Janice Rogers Brown, Miguel Estrada, Politics, Richard Epstein, Richard Posner, Robert Bork, SCOTUS, Supreme Court

The Unconfirmable Supreme Court (Part 2): The Conservatives

Last week, inspired by the pending Supreme Court nomination of Elena Kagan, we embarked upon a fun little imaginative exercise:

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 What if the U.S. Senate’s constitutional privilege of “advice and consent” was revoked?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.

President Elie Mystal kicked things off by nominating his four liberal justices. And they did make me uncomfortable — half of them failed the bar exam.

I was in charge of picking the five conservative justices. So, who are my nominees?


Before I reveal their names, I have some methodological comments and caveats:

First, although this post is entitled “The Unconfirmable Supreme Court: The Conservatives,” I’m employing a very expansive, “big tent” understanding of the term “conservative” — not a particularly rigid or rigorous definition. It might be more accurate to think of my slate as “The Unconfirmable Supreme Court: The Non-Liberals.”

Some of the names I mention below might be considered social conservatives, while others might be considered libertarians. Some might be judicial conservatives, while others might be judicial activists — people who might “legislate from the bench,” but to advance conservative and/or libertarian views.

My list reflects the healthy diversity, as well as the tension — conservatives vs. libertarians, judicial conservatives vs. judicial activists — that runs through the Federalist Society. (I actually think that there’s more ideological diversity and freedom of thought on the right than on the left, but that’s a post for another day….)

Second, I took the “unconfirmable” factor seriously, but realistically. Dahlia Lithwick recently expressed concern over a perceived double standard for staunch conservatives versus staunch liberals, arguing that many leading legal conservatives could be confirmed to the SCOTUS, while their liberal counterparts could not. Professor David Bernstein disagreed with Lithwick, listing a slew of figures on the right that he sees as unconfirmable.

In this debate, I tend to lean (slightly) in favor of Bernstein — unlike Lithwick, I think there are lots of conservative or libertarian legal luminaries who are unconfirmable. But, at the same time, I also believe there are many solid conservatives who could be confirmed, at least if the Senate were controlled by Republicans. (I discuss confirmability more below, in explaining particular picks.)

Third, and in arguable tension with caveat #2, I went for “Unconfirmable,” not “Crazy.” When I posted Elie’s list of liberals on my Facebook wall and solicited suggestions for conservative justices, I received lots of nutty nominees — e.g., Ron Paul, Rand Paul, Sarah Palin, Mark Levin, Elizabeth Halverson, and Mary Cheney. Many of these figures aren’t even lawyers. Although you don’t need a law degree to be on the Supreme Court, there are so many deserving, non-insane nominees out there that I didn’t want to waste a seat on someone totally ridiculous.

So, with the preliminaries out of the way, here are my nominees (and alternates), starting with the Chief Justice:

1. Richard Posner
Age: 71
Current position: Judge, U.S. Court of Appeals for the Seventh Circuit

For Chief Justice, I’d want someone with (1) prior judicial experience, and ideally prior experience in judicial administration (because the Chief Justice is also the head of the judicial branch); and (2) a great legal mind. Judge Posner — the former chief judge of the Seventh Circuit, and one the Greatest Legal Minds of in the country — obviously fits the bill. (He’s also hilarious; check out the podcast I did with him, available on the University of Chicago Law School Faculty Blog.)

At the same time, Posner is clearly unconfirmable (setting aside whether a Republican president would even nominate a 71-year-old judge). Two words: baby sellling. As Tom Goldstein wrote, Posner is “stunningly brilliant, [but] too much of a free thinker to be nominated to the Supreme Court.”

In that same sentence, Tom Goldstein mentioned my runner-up for Chief Justice: Chief Judge Alex Kozinski, of the Ninth Circuit. In addition to bringing sexy back to the bench, the reigning male superhottie of the federal judiciary would bring a wicked wit to sober SCOTUS proceedings — wit that will be missed without Justice Antonin Scalia on the Court.

My second runner-up for Chief Justice: Judge Posner’s colleague, Chief Judge Frank Easterbrook of the Seventh Circuit. He’s an amazing mind, a tremendous writer, and a terrifying presence at oral argument.

After Posner, Kozinski, and Easterbrook, there are several other folks who would be great for this seat (which, by the way, I’m reserving for a white male judge — I feel bad for them, since these days, being white and male and having judicial experience are all strikes against a potential nominee). They include such leading feeder judges as Judge Diarmuid O’Scannlain (9th Cir.), my former boss; Judge J. Harvie Wilkinson (4th Cir.), who came thisclose to making it on to the Court in the past; and Judge Brett Kavanaugh (D.C. Cir.), who represents the next generation of judicial superstars. I would also mention Judge William H. Pryor, Jr. (11th Cir.), who also served as Attorney General of Alabama, and former Judge Michael McConnell (10th Cir.), the genius legal academic.

Why do I place the trio of Posner, Kozinski and Easterbrook ahead of this next tier of judges? While the nominees in my second grouping might engender some resistance, they aren’t nearly as “unconfirmable” as my top three. And for purposes of this exercise, “unconfirmability” is a prerequisite — no Elena Kagans here!

2. Janice Rogers Brown
Age: 51
Current position: Judge, U.S. Court of Appeals for the D.C. Circuit

No Lat-appointed Court would be complete without a fabulous right-wing judicial diva. And, in my humble opinion, the reigning diva is the Honorable Janice Rogers Brown, of the D.C. Circuit.

Judge Brown should be a well-known figure to readers of Above the Law (or, before ATL, Underneath Their Robes). She’s African-American, a sharecropper’s daughter, and a former justice of the California Supreme Court. And yet, despite this demographic profile — African-American, female, from California — she’s an outspoken libertarian, whose fearlessness makes Attila the Hun look like a wimp. Delicious!

My judicial diva alternates, who for varying reasons don’t have quite the same diva quotient as JRB:

  • Judge Diane Sykes (7th Cir.): she’s brilliant and beautiful, but not enough of a diva; see (or hear) my podcast with her, where she shows how nice and down-to-earth she is;

  • Judge Consuelo Callahan (9th Cir.): this super-stylish Latina, the Dancing Queen of the Federal Judiciary, is more confirmable than Brown; and
  • Judges Edith Jones and Priscilla Owen (5th Cir.): okay, they’re probably unconfirmable too; but they’re not as fabulous as Brown.

3. Miguel A. Estrada
Age: 48
Current position: Partner, Gibson Dunn & Crutcher

No offense to Justice Sonia Sotomayor, but the Honduras-born Estrada should have been the first Latino on the Supreme Court. (Yes, we’re aware of Cardozo, and no, we don’t count him.) But the Democrats shamefully shrewdly kept him from making it on to the D.C. Circuit.

Estrada has amazing, and amazingly broad, experience. The former Kennedy clerk and S.D.N.Y. prosecutor has done it all — trial and appellate, civil and criminal, litigation and transactional (because he did corporate work at Wachtell Lipton before joining the U.S. Attorney’s Office). And, as I know from both clients and people who have seen him at argument, he’s an incredible lawyer — although probably one with a few excessively candid remarks that might count as skeletons in his closet, since he’s not known to suffer fools gladly or to censor himself (unlike his more politic pal, Elena Kagan, whom he has endorsed for the high court).

This is why Miguel Estrada gets a seat on the Unconfirmable Supreme Court. If he couldn’t make it to the D.C. Circuit, he definitely couldn’t make it to the Supreme Court (even though — here’s a fun fact — his wife works there; Patricia McCabe Estrada is the Court’s Deputy Public Information Officer).

Alternates for this seat, the “distinguished D.C. lawyer” seat: Estrada’s partner at Gibson Dunn, Ted Olson (who might be more confirmable now than a few years ago; from the point of view of liberals, he’s “atoning” for Bush v. Gore with his work on the Prop 8 case); Peter Keisler, of Sidley & Austin; Maureen Mahoney, of Latham & Watkins; and former Solicitor General Paul Clement, now at King & Spalding. (Mahoney and Clement are not “unconfirmable” enough for this Court.)

4. Richard Epstein
Age: 67
Current position: Professor of Law, NYU and the University of Chicago (I take no sides in this New York / Chicago tug of war over Epstein)

This post is getting long, so we’ll be brief: he’s Richard freaking Epstein. He has an honorary doctorate from the University of Ghent. And yes, there is room on the Supreme Court for two polymaths from the Chicago Law faculty named “Richard.”

The alternates for this seat, the “brilliant right-leaning law professor” seat, are too numerous to mention. I guess I’d say: (1) most of the masthead of the Volokh Conspiracy, with a special shout-out to Randy Barnett, who seemed to get the most mentions among my friends (for his brilliance or his unconfirmability, I don’t know); and (2) John Yoo, because putting him on the Court would drive the left crazy (in some cases, probably literally).

UPDATE: Good call, commenters; I’d add Viet Dinh to the list of alternates (although query whether he is “unconfirmable”).

5. Robert Bork
Age: Older than Methuselah 83
Current position: Verb

Could have been so beautiful; could have been so right. And if Bork hadn’t gotten, well, “borked,” maybe we would have meaningful, interesting, and substantive confirmation hearings — instead of what we have now, a “vapid and hollow charade” (in the memorable words of Elena Kagan).

* * *

So there you have it: the five conservatives — or, to be more precise, the five non-liberals — that I would nominate to my imaginary SCOTUS. There’s nice diversity here, in many senses of the word. There’s demographic diversity, of course, with three white males balanced out by a Latino and an African-American woman. But there’s also experiential diversity: two sitting judges, a leading practitioner, a distinguished law professor, and a grumpy old man. Finally, there’s the most important kind of diversity, diversity of opinion. I suspect that if you threw these five into the justices’ conference room, you’d wind up with about eight different opinions on any given issue.

Will even one of these five ever come close to being confirmed to the Supreme Court? Hell no. But a boy can dream, right?

P.S. For the sake of diversity, I would have wanted to put a former politician on the Court. But the two names that immediately came to mind, Senators John Cornyn (R-TX) and Orrin Hatch (R-UT), really aren’t “unconfirmable” (especially when you take into account the senatorial courtesy that would be shown a colleague nominated to SCOTUS).

I also thought of former Senator Arlen Specter, who’s looking for a job these days. But I don’t count Specter, a liberal Republican who then defected to the Democrats, as “conservative.” It would be fun, though, to watch Senator Specter get raked over the coals at his hearings, just as he did to numerous nominees before him.

What Are Liberal Law Students So Sad About? [Slate]
Epstein for the Supreme Court? [Volokh Conspiracy]

Earlier: The Unconfirmable Supreme Court (Part 1): The Liberals

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