Cass Sunstein, Harold Koh, Hillary Clinton, Kathleen Sullivan, Larry Lessig, Politics, SCOTUS, SCOTUS Potential, Supreme Court

The Unconfirmable Supreme Court (Part 1): The Liberals

Update: Check out Part 2: The Conservatives.

As we were planning Above the Law’s Elena Kagan confirmation coverage, we got to thinking (always a dangerous thing around these parts): What if Supreme Court nominees didn’t have to defend themselves to the American public? What if the U.S. Senate’s constitutional privilege of “advice and consent” was revoked? What would the Court look like if the nominees didn’t have to even pretend to be moderate?

It’s a thought experiment that we’re sure has been done countless times before. But we’ve never done it, so we’ll plunge ahead.

Here are the rules: (1) The nominee should be unconfirmable. (2) The nominees on the right should make Elie angry; the nominees on the left should make Lat uncomfortable. (3) Mealy-mouthed moderates need not apply.

We decided to keep the five-four ideological balance of the current Court. Sure, we know that some people think that without the Senate, Presidents would nominate apolitical justices who have no discernible political slant. Sadly, apolitical justices = yawn.

In this post, Elie picks four pinko commie scumbags. In a future post, Lat will select five right-wing fascist nutjobs. Should be fun…

So, who are the SCOTUS nominees in the administration of President Elie Mystal?


I’ve only got four justices to appoint, so I need to make them count. As Chief Justice of the Left, there is only one choice:

Hillary Rodham Clinton
Age: 62
Current position: Secretary of State

Both Bill and Hillary graduated from Yale Law School in 1973, but Hillary was the superior attorney. Long before most of the country had heard of Bill Clinton, Hillary was regarded as one of the top female attorneys in the country. She was the first female partner at the Rose Law Firm, which was a pretty big deal back in the day.

But obviously I’m not appointing her because of her legal track record alone. In public life, Hillary has been nothing but a powerhouse. Her current stint as Secretary of State, trying to repair America’s damaged relationships, stands out here.

And we know that nobody puts Hillary in a corner. She’s a leader, a conciliator, and a fighter. And she’ll make a perfect Chief Justice should one of Lat’s picks die during a Democratic administration. What more could you want?

Lawrence Lessig
Age: 48
Current position: Professor of Law, Harvard Law School

I want my fire-breathing liberal law professor, and Larry, you’re it. This spot could also go to a guy like Cass Sunstein, but I gave the slight nod to Lessig because of his greater familiarity with this whole “Internet” phenomenon.

Notice how Republicans always seem to want to make government just small enough to fit into your bedroom? Lessig is like a T-cell on that disease. He puts the liberal in “closeted libertarian.”

Of course, he’s a fantasy choice and not a realistic possibility because with Lessig on the court, corporations would fear for their copyrights. Copyright holders would still get to make a lot of money, but not enough money to grossly hoard it to the detriment of society. And I imagine copyright holders wouldn’t like that one bit.

And hey, he’d go to the mattresses to keep the internet free and open. That’s ridiculously important.

Kathleen Sullivan
Age: 54
Current position: Partner, Quinn Emanuel

I was going to pick Larry Tribe for this spot, but I wanted to add a little West Coast flavor (and avoid criticisms for having an East Coast bias). Hence my selection of Kathleen Sullivan, the former dean of Stanford Law School.

And she’s gay! No innuendo, no whisper campaign, she’s just freaking gay. Deal with it.

Not only does Sullivan give me a constitutional law scholar to contend with whomever Lat picks to replace Justice Scalia, but as a name partner of Quinn Emanuel Urquhart & Sullivan, she also gives me a person with significant private practice experience.

Sullivan is such an easy pick, I’m sure some of you are saying, “Wait a minute, she’s not unconfirmable!” Don’t be so sure. Word on the street is that Larry Tribe pushed very hard to get Sullivan included on Obama’s short list this time around, but the president wouldn’t do it. If Obama doesn’t want her at a point where there are 59 Democratic Senators, the lady’s not getting on the real Supreme Court.

But she can enjoy her place here among the justices that never were.

Harold Koh
Age: 55
Current position: Legal Adviser, Department of State

I need somebody who knows the value of a strong dissent, and I’ll be damned if I get out of this without appointing any person of color. So sorry, Pam Karlan — Koh’s the man here.

More importantly, I need a justice who understands the importance and value of international law. Look, during the upcoming World Cup, I will happily chant “U-S-A, U-S-A.” At all other times, I find the reflexive American navel-gazing at its own system of jurisprudence troubling. American laws and standards are binding, but acting like there aren’t good ideas beyond our borders is just stupid. Why cut yourself off from helpful information just because it’s written in French? Koh understands that even if our system is “the best,” it could always be made “better.” And I’ll need someone to roll their eyes when one of Lat’s picks goes off on a xenophobic rant. My guys will be in the minority, after all.

So there you go: two women, one minority, a practitioner, a politician, a homosexual, and a straight white man who isn’t afraid of the internet. IDENTITY POLITICS SECURE!

Check back in later, to see Lat’s picks for the right wing of the Court….

(hidden for your protection)

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