Last week I discussed Tom Goldstein’s posts about a future Democratic president’s Supreme Court short list at SCOTUSblog. I mildly criticized Goldstein for suggesting that liberals don’t care as much about the Court as conservatives do. Now Goldstein has posted about a future Republican president’s short list. So I suppose I ought to offer a response to this one as well, to carry the flag. (Prof. Kerr at the VC has the first response to Goldstein I saw; it’s worth reading too.)
Goldstein thinks there will be fewer vacancies under a Republican president, at least during the first term, and of course barring any unforeseen illnesses or deaths. But he predicts Justice Souter will retire in summer 2009 either way, and that another vacancy would come late in the next presidential term or early in the term of a president elected (or re-elected) in 2012. For the record, I raised the possibility a while ago that Justice Souter might even quit this summer, so I agree with Goldstein’s bet that he will be the next to go.
Goldstein ultimately predicts Judge Consuelo Callahan for the first vacancy, and Solicitor General Paul Clement for the second. I think Callahan would get some of the Harriet Miers treatment, and the benefits to a GOP president for nominating a Hispanic woman to the Court wouldn’t be worth the conservative backlash. So I think Judge Janice Rogers Brown is a likelier nominee, but only if the vacancy does come in 2009 (when she will be 60 years old), with Judge Diane Sykes being my very close second choice, with Callahan or one of Prof. Kerr’s suggestions, Judge Paul Cassell, in a tie for third. For a second vacancy, my money would be on Sykes or Clement or Judge William Pryor.
I find handicapping this horse race to be harder than the Democratic one, for a couple-three reasons. First, as Prof. Balkin discussed in his response to Goldstein’s take on future Democratic nominees, President Bush will have had eight years to stock the lower courts and the Justice Department with potential nominees in the “right” age range who have built up credentials and connections. Add to that, if a Republican is elected in 2008, whatever appointments that president will be able to make before a vacancy arises. So there are more candidates who are at least minimally qualified.
Second, I haven’t studied it too very closely, but I certainly get the sense that the potential GOP presidents have a more varied approach to, and emphasis on, judicial nominations than the Democratic candidates do. Rudolph Giuliani has his judge committee helping him, but a lot of GOP voters retain doubts about how committed he is to appointing “movement” conservatives to the bench. A candidate who wants to back away from President Bush’s handling of the Iraq war might not make it his first priority to choose judges based on their feelings about separation of powers, to take one example. Some candidates are obviously going to make abortion more of a litmus test. Conversely, my sense is that any Democratic president among the likely nominees would feel intense pressure (and probably genuine desire) to appoint a woman (and/or minority) supportive of abortion rights. That narrows the pool of potential Democratic picks somewhat, in a way that doesn’t apply to a Republican president who, as Prof. Kerr suggests, won’t feel great pressure to appoint a woman.
Finally, so much of this is going to depend on what happens in the 2008 Senate elections and the willingness of a Republican president to spend political capital on judges. If the Democrats increase their margin in the Senate, I think a Republican president would almost have to “water down” the nominee a bit, and we’ll end up with a Justice Kennedy instead of a Justice Bork. If a vacancy comes six months into a new administration, with the president facing enormous pressure to do something about Iraq (and maybe Iran), how long will he be willing or able to spend talking about judges? If the Democrats have something in the neighborhood of 55 votes, they could reject any nominee the president sends, and end the honeymoon in short order. I won’t underestimate the appeal of getting half a loaf, calling it a victory for bipartisanship, and presenting the image of a president who gets things done.