MyDD :: A Love Supreme

It's more than just Coltrane's sickest album. It's also what I feel for the highest court in the land.

And in light of that love, it's never too early to start handicapping the candidates' possible SCOTUS picks!

Supreme Court appointments worm their way into political discourse in strange ways. Generally speaking, voters don't give a shit: no politician scores huge points by talking about the least accountable branch of government. But to movement soldiers on the Right and the Left, control over the Court is the great prize. In this bizarro campaign season, when both parties are facing the possibility of revolt, partisans of the candidates are using the Court to rally the troops. Unite around Obama or turn the Court over to Scalia and Thomas! Vote for McCain or permanently lose the chance to overturn Roe!

The current age of composition of the Court makes this election particularly crucial. The liberals are older, the conservatives younger: in January 2009, Stevens will be 88, Ginsburg 75, Breyer 70, and Souter 69. Kennedy and Scalia will both be 72, Thomas 60, Alito 58, and Roberts a frisky 53. The next president will likely be able to replace Stevens, Ginsburg, and Souter (who hates being on the Court)--Breyer, Scalia, and Kennedy love being justices, and Thomas will hold on grimly until his seat is plucked from his cold, dead hands. Three seats for the November victor is a legacy worth fighting for: FDR's picks were radically changing American jurisprudence and society for thirty years after his death, and Reagan's might end up doing the same.

Yesterday's NYT spotlights the differences between McCain's and Obama's philosophies on SCOTUS appointees. Briefly: McCain has sold his soul to the right and pledges more of Roberts and Alito; Obama wants empathy.

Of course, these handy soundbites greatly simplify things. Let's not forget that McCain, the champion of campaign finance reform, filed an amicus brief in FEC v. Wisconsin Right to Life to no avail, as the two justices he claims to want to emulate effectively gutted the Court's previous upholding of McCain-Feingold. And Obama taught law for ten years at the University of Chicago, hardly a hotbed of empathy-based jurisprudence. Campaign rhetoric is campaign rhetoric: I expect that both candidates would hew closer to the ideological center in their SCOTUS picks.

With that in mind, and without further ado, The October Protocol shortlists.

OBAMA

Sonia Sotomayor: Second Circuit (Clinton); 54 years old; appointed to the Southern District of New York by GHW Bush; would be the first Hispanic justice since Cardozo; reliably liberal; widely considered a front-runner if the Democrat wins.

Diane Wood: Seventh Circuit (Clinton); 58 years old; certified MILF; mentioned as possible pick for Kerry; more moderate than other liberal judges; academic star and respected judge; from Obama's home circuit.

Merrick Garland: D.C. Circuit (Clinton); 56 years old; oversaw the Oklahoma City and Unabomber investigations for the Clinton DOJ; considered relatively moderate.

Deval Patrick/Jennifer Granholm: Governors of Mass. (52) and Mich. (49), respectively. Obama has floated the idea of nominating a politician in the mold of Earl Warren, former (Republican!) governor of California. Patrick was head of the Civil Rights Division in the Clinton DOJ; Granholm was the Michigan attorney general. Both have the legal chops and the real-world experience to add a shot of pragmatism to a Court made up entirely of former circuit court judges; both are also partisan Democrats, and might only add to the politicization of the Court.

Harold Koh: Dean of Yale Law School; 54 years old; clerked for Blackmun; Ass't Secretary of State for Democracy, Human Rights, and Labor under Clinton; respected author and essayist on human rights and international law; criticized as a partisan Democrat; intellectual heavyweight; would be first Asian-American on the Court.

Other options: Kim Wardlaw (9th Cir.); Leah Ward Sears (Georgia Supreme Court); Cass Sunstein (University of Chicago); Barrington D. Parker (2nd Cir.).

MCCAIN

Michael McConnell: Tenth Circuit (GW Bush); 53 years old; prominent Constitutional scholar; widely cited as a likely pick to replace Rehnquist; proponent of originalism; supports a Constitutional amendment banning abortion--but then again, thinks it's the only way to do so.

Alex Kozinski: Chief Judge, Ninth Circuit (Reagan); 58 years old; distinguished essayist and legal scholar; idiosyncratic judge with a strong libertarian bent; not an `originalist' like Scalia or `batshit crazy' like Thomas; author of the greatest judicial line ever: "The parties are advised to chill."

Maureen Mahoney: Appellate lawyer, Latham & Wilkins; 54 years old; deputy Solicitor General under GHW Bush; distinguished advocate; argued for the University of Michigan in favor of its affirmative action program in Grutter v. Bollinger; highly competent attorney in the mode of John Roberts.

J. Michael Luttig: General counsel for Boeing; 54 years old; star of the conservative legal movement who resigned from the Fourth Circuit for a higher-paying job; often compared to Scalia in philosophy and temperament; clashed with Bush administration over executive prerogatives in the Jose Padilla case.

Edward Prado: Fifth Circuit (GW Bush); 61 years old; former federal public defender; touted as a moderate option to replace O'Connor; subject of a "Draft Prado" movement for a Latino Supreme Court justice not named Alberto Gonzalez.

Other options: Janice Rogers Brown (D.C. Cir.); Priscilla Owen (5th Cir.); Emilio Garza (5th Cir.); Eugene Volokh (UCLA and The Volokh Conspiracy).

And the doozy:

Richard Posner: Seventh Circuit; 69 years old; widely considered the most brilliant judge in America; immensely prolific scholar and philosopher; self-declared Pragmatist in the mode of Oliver Wendell Holmes; noted proponent of the Law & Economics school; supports both the president's power to order torture and the legalization of soft drugs; unquestioned intellect and lack of partisan identification make him a lock never to sit on the Supreme Court.