The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, President Biden offered some insight into the type of Justice he is looking for:
"I'm not looking to make an ideological choice here. I'm looking for someone to replace Judge Breyer with the same kind of capacity Judge Breyer had, with an open mind, who understands the Constitution, interprets it in a way that is consistent with the mainstream interpretation of the Constitution."
Like Clarence Thomas three decades ago, I have no idea what Biden is talking about.
Biden in 1991: "There's a fervent and aggressive school of thought that wishes to see natural law further inform the constitution… You know and I know what we're talking about"
Clarence Thomas: "I had no idea what he was talking about"
— ᴊᴏᴇ (@traddingtonbear) May 19, 2020
What exactly is the "mainstream interpretation of the Constitution"? But more importantly, what would it mean to appoint someone in the mold of Justice Breyer? I adore Justice Breyer, but his jurisprudence is incoherent. His opinions, laden with indeterminate balancing tests, are very difficult to teach. And, his flexible frameworks, which are designed for the case at hand, are difficult to extend to different fact patterns. Does Justice Breyer even favor a "mainstream interpretation of the Constitution," whatever that is? Given all these indeterminacies, should President Biden want to appoint another Justice Breyer? In this moment, is that the right nominee? Or should President Biden look to a different model?
Maybe President Biden should look to someone like Justice Sotomayor, who can serve as a progressive rock star? Justice Sotomayor does not favor a "mainstream" reading of the Constitution, but instead pushes for a progressive reading of the Constitution. And she speaks for a generation of people who do not find their voice on the current conservative majority. Why shouldn't Biden shoot for the stars here, and appoint another liberal lion?
Or maybe President Biden should consider someone like Justice Kagan. Justice Kagan is not a progressive rock star. Most law students probably couldn't pick her out of a lineup. But her greatest asset–at least in the past–was her ability to forge compromises with the Court's conservatives. Kagan has been successful at preventing the Court's rightward lurch. She doesn't get much credit, but Kagan has averted many catastrophes for the left. Why shouldn't Biden favor another Kagan to help bridge compromises–what I called a "Roberts whisperer"–especially now that Justice Breyer is gone?
Or maybe President Biden should appoint someone in the mold of Justice Scalia? Aziz Huq makes this argument at Politico:
Justices don't just exercise influence by wheeling and dealing behind the scenes. Even a jurist without the votes to win can make a mark and move the nation. The proof of this — and a model for a powerful Biden pick — is that least liberal of judicial icons, Antonin Scalia.
Over a career that lasted more than three decades, the Reagan appointee demonstrated that a jurist does not need to command a majority of the court to exercise a wide and deep influence on American law. What's needed is a refusal to compromise or hide one's principles — a crucial lesson for Biden and progressives if they hope to change the direction of the court over the long term.
Maybe President Biden should favor someone who will buck the current orthodoxies, and write for a future generation? Remember, when Justice Scalia came on the bench, originalism and FedSoc were nascent. Scalia then rode the wave for thirty years, which largely brought us to the current moment. (For these reasons, it is unfair to compare any of the current conservative Justices to Scalia). Perhaps the Biden nom can start a new movement, which will bear fruits in a few decades?
The type of Justice that Biden should pick is not obvious.