The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
David Lat's Original Jurisdiction Substack is a vital resource to understand the Supreme Court vacancy. When I read David's columns, I try to gather whose perspectives he is filtering. Today's newsletter comes from #TeamKruger–literally. Apparently the Kruger network (likely Justice Stevens clerks, former DOJ employees, and academics) is unhappy that Childs and Jackson are getting too much oxygen. So they sent David missives that he converted into a collective "open letter." Apparently, Justice Kruger "would be mortified if she knew" her team lobbied for her. But they lobbied anyway. (Update: In an earlier version of this post, I wrote that #TeamKruger actually wrote the letter. I now realize David assembled different perspectives to form the letter).
First, #TeamKruger criticized Judge Childs's "small army of operatives, politicians, and pundits pushing for her." And, they write, Biden "should not choose a justice based on political favor-trading or political fallout." You hear that Rep. Clyburn?
Second, #TeamKruger suggests that Biden cannot reliably count on Child's vote. Rather, Biden would pick Childs because of "such niceties as a compelling personal story." (And what really happened to her father!?) Plus Childs is a black woman who may exhibit conservativism! (The Washington Post could not be reached for comment):
If this were a 6-3 Court in the other direction, i.e., in favor of liberals, Judge Childs might be a great pick. With that kind of dominance, you'd have the luxury of picking someone based on such niceties as a compelling personal story and a non-Ivy educational background, and things like her lack of appellate experience, her being a decade older, and her conservatism in employment law and criminal law wouldn't matter that much. You could lose her vote in the occasional case and still prevail.
Third, #TeamKruger says that Childs, as well as Jackson, would have to "learn on the job." (Elena Kagan could not be reached for comment).
Judge Jackson, who has been an appellate judge for less than a year, and Judge Childs, who has never been an appellate judge, haven't had the opportunity to develop these skills in the same way. And the Supreme Court—at least for a liberal justice at this critical point in our nation's history, with abortion, gun control, and affirmative action on the line—is no place for learning on the job.
I, for one, am enjoying this circular stabbing squad. And it will get uglier.