The Best Supreme Court Shortlist Of Them All: Gary Johnson's
Say what you will about these folks, but at least they're interesting.
Gary Johnson (by Alex Wong/Getty Images)
We have a problem with the U.S. Supreme Court, as diagnosed not too long ago by Judge Richard Posner. And no, it’s not that the justices aren’t qualified (or, to be more precise, not in the top 1,000 American lawyers).
The justices are boring — probably a majority of them (although I won’t name names). Even the ones with interesting and inspiring pre-robescent lives, like Justice Clarence Thomas and Justice Sonia Sotomayor, lost some of their colorfulness after joining the Court. They play it safe, they don’t ruffle feathers, and they refrain from controversial comments. Justice Antonin Scalia was an exception, but now he’s gone. (And Justice Ruth Bader Ginsburg, aka the Notorious RBG, isn’t an adequate substitute; whenever she says something controversial, she quickly apologizes or walks it back.)
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Judge Posner identified the problem in Reflections on Judging (affiliate link), blaming the blandness on the confirmation process (and citing this Above the Law post by Elie Mystal, So You Want To Be A Supreme Court Justice? Don’t Sniff Glue). Per Posner:
[The confirmation process today is] protracted and highly invasive of privacy, and controversial candidates have little chance of being nominated or if nominated confirmed. As a result there has also been a reduction in the variance of court of appeals judges (also of federal district judges and Supreme Court Justices); there are fewer duds, but also fewer stars.
So that’s why I’m a fan of the Supreme Court shortlist just released by libertarian president candidate Gary Johnson (and not just because I have some right-of-center tendencies). Say what you will about these folks, but at least they’re interesting:
• Ninth Circuit Court of Appeals Judge Alex Kozinski;
• Libertarian legal scholar Randy Barnett of the Georgetown Center for the Constitution;
• D.C. Circuit Court Judge Janice Rogers Brown;
• Former Republican Congressman from California Tom Campbell, currently Dean of Chapman University School of Law;
• Miguel Estrada, a lawyer with the firm Gibson, Dunn & Crutcher;
• Law professor Jonathan Turley of George Washington University Law School.
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Johnson previously mentioned Tom Campbell and Jonathan Turley as SCOTUS possibilities; the other four names are new.
All six figures on this list are brilliant and well credentialed. But that’s not what makes Gary Johnson’s list better than Donald Trump’s two official lists or Hillary Clinton’s rumored list. The main difference is that Gary Johnson’s people are personalities.
Sure, there are some standouts on the Trump and Clinton lists — such as Texas Supreme Court Justice Don Willett, who’s a Twitter celebrity, and Senator Cory Booker, the star athlete turned superhero mayor. For the most part, though, the Trump and Clinton shortlisters seem like they were raised in a hydroponic résumé farm, bred for brilliance and blandness — the perfect combination for making it to One First Street.
That most definitely cannot be said of Gary Johnson’s picks. Here’s a bit about each:
Judge Alex Kozinski: Judge Kozinski needs no introduction to regular readers of Above the Law (or, for that matter, Supreme Ambitions (affiliate link)). Damon Root of Reason offers a good summary of his appeal, noting the judge’s “principled defenses of the First Amendment, the Second Amendment, limited federal powers, and the due process rights of criminal defendants.” And let’s not forget his TV and movie career, including an appearance on the Dating Game, and his status as the #1 Superhottie of the Federal Judiciary (achieved after self-nominating and campaigning for the honor).
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Randy Barnett: The Georgetown law professor is most famous for his libertarian legal advocacy, including the medical marijuana case of Gonzalez v. Raich, which he argued before SCOTUS, and NFIB v. Sebelius, the major Obamacare challenge. Most presidential candidates (of either party) would run away from a résumé featuring such controversial cases, but not Gary Johnson.
Judge Janice Rogers Brown: Be still my heart! As noted by Damon Root, the D.C. Circuit judge “is revered in libertarian legal circles for her stirring votes in defense of the Fourth Amendment against pro-police ‘orthodoxy’ and in defense of economic liberty against ‘burdensome regulation.'” Personally speaking, I worship her for being a right-of-center judicial diva (although, for the record, Judge Brown respectfully dissents from diva-hood). Back in 2010, I mentioned her in my round-up of uncomfirmable conservative dream candidates for SCOTUS.
Tom Campbell: For the legal elitists among you, please note that Tom Campbell, before he joined the faculty (and served as dean) of Chapman Law, taught law at Stanford and business at UC Berkeley. This former SCOTUS clerk also has a Ph.D. from the University of Chicago — in economics, a Chicago specialty — and a J.D. from Harvard Law. As a former U.S. Congressman and California State Senator, he would bring much-needed political experience to the Court.
Miguel Estrada: Also a Harvard Law grad and ex-SCOTUS clerk, Estrada was famously nominated to the D.C. Circuit back in 2001, before falling victim to a filibuster (and despite receiving a unanimous “well-qualified” rating from the ABA). He’s widely regarded as one of the finest appellate advocates in the nation, praised by Justice Elena Kagan — with whom he disagrees on many issues — as “an extraordinary lawyer” with “a towering intellect.” Being a Gibson Dunn partner might not sound so sexy, but those who know Estrada are familiar with his strong opinions and irreverent sense of humor (which is why he earned a seat on my unconfirmable conservative Supreme Court).
Jonathan Turley: Name a notable case or controversy from the past decade or two, and chances are that Jonathan Turley was involved. The George Washington University law professor supplements his scholarship with real-world litigation, in matters ranging from the Clinton impeachment to the Sister Wives case, and he engages in frequent media commentary, in broadcast and print as well as online.
So there you have it: Gary Johnson’s half-dozen SCOTUS picks. Taken collectively, they combine credentials and colorfulness in ways that the Trump and Clinton shortlisters can only dream of.
With the election less than a week away, Clinton and Trump partisans are wringing their hands over the shifting polls and forecasts. Does Hillary Clinton have an 87 percent or 71 percent chance of winning?
Gary Johnson has a zero percent chance of winning — and that’s too bad, at least for the Supreme Court.
Libertarian Gary Johnson Releases List of Potential Supreme Court Nominees [Reason]
3 Cheers for Gary Johnson’s Supreme Court Short List [Reason]
Earlier: Hillary Clinton’s Supreme Court Shortlist: 11 SCOTUS Possibilities
Making SCOTUS Great Again: Trump’s Supreme Court Shortlist
Making SCOTUS Even Greater: Trump’s Supplemental Supreme Court Shortlist
Judge Richard Posner On SCOTUS: ‘The Supreme Court Is Awful’
The Unconfirmable Supreme Court (Part 2): The Conservatives
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].
