once said people told him he should run for president, but he didn’t want the job. However, he’d accept a nomination to the Supreme Court. He also pointed out that you don’t need to be a judge or lawyer to be nominated.

    Also — what the hell — Juan Epstein. As a sort of “up your nose wid a rubber hose” gesture to the Establishment.

  48. Mr. Chief Justice:

    Please excuse my son Juan’s absence from Court on Monday. I hadda take him to the doctor’s office.

  49. Napolitano could conceivably be confirmed.

  50. Judge Jim Gray could surely be confirmed. Just serve the Senate some brownies laced with pot, wait until they get giggly, and then Judge Gray comes in and says that he’d like to make it so that every American can enjoy these brownies as much as they want.

    Senator: Dude, like, do you have any more of these brownies?

    Judge Gray: Here you go, Senator Hatch.

    Orrin Hatch: Dude, that’s like, so incredibly awesome of you. Did you ever notice just how fucking round the dome on the Capitol is?


    I can’t accept your nomination. I’m going to be Chief Justice on the Island of Doctor Thoreau, and Panther Man will be one of my Associate Justices.


    If your biggest objection to Ron Paul is foreign policy then the Supreme Court is a better place to have him than Congress. Congress has more authority over foreign policy than the Supremes.

  51. thoreau,

    Good point. My problem with having him on the Supreme Court is that he has no qualifications to be a judge at any level. He’s a better-than-average congressman, so let’s keep him there.

    Of course, this is in the make-believe land where Ron Paul could get nominated to the Supreme Court.

  52. Phyllis Randolph Frye.

    Forced Bexar County to issue a marriage license to two women because one of them used to be a man and still had possession of a Y chromosome.

    I’d also nominate any attorney who is a member of the Pink Pistols. Anyone who can be openly gay and pro-gun has to be immune to intimidation by either party.

  53. Richard Posner
    Alex Kozinsky

    I like Randy Barnett and Richard Epstein, but don’t know enough about the breadth of their work. (My failing, not theirs.) And Janice Rogers Brown would be interesting; she’s one of the chief bones of contention now due to her nomination for the DC Circuit.

    While I don’t particularly want Bork on the Supreme Court, I’d cheerfully pony up for the confirmation-battle fun.

  54. Here’s a question, to get serious for a moment: How many people think that without filibusters any of the people we’d like would actually get nominated?

    Oh, maybe a few half-way decent judges would get nominated to district courts (or whatever the first tier of the system is called), and even one or two to appellate courts. But by and large I doubt we’d be thrilled with the judges that they’d put in place without the threat of a Dem filibuster.

    Don’t believe me? Think about this. The GOP has made so many promises to us in elections for House, Senate, and President. They’ve talked the good talk about limited government. And they’ve done a few things for us. But they’ve also given us McCain-Feingold and the Medicare prescription drug fiasco (opposed by many Congressional Republicans, but supported by many others and both signed by Bush). And let’s not forget that the Medicare bill was the largest expansion of the welfare state since LBJ.

    And the Bush administration has argued that it has the right to detain US citizens indefinitely without trial.

    Does anybody think that this crowd would really give us judges who would be even a fraction of what we want? Oh, sure, they talk the good talk about “judges who adhere to the Constitution”, but they make similar sweet talk to us during elections. And they’ve also made a lot of noise about how the judiciary is standing in the way of their religious agenda.

    They already have a lock on both houses of Congress, and a pretty strong lead in the Electoral College (so I doubt there will be a Dem in the White House any time soon). Now they are demanding unfettered control of the third branch of government. They assure us that they just want judges who will adhere to the Constitution, but I doubt they’ll deliver that. I think they want judges who will uphold whatever legislative monstrosities they enact, who will give a free pass to the theocrats, and who will sign off on it whenever they eviscerate the Bill of Rights (e.g. detaining US citizens indefinitely without trial).

    Really, I’m terrified to remove the one remaining obstacle standing between them and hegemony. I wish that we could rely on some check or balance more liberty-oriented than a filibuster by the Senate Democrats. But the Senate Democrats are all we have. They may not be friends of liberty, but they are predictably partisan and obstructionist. And the GOP leadership has broken far too many promises to be trusted with unfettered control over the third coequal branch of government.

    I know I’ve said this many times in the past few days, but I feel strongly about it. I don’t see why everybody is so willing to let the GOP go crazy with the judiciary when they’ve broken so many other promises, and when they’ve made so many noises about religion in this battle over the judiciary.

  55. Alex Kozinski

    But Janice Brown will make a good Judge too. The Filibuster may be a nice tool to have, but it is the Democrats, not the Republicans who are forcing the issue on that front. They took the first unprecedented activiton. The Republicans are just responding in kind. If the Dems really want to save the principle of the filibuster (which I doubt they even do) they would just back off.

  56. I’m surprised nobody has touted Harry from “Night Court,” or my favorite, His Honor Bob Franklin.

  57. Phyllis Schlafly

    James Dobson

  58. I had law prof who was a big Epstein fan. He said that if Epstein was ever nominated to the Supreme Court it would be like one of those tag team wrestling matches where one guy is beating the snot our of some poor schmuck and tags his partner who comes into beat the snot of the schmuck some more. That would be what the interests groups would do to Epstein. He is a great thinker and most importantly a free thinker who lets his thought experiments run free just like Robert Bork does. You saw where that got him.

  59. Back in the day, when I was a grad student at
    U of Chicago, the University of Chicago
    Libertarians hosted talks by both Ron Paul and
    Richard Epstein. I also had the good forture
    to join (name-dropping alert) Epstein for lunch
    along with my advisor (Nobel prize-winner) Jim

    Here is what I know: Ron Paul is not a very
    bright fellow. His heart is mostly in the
    right place, but he is not going to win
    intellectual debates with even the lightweights
    (e.g. Souter) on the present court.

    Epstein, on the other hand, showed up, asked
    how long we wanted him to talk, and then launched
    into a speech of exactly that length. His speech
    was clever, funny and well-organized and done
    without notes. Having Epstein on the court would
    be double or triple the intellectual fun of
    Scalia – he would rip everyone else to shreds.
    Plus is actually a pretty nice guy.

    My other grad school memory (slightly off topic
    but there you go) is watching he and Richard
    Posner pass notes back and forth and giggle
    while Mario Rizzo was giving the law and economics
    workshop. Moments like that are why you go to
    Chicago for grad school instead of somewhere
    else. 🙂

    Jeff Smith

  60. How about digging up the bodies of Learned Hand and Paul Freund–the two people most often “named” to the Supreme Court by everyone except the presidents? I don’t see anything in the Constitution that says you have to be alive to be a justice…

  61. Janice Rogers Brown

    just for her stand on Private Property Rights alone

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