Tom Goldstein at SCOTUSblog had interesting posts here and here about potential Democratic Supreme Court nominees. Goldstein collects some responses at that second link. He noted that most of the responses were from conservative bloggers, and speculated that “conservatives recognize the importance of judicial nominations much more than do liberals.” Prof. Balkin responds here with pretty much what I would have said, although he says it a lot better.
I don’t think it’s that liberals don’t care about judicial nominations, but their focus and priorities are different than conservatives’ right now. Liberals still have to pay attention to President Bush’s (lower court) nominations and can’t afford to look ahead just yet. It’s a luxury to be able to think about a Democratic president nominating Supreme Court justices. I think another reason liberals didn’t have a lot to say is that Goldstein’s list looks pretty good. One could quibble here and there with Goldstein’s final predictions, but it’s hard to have major complaints about the list. Goldstein promises a post soon discussing potential Republican nominees; I expect a lot more liberal commentary to that post.
Goldstein’s (revised) ultimate prediction is that the first three nominees in a Democratic presidency would be Judge Sonia Sotomayor, Dean Elana Kagan, and attorney Teresa Roseborough (on the assumption that she would get a circuit court judgeship early on in a Democratic administration). Of note, all three are women. I don’t have any great problem with this list, as such, but I have my doubts it will actually work out this way. I think that’s especially true if either of two things happen, both of which look fairly-to-somewhat likely as of now.
The first is if Republicans adopt the tactic Democrats have used during the Bush administration of stonewalling — to the point of filibustering — qualified but ideologically objectionable candidates for the lower court, with the ultimate goal of preventing those candidates from getting to the Supreme Court. If the Republicans do to Roseborough or Kagan (if the next President nominates her for a circuit court first) what the Democrats did to Miguel Estrada, that would make it more difficult to get her on the Supreme Court. There’s no reason to think they wouldn’t do this, right?
Second, if Hillary Clinton is the next president, I think there will be a subtle political pressure not to appoint three consecutive women to the high court. Even though several women are among the list of undoubtedly unqualified candidates in the right age range (especially Judge Diane Wood), I think a President Hillary Clinton would want to avoid the perception that her litmus test is a gender test. I think the first nominee will almost certainly be a woman, for all the reasons Goldstein posits, and even the second one might be. But I think three female nominees in a row from a female president would just raise a bunch of distracting issues.
I should make clear that I don’t have a problem with as many women on the court as someone wants to put there. But the idea of having to listen to blowhard anti-feminists whining about a “no men allowed” policy is so tiring — years in advance — that I wouldn’t mind avoiding it. The way to avoid it, of course, is to nominate a man, and there are several qualified candidates, or to nominate a woman who is so obviously qualified that the notion of a gender quota never gets any traction. (This is the John Roberts precedent — there were some minor complaints about replacing Justice O’Connor with a male, but no one could reasonably argue he wasn’t qualified. The male-female issue gained a little more traction with Samuel Alito’s nomination because it was the second chance to nominate a woman to replace O’Connor.) And if the GOP opposes a nominee like Roseborough to the point that she can’t get on the circuit court, that would leave her without that credential if she were nominated for the Supreme Court.
My point is that the odds of a Democratic president — especially if that president is Hillary Clinton — nominating the three women Goldstein suggests, in that order, is small. But the odds are good that the next president will have several chances, and I’m confident that the Democrats will take those opportunities very seriously. (What will be very fascinating to see is if the lefty blogosphere erupts in a Bizarro Harriet Miers scenario, if it feels a candidate isn’t liberal enough.) But, as Prof. Balkin suggests, the primary focus of a Democratic administration, from Day One, should be stocking the federal bench with potential future nominees. And even if those future judges never get elevated, I think Democrats have seen enough in the last six years to understand the value of filling the lower courts with the type of judges they want. The Democrats need to think systemically, and long-term, and I have no doubt they will.
Anyway, all this is so wildly speculative now that it borders on the absurd to imagine how the judicial nomination landscape will look in three or four years. But it sure is fun for law nerds like me.