The Volokh Conspiracy

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What Kind of Justice Should President Biden Pick? A Breyer? A Sotomayor? A Kagan? Or A Scalia?

It isn't obvious which way the President should go here.


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.

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.

NEXT: Today in Supreme Court History: February 11, 1803

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  1. Sorry, I drifted off remembering when Orrin Hatch said:

    “The president told me several times he’s going to name a moderate, but I don’t believe him. He could easily name Merrick Garland, who is a fine man. He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the (liberal Democratic base) wants."

    Then followed it up with:

    “I think highly of Judge Garland. But his nomination doesn’t in any way change current circumstances,.. I remain convinced that the best way for the Senate to do its job is to conduct the confirmation process after this toxic presidential election season is over."

    Long story short, I doubt Biden is interested in your opinions on the matter. But I’m sure his staff will be polite if you offer your guidance. Probably.

    1. I'm interested, which is why I'm here. Professor Blackman is here because people are interested. I'm sure the the liberal law blogs out there are probably asking a similar question.

      So why are you whining again?

      1. Libs never give up their resentments, still get plenty of "Gore won" takes even now.

      2. Professor Blackman is here because people are interested.

        [citation needed]

        1. Someone keeps responding to his posts.... It's usually a sign of interest...

        2. The fact that you read enough of the post and comments to reply here seems all the citation that is needed.

          1. Yeah, for someone like you and most of the rest of these dopes, that’s probably true.

            1. So, how do you explain your own comments?

          2. Did you perhaps learn reading comprehension at the South Texas College of Law? I am not disputing that some people are interested in some of Prof. Blackman's posts: I am questioning whether he posts because people are interested in them. In fact, I think it's pretty clear that neither Prof. Blackman nor Prof. Volokh gives two shits whether people are interested.

        3. No citation needed. Many no doubt wish they had as many downloads on SSRN as Nonblackman of South Texas swamp city fame, or even a fraction.

      3. Holy crap, did anyone here know “I Callahan” is Joe Biden?! He must be right? I said I doubt Biden is interested and here he is correcting me. Crazy world. Sorry, Mr. President. If you want to take Josh Blackman’s advice, by all means…

    2. Now you're just being a "wise guy."

    3. Garland's performance proves the GOP was right to block his nomination.

      PS: He will NEVER be on the SC.


  2. 1. Whatever Biden is saying, it doesn't matter. Of course he's going to say that he's honoring Breyer's legacy, that it will be a mainstream choice, etc. That's just politician speak. What do you want him to say? "Breyer was a loser and I'm glad he's gone. Ima pick a lefty that's so far out there that Che Guevera would tell me I've gone too far! Muahahahaha!"

    2. He's probably picking someone relatively young (no late 50s) and relatively uncontroversial but to the decided left of Breyer.

    1. "The left of Breyer"...

      How far left of Breyer can you go?

      1. Sotomayor? RBG? I'd say they're both left of Breyer.

        1. I suppose you could go all the way to Douglas if you wanted. I mean, what we really need is a new Justice who thinks "inanimate objects" should have standing to sue in court.

      2. Do you ever leave your RW bubble? If so, you must have noticed by now that everyone like you on the Right has a LW doppelganger who at this very moment is asking, with your self-same certainty, "how far right of Roberts can you go?" Of course they didn't always ask that. They used to ask "how far right of Kennedy can you go?" and before that, "how far right of O'Connor can you go?"

        Seeing the reductive silliness of one's mirror opposite ought to cause both of you to reconsider such pronouncements. In my experience you're both more likely just to shrug and say, "I'm right and he's ridiculous."

        1. "Do you ever leave your RW bubble?"
          -I live outside it.

          "how far right of Roberts can you go?""
          Roberts? Really?
          So here's my question. What decision of Breyer's in the last 5 years or so was not liberal enough for you?

          1. Your assumptions about how all the liberal justices are the same are indeed pretty lazy.

            Dunno how much I personally hate it, but Breyer famously swings with the conservative on Establishment Clause cases.

            And criminal procedure you'll see him side against defendants and with conservatives a good amount. Unsurprising given his sentencing commission history.

            1. Your assumption about my "assumption" is incorrect. Unsurprising.

              And, you didn't seem to answer the question.

              "What decision of Breyer's in the last 5 years or so was not liberal enough for you?"

          2. Whether Breyer is generally liberal enough for a moderate like me (he is) is very different from whether he could be much further left (he could). Sarcastro gave some reasons many progressives do find him insufficiently liberal, just like many on the right insist Roberts isn't a real conservative.

            That circles back to my first response, which while moving the goalposts you managed to avoid addressing. And in so doing you made my point.

      3. How far left of Breyer can you go?


        The answer's Hitler, isn't it??????

  3. I wonder if Presidents can really pick the type of justice they want. I think they pick pick a justice based on characteristics, but that justice becomes what they are on the court and by what cases are brought to them. How many justices break with what is expected of them? How many take up a role that history opens up for them? I suggest that President Biden go with his gut and let history take the course it will.

    1. "How many justices break with what is expected of them? "

      Democratic ones? None in the last 50 years.

      GOP ones? About half.

      1. Exactly right. Souter, Kavanagh, Roberts, etc.

        1. Roberts and Kavanaugh are consistently conservative votes, they're just not Clarence Thomas/John Birch level consistently conservative votes. But so many conservatives have a great deal of trouble with making distinctions and nuance so they're basically Souter and Stevens to them.

        2. This looks to me more like conservatives are much more eager to declare someone an apostate.

          As I noted above, Breyer has sided with conservative on Establishment Clause decisions. No one declares him a sekret conservative, nor calls Clinton a failure. Because conservative purity policing is fucking nuts.

      2. There’s a reason for that. Someone with lifetime tenure no longer has any reason to be voluntarily stupid.

        1. Someone with lifetime tenure no longer has any reason to be voluntarily stupid.

          Any justice who was previously an Article III judge (i.e., nearly all if not all of them) already had lifetime tenure.

          1. Lifetime tenure and no further promotion path. Lots of people manage the second but few can then add the the first.


      Well, that sounds like an argument for picking on sex and race. A black woman will likely stay black and female, barring subsequent gender-reassignment procedures.

  4. Its cute that you think Joe is making the pick.

    1. That was my thought.

      1. Who among the Illuminati do you think is actually making the pick? We liberals suffer here from the lack of a well-established finishing school for liberal judicial candidates.

  5. So who is Joe going to pick?

    1. Another Sotomayor. A firm "progressive" who knows how she got on the bench, and is determined to pay it back to the party and politicians who got her there. That means when Democrats are in power, government power gets expanded! and when Republicans are in power, all of a sudden there are checks that need to strip it back....
    -That would be Judge Jackson.

    2. a Kagan, a firm legal mind, but still liberal, who knows how to compromise and write well.
    -That would be Judge Kruger

    3. The best choice, a "compromise" candidate with the GOP who gets through the nomination process more easily, and brings balance to the court, less division, but still liberal enough.
    -That would be Judge Srinivasan....but his skin is the wrong shade of brown for Biden.

    But the real answer is...whoever Biden's minders tell him to pick, that's who he'll nominate.

    1. There is no need to nominate a compromise since a) the GOP has proven via the last two picks there is no such thing as compromise for them and b) the GOP abolished the filibuster for Supreme Court nominees so there's no structural reason to compromise either.

      Given the role of the Federalist Society in picking conservative justices, I don't think you have leg to stand on here.

      1. Any nominee [except Ifill] will all get at least 5 GOP votes, Childs probably more.

      2. I thought the current Democratic talking point is that the filibuster is the enemy of democracy, and must be done away with, so what exactly is your complaint? That the GOP beat you to it?

      3. a) There's plenty of compromise, especially if the conditions call for it.

        b) Structurally, the Democrats have the most slender advantage in the Senate possible. A 50-50 tie, with a VP tie breaker. Or it would be, if they didn't have one Senator out with a stroke, and Manchin and Sinema as moderates.

        Now, if you're a gambling man, you say "We got this, let's go with the most extreme candidate possible!". If you're a more cautious sort, you figure...."Something might go wrong...maybe if we moderate, will get a moderate liberal on the court for sure, rather than risk it all".

        1. Fuck off with compromise. After the GOP behavior on their last 3 picks, you don't get to insist on this being a time to come together.

          Declaring a Kagan-like pick is something NOT a compromise pick is a tell.

          As to your pragmatic argument, that's crap too. A pick with some conservative history will garner no additional GOP votes; there are those in the GOP caucus that will accept a Democratic President will pick a liberal, and those committed to lockstep opposition for reasons based more on populism than running the country.

          whoever Biden's minders tell him to pick
          You keep proudly falling for the dumbest GOP conspiracy theories.

    2. whoever Biden's minders tell him to pick,

      No. That was Trump, who let Leonard Leo make his nominations.

      1. Trump is many things, but somebody who let other people tell him what to do? Not that. It would have been a far more peaceful presidency if that was the case.

        1. Au contraire, Trump, like Palin and that other ilk, does what the base wants him to do. He's quite attuned to his base and quite willing to focus his efforts, rhetoric, etc., on what's playing for them at the moment. It's actually one his strongest political skills.

        2. Dude, Trump openly didn't make judicial decisions.

  6. Whichever way Biden goes, the important thing is that Prof. Blackman weigh in on the matter.

    1. and that that you weigh in on his thoughts.

    2. Yeah, how odd that a ConLaw professor would feel the need to comment on a POTUS' pick for a SCOTUS seat.

      1. It would not be odd… if it were someone other than Blackman. Who has, as always, nothing substantive to say on a topic but feels the need to blog about it anyway.

    3. Given the number (and length) of his posts, it’s a wonder he has anytime to teach.

      1. “Buy my books and write your thoughts” doesn’t take long to assign.

  7. Biden, or rather whoever is actually doing the picks, is somewhat constrained by the available pool of left-wing, black, female judges of the appropriate experience and age. If he hadn't committed to that, the larger pool would have allowed him to go further left.

    A secondary constraint is that whoever he picks must be somebody who can reach 50 votes, something not all of Biden's nominees have managed on account of ideological extremism or other problems. In this case the window before they potentially lose their Senate majority is kind of narrow, so I'm guessing they won't go with a totally insane pick, being afraid of not having time to confirm plan B.

    The black female pledge was to get Senator Clyburn's endorsement, and Clyburn is pushing Judge J. Michelle Childs. I think that gives her the edge, unless the extreme ideologues are in complete control at the White House.

    1. Clyburn is a Rep, not a senator.

      1. It's Brett's fantasy world; he assigns the roles.

      2. So what Bob.
        You again demonstrate that you know zip about politics

      3. Clyburn is already lobbying Scott and Madame Lyndsey -- at least one bows down and the nomination passes.

        If the positions were reversed Clyburn would spit in their faces -- expect at least Graham to fall to his knees.

    2. Biden, or rather whoever is actually doing the picks,

      You people are fucking amazing.

      1. There wasn't a chocolate chip/waffle cone justice available, unfortunately. Otherwise I'd be right there with you.

    3. What's particularly funny is that Clyburn is a Representative from South Caroline where Brett lives! I imagine he doesn't spend much time in that district though, so there's that excuse...

    4. “Everybody knew FedSoc picked the last three, but who’s picking Biden’s? A-HMMMMMMMMM?”
      -Brett, eventually

  8. Clarence Thomas, a lawyer, a devout Catholic, had no idea what Natural Law was? As. If.

    Natural law is described in the Catechism of the Catholic Church. But sure, a Catholic lawyer/judge would totally not be interested in the legal and ethical theories of his own faith.

    1. Pop quiz: You hear someone ask someone else, "What's your opinion on the practice of using bananas to motorize clay pigeons?" with the questionee responding, "I have no idea what you're talking about". Do you conclude that the latter is saying...

      1) He doesn't know what a banana is.
      2) He doesn't know what "motorize" means.
      3) The question appears to be referring to something nonsensical.


  9. Josh Blackman doesn't know what President Biden is looking for. My guess is he's looking for people like those on his rumored list.

    1. So...a black woman.

  10. Sotomayor is the least effective liberal justice when judged by advancing the liberal agenda. She's a "punch in the numbers, see what the liberal calculator says, and vote exactly that" kind of justice. No influence on anyone else, because they already know what the calculator says.

    People who hope for the constitution to remain our rudder should hope for yet another lightweight liberal.

    1. Don't worry, there will soon be another minority female on the Court for you to assume is inferior (what with all of *your* many relative accomplishments and all!).

      1. there will soon be another minority female on the Court for you to assume is inferior

        She will get a vote equal to any other SC justice. Nothing inferior there.

        I won't like her agenda, and I won't wish her success in advancing that agenda. I can't hope for someone I agree with, but I can hope for a lighweight.

    2. Unfortunately, I don't see any of the front-runners (whatever that means) as a Kagan. Another Kagan would be excellent.

    3. Sotomayor is a lightweight?

      Do you think the same thing of Alito?

      1. Do you think the same thing of Alito?

        Alito is no Thomas (who has better instincts), and no Gorsuch (who has better command of constitutional logic). He is however a principled constitutionalist unlike Roberts. He's a constitutionalist rather than a right wing ideologue. As such, he's principled in a non partisan way, even as he usually votes conservative.

        Sotomayor is a left wing ideologue. Her allegiance is to left wing causes. I suppose that's principled in a different way, but Maxine Waters would be equally as effective as a liberal SC justice.

        Imagine Marjorie Greene replacing Alito and I think we'd see what lightweight means.

  11. It's hilarious to see the Trump (the Federalist Society has given me a list!) supporters consistently trotting out the 'Biden's not going to make the pick himself' line. Swift boating at its finest!

    1. Have to agree. I am guessing that trump didn't spend more than 5 minutes looking at the nominee's information once it was given to him. Less if the briefing materials was all text and didn't have pictures.

      In addition to the Federalist list, we know that Kennedy hand-picked Kavauna as his successor.

  12. The best choice for the left would be a liberal "Scalia", that is, an intellectual heavy-weight who could establish, mostly in dissents or occasional concurrences, a powerful new jurisprudence in support of left policy preferences. The left will be going through a rough patch on the Court for several years (no secret: Biden will not be re-elected in 2024), and the "conservatives" will dominate the Court. Some of the conservatives are round-heeled enough that they will sometimes join with the liberals to support left positions, but the Court is not going to be the juggernaut for left progress that it once was. But the left "Scalia" could prepare the ground for a reversal of the Court's direction when a Democrat President or two has the chance to appoint several new justices.
    Only one problem: Who is the left "Scalia" who is also Black and Female?

    1. Biden will not be re-elected in 2024

      It's not too late, there may still be a Democratic president in 4 years' time. Congress doesn't look like they will really go after disenfranchisement in red states, but at least they'll probably fix the Electoral Count Act.

  13. His opinions, laden with indeterminate balancing tests, are very difficult to teach.

    I think that says less about Breyer and more about Blackman...

  14. I adore Justice Breyer, but his jurisprudence is incoherent.

    Is this like "I adore Mariah Carey, but her singing is awful!"?

    1. Yes, you have correctly picked up what Blackman is laying down.

      It's cute; he thinks he's subtle.

  15. Because only a conservative reading of the constitution is 'mainstream' when you confine yourself to the conservative ideological bubble and don't mind a bit of partisan hackery.

  16. QP: Does exclusive mean nonexclusive?

    Biden should pick a *nonlawyer* for the vacancy who is also a competent reader of English. Badly underrepresented and much needed.

    Someone who doesn't have to reverse the inferior appellate court and remand a case so that a state court of last resort can confirm on certified question that "exclusive" indeed means "exclusive" and that a provision that say state officials and employees may not enforce subchapter so-and-so means that state officials and employees may not enforce said subchapter.

    Currently only one member has the demonstrated capacity-cum-willingness to say that exclusive means exclusive, and obviate the charade that does nothing to inspire confidence in the court.

    More here: (Entirely dispensable and forgettable oral argument to probe whether exclusive means nonexclusive coming soon).

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