One of the most important responsibilities of a president is to name judges to the Federal courts, and especially to the that "imminent Tribunal", as Mr. Lincoln called it, The Supreme Court. ( Incidentally, most of Lincoln's picks-Miller, Field, Davis, Chase- were very good, indeed. ) Presidents come and go; Judges are forever. ( Charles Whittaker and Arthur Goldberg not withstanding.)
This is the begining of a series focusing on potential Supreme Court Justices. ( And a couple of possible Appellate Court Judges as well. ) I will begin with potential Romney picks. This will be in two installments. the first installment will focus on "dark Horses", then I will reveal my 'most likely candidates.)Then I will briefly mention some other conservative/libertarian possibilites who might emerge if the unlikely happens and one of the other Republicans emerges as the nominee. Then, I will turn to Obama and his pool of candidates. That will also begin with the "outsiders" and then turn to the "likelies.". Our last installment will look at some appellate possiblities and at the 'Supreme Court of tomorrow."
At least four of the current Judges are nearing eighty and/or have serious health problems. The Two "conservative" , or at least non-liberal Justices are Scalia and Kennedy, while the two "liberals" are Breyer and Ginsburg. The last two are more likely to retire if Obama is re-elected, while it is almost certain that only a Romney Presidency will induce Scalia to retire. Kennedy, as usual, is the wild card. On the one hand, he is the "swing justice", and, as a result, one of the most powerful men in America. On the other, he has been on the court for over twenty years. So, at least minor changes on the Court are likely, and major changes are possible. As will sooon be evident, I recieved some advice on this from Dean Jim Chen of the Louis D. Brandeis Schoool of Law at the University of Louisville.
Candidates, Part One: The unlikely, starting with the impossible
Section One The Impossible.
1. The Apolitical Polymath
How's this for a resume? Our first impossible candidate graduated with a quadruple major ( BA Summa CumLaude) from Emory, where he also got an MA. He was then a Fulbright scholar at the University of Iceland. After that, he graduated at the top of his class from Harvard Law School, where he knew and worked with a future President of the United States. ( No, not Mitt Romney). He then clerked for J. Michael Luttig on the Fourth Circuit and Clarence Thomas on the Supreme Court. He then went into academia, teaching first at the University of Minnesotta Law School and then becoming Dean of the Brandeis School of Law at the University of Louisville. He has become an internationally recognized authority on agricultural law and the new field of disaster law. He has also pioneered in the application of sytems analysis and mathematics (particularly chaos theory and caastrophe theory), among many other disciplines, to law. Having sampled his writings, I would say that he is witty, leaned, and writes like a dream. On top of all this, he is a member of an ethnic group, ( Chinese Americans), which is yet to be represented on the Supreme Court. in fact, imentioned him on Facebook, surmising that he might at least be a likely candidate for the sixth circuit, and a distant possibilty for the US Supreme Court itself. His name is, you guessed it, Jim Chen.
There are a couple of problems with this hypothesis. For one thing, the last Supreme Court Justice to catapult directly from Law school teaching to the High Court was Frankfurter in 1939. Kagan, Scalia and Kennedy had experience in academe, but they also did their time outside of the halls of ivy. Kagan was Solicitor General, and Scalia and Kennedy were federal Judges when they were named to the High Court.
However, the person who was first to prick the Chen balloon was...Chen himself. He explained to the writer that it is not enough to be brilliant, articulate and and a representative of a minority. Instead, one must politically active and reliable. He claimed that he was neither. So the Courts loss will be the academy's gain.
This tells us something. The least likely candidates are not the less intellectually distinguished ones; they are the ones who have few or no political liabilities. Understanding this, let us turn to some other total outsiders, beginning with three men who are arguably the most brilliant judges on the federal Bench.
2. The Seventh Circuit Dynamic Duo and the Ninth Circuit Lone Ranger
A.The Nietzschean Baby -Seller:
Some judges leave paper trails, Judge Richard Posner of the Seventh Circuit has left a superhighway. He has written a stream of brilliant, if somewhat controversial books. His Yale thesis was on Yeats and Nietzche. After graduating, with honors, from Law School, he clerked for Justice Brennan, who later called him one of the two men he had known who deserved to be called 'geniuses'. Starting as a liberal, he switched to the libertarian Right, and pioneered the "Law and Economics" school at the University of Chicago. His legal philosophy could be called the bridge between F.A. Hayek and Nietzsche. He has called for selling babies on the open market, as well as voicing more exotic views. Those confirmation hearings would really be something.
B. The Bearded Bruiser:
Frank Easterbrook is a bit younger than Posner. He is a Swarthmore (BA, with highest honors, in political science and economics, ) and Chicago Law graduate. Another "law and economics" guru, he is less ideologically fervent than his older colleague.( Then again, everybody other than Judge Napolitano is less fervent than Posner, at least on the libertarian Right. ) Easterbrook is the most cited appellate Judge, and he has had profound influence on Judges of every ideological stripe. He is also relentless in his questioning of lawyers who appear before him- a true bruiser. Add to this a very impressive beard. In short, probably too smart for his own good.
C. The Soft - Core Aficionado (?)
Reviled by conservatives, extolled by liberals, the Ninth Circuit could hardly be called a bastion of judicial conservativism. Indeed , most of the more capable "conservative" judges on the Circuit are pretty long in the tooth. ( Fernandez, Rymer, etc.) Their time, if they had any , was probably in the first Bush Administration. However, there is an exception. He is "only" in his very early sixties. In addition, he is Jewish, extremely intelligent, and a gifted writer with a great sense of humor. After compiling an outstanding record at UCLA, first in Economics and then in Law, he clerked on the ninth Circuit for future Supreme Court Justice Kennedy, and on the Supremes for Warren Burger. His name is Alex Kozinski. He and his parents fled Commmunist Rumania when he was very young, and Reagan named him to the ninth circuit at a frightfully early age. Kozinski is highly respected in the legal profession- even among most liberals. He is definitely conservative. He wrote a review of Hadley Arkes' book on Justice George Sutherland for National Rreview entitled "One of Us', and it was fairly clear that by "us" , he was not speaking of "former US Senators born in England and raised on the frontier." However, he was reprimanded by his colleagues for having certain...lets just say images of certain, how shall we put it, agile and attractive women on his office computer. Of course, he was just doing research. Of course.
3 The Conservative Fiddle Playing Political Theorist
All of the "impossibles" we have mentioned so far represent different shades of the libertarian law and economics perspective, from the reasonable ( Dean Chen ) to the extreme ( Judge Posner.) Our fifth "impossible' is of a different ideological stripe. Like Easterbrook, he is an honors graduate of Swarthmore, and, like Easterbrook, he is widely considered a genius. However, that is where the resemblance ends. His name is Robert George. He teaches political Science( focusing on jurisprudence and political theory) at Princeton At Princeton, he helped found the traditionalist Anscombe Society ( Named for that most formidable of Wittgenstein's disciples, the great philosopher and fervent Catholic, Elizabeth Anscombe.). He also founded The James Madison Program in American law and Instituions, a conservative think tank, on the Princeton Campus. He is a Syrian Orthodox Christian, pro-life, and the possessor of an M.Phil and a D.Phil in political philosophy from someplace called "Oxford University. " Finally, he an accomplished bluegrass fiddler and a fine guitarist of the Jerry Reed/Chet Atkins school.There can be little doubt of his intellectual qualifications. However, nominating him would ignite a culture war firestorm. Well, maybe he could charm the Senate Judiciary commitee by his fiddle playing. Right.
4. Sui Generis: Proud to be a Share Croppers Daughter
Janice Rogers Brown. Like Alex Kozinski, this is another California libertarian who went to UCLA Law School. A Black woman, she grew up as share-croppers daughter in the Old South. Her family moved to the golden State in the fifties. She went to California State and UCLA, where she got excellent grades. After graduating from UCLA Law, she spent many years as a lawyer for California State Government. in her youthful days, she was in, her own words, almost a Maoist, but shifted in the other direction-extremely far in the other direction, in fact. She was chief legal advisor to California moderate Republican Governor, Pete Wilson, who was impressed enough to elevate her to the California Appellate bench, and then to the state Supreme Court. There, she attracted a great deal of attention for her, let us say, consistent libertarianism. On the one hand, she was a free speech and gun-ownership absolutist who authored a dissent saying that drug addicts should be given medical treatment, rather than prison terms. A couple of her opinions in those areas are close to the view sof a number of liberals. However, the bulk of her jurisprudence has filled liberals-and many moderates, such as National Journal law correspondent Stuart Taylor- with fear and trembling. She has been called a female Clarence Thomas. There are differences. For one thing, she is farther to the right than Thomas. Clarence Thomas went through an Ayn Rand phase, she is still in one. Clarence Thomas has said that his fellow conservatives should be open to compromise and capable of prudence. Compromise and pudence are foreign to Judge Brown's world-view. Unlike Roberts, Scalia, Alito, and (usually) Thomas, she has voiced an nostalgia for the pure laissez -faire of the Lochner era. She has decried New Deal "socialism" and said that the "leviathan state' has sapped American character and virtue. ( I will admit that as far as that last observation goes, I think she may have a point.) When Bush 2 elevated her to the DC Circuit ( usually seen as second only to the Supreme Cour tin importance, it ignited a firestorm of controversy. After two years of wrangling, she was named to the appeals court by eight votes. Since then, she has been a bit more low -key in her rhetoric. On the one hand, she is articulate and a highly skilled judicial technician. On the other, she has shown no desire to abate her libertarian convictions. She does have a considerable sense of humor. If Justice Posner is the bridge between Hayek and Nietzsche, she is the Bridge between P.J. O'Rourke and Ayn Rand. Her best shot the Supreme Court would be in a Ron Paul presidency, which means she has no shot at the Supreme Court whatsoever.
Section 2: The Unlikelies.
The first set of possible candidates might have shot at being nominated to the High Court, in much the same sense that there might be a teapot orbiting the earth in an elliptical orbit. The ones I will now discuss less 'impossible than 'unlikely".
Section One. Lone Star Justice: The Fifth Circuit oldsters.
All three of the judges I will now mention had their shot at the Court, but are now a bit long in the tooth. Romney might imitate Clinton's willingness to nominate slighty older judges of a liberal bent and nominate one of these three, but it is highly unlikely.
1. Roll Tide, Roll.
Patrick Higgenbotham is a very bright fellow who went to third tier schools. First, he graduated from Alabama with honors, back in the days when black students were non-existent.(Interestingly, he attended on a tennis scholarship.) Then, he took his law degree, with distintion, from the same school Despite those modest beginnings, he has crafted an impressive career as an articulate, well read, ( He sometimes quotes the likes of Cormac McCarthy in his opinions.), definitely conservative judge. He is frequently cited by his colleagues, though he has sent few clerks to the Supreme Court. Bush One looked at him for the high court, and liked his brains, but saw no political advantage in naming a white southerner to the nine.
2. The Marine from Notre Dame (and the Barrio)
Emilo Miller Garza, USMC, M.A. J.D. When Clarence Thomas almost wasn't nominated, this man was George H.W. Bush's second choice. Like Thomas, he had a powerful friend in the Senate . Thomas' friend was John Danforth, Garza's friend was Phil Gramm. Garza grew up lower middle class in San Antonio. Depending on who is writing Garza's biography, his father was either two steps away from being a loanshark or a benevolent Bulding and Loan manager who resembled George Bailey's father in Its a Wondeful Life. The older Garza was, however, pretty popular in the community, organizing many sporting event sfor charity. Garza was educated in the Catholic Schools of San Antonio, graduating first in his class from Holy Cross High, a school expressly set up for gifted young men of modest backgrounds. In 1966, he entered Notre Dame University, originally intending to become an engineer. however, he became fascinated by political science,a nd especially by international relations and political theory. He was a favorite pupil of Gerhart Niemeyer, outspoken conservative, Eric Vogelin scholar and cold warrior. Niemeyer's son, Paul, is a respected, if conservative Judge on the Fourth Circuit and a very close friend of Garza. Garza got his BA and MA in political science from Notre Dame, with honors, and acquired fluency in German and Russian. Instead of going on to get his doctorate, he enlisted in the Marines in 1971. He was promptly put in officers candidate school. Instead of goiug to Vietnam, he spent the bulk of his military career commanding Marine contingents on warships. After leaving the service, he changed his career path or a third and last time, entering the University Of Texas Law Schol, where he was a good, if unspectacular student. Going back to San Antonio, he joined a small, but respected law firm, where he gained a reputation as a skilled defense lawyer, mostly for corporate clients, though he did defend at least one (minor) figure in a drug smggling ring. He was also chief cousel for an order of teaching nuns and for the largest Catholic hospital in San Antonio. In 1979. he was elevated to the local bench, where he showed great effiicency in clearing his docket, and garnered occasional criticism for being rather harsh toward defendants. He was then named to federal district court and, finally, in 1990, to the Fifth circuit. While on the Fifth circuit, he has developed a reputaion as a low -key, careful conservative. However, there is at least one issue on which he is not low-key. He is fervently pro-life on Abortion. There are a few issues on which he is less spredictably conservative. One of them, oddly enough, is capital punishment. While generally reluctant to second-guess trial courts, he has also sharply criticized unfair administration of the system in texas, especially in a case involving a bogus "expert witness' used by Texas to persudae juries to send accused criminals to their deaths. Finally, he is writing a book on conscience, and has lectured on the topic to conservative student groups. He has only sent one clerk on to the Supreme Court. She was hired by Thomas. He has the honor of having been insulted by Molly Ivins, who called him "The Clarence Thomas of the Hispanic world, though without known sexual peccadilos." I could comment on the stupidity and crassness of that comment , but I will let it pass. His last real shot on the court was under Bush One, and his chance sof being named by Mitt are slim. Not non-existent, like Brown , George or Easterbrook, just slim. If a conservative Texas Hispanic judge is ever named to The High Court by a Republican, it is much more likely to be the the considerably less ideologically outspoken Edward Prado.
The Dragon Lady.
Chief Judge Edith Hollan Jones. Few people question Judge Edith Jones smarts; nobody questions her frevent coservativism. She graduated, with honors from Cornell, where she was also taught by a very conservative political theorist, The Straussian champion of capital punishment and the censorship of porngraphy, Walter Berns. She then went to The Univeristy of Texas Law School, where she graduated Summa Cum Laude, with the highest grades ever recorded by that institution. After working for James Baker's Houston Law Firm, Davis and Kurth ( She became a full partner in five years.) and serving as a counsel to The Texas Republican party, she was elevated to the Federal bench by Reagan. She is fiercely pro-capital punishment, and an eloquent, if hard -core, conservative on practically all issues. For example, she has earned a national reputation as an expert on bankruptcy laws, which she wants to see considerably tightened. Like Garza, her best shot was under Bush One , where she was one of two finalists to replace Bill Brennan when that liberal stalwart retired. Her biggest champion was Dan Quayle. However, John Sununu championed an obscure Republican judge from New Hampshire- chap named Souter- and Bush One was persuaded to elevate the hermit philosopher of the Granite State to the High Court. Wonder whatever became of him.
Section Two: The Bush Two loyalists.
Two are Hispanics, one is Black, one is a Mormon one is Korean American. All five have impressive resumes; at least four present political liabilities. All are associated with The Bush adminsitration, and for at least three, the association is not good.
Alberto Gonzales. For a time, he seemed to have a very bright future indeed. Like Garza, a child of the barrio, ( Houston, not San Antonio), but considerably poorer. He too went into the Armed Forces ( Air Force.) However, In the case of Gonzalez, he went in straight out of High School, as he could not afford college. His Air Force career was chiefly as a technician working on state side bases. However, his brains and aptitude impressed almost everyone he met, and he ended up going to The Air Force Academy. He had excellent grades there, making the honors list for three years. However, he decied to pursue a civilian career and finsih his education at Rice University in Houston, where he had once worked as a peanut an hotdog vendor during football ganes. He ended up with an honors dgree in political science. He graduated, again with very good grades, from Harvard Law. He joined one of Houston's most powerful law firms, where rapidly developed an excellent record as a criminal and civil lawyer and a reputation for commmunity leadership and advocacy for improving legal services for the poor and for minorites. He was obviously conservative, though of a pragmatic, and- dare we say it- "compassionate", variety. Perhaps even more important for his career prospects, he became a trusted legal advisor to a Texas businessman with a famous last name and considerable politcal ambitions. When that ambitious gentleman became Governor of Texas and a very conservative Democrat named Raul Gonzalez left the court, Alberto Gonzalez was named as his sucessor. At that time, the Texas Supreme Court, long plagued by scandal, was being transformed by its new, young and bright, Chief Justice Tom Phillips. Phillips was definitely conservative, but a gifted administrator and a fair-minded, precedent driven judge. Gonzalez fit right in. He was a careful, pragmatic, usually pro-busines sconservative, whose opinions were calmly written, technically good, and usually avoided hot-button issues. If anything, he was mildly pro-choice on abortion, though that may have been largely driven by a cautious deference to precedent. When his principal poliitcal sponsor became President of the United States ( What was that chaps name again?), he was promptly named as the Counsel tot he President- the first Hispoanic to hold that august office.
After that very able-and very prudish- evangelical gentleman, John Ashcroft, stepped down as Attorney General, President Bush ( I've decided to let the cat out of the bag and Name Gonzalez's boss.) was torn between two papabile. One was a black repoublican who will be described shortly. The other was Gonzalez. Bush prizes loyalty above rubies, and Gonzalez was definitely loyal. So the one-time Rice university peanut vendor entered the office once held by the likes of Charles Bonaparte,(TR) A. Mitchell Palmer, ( Wilson), Harlan Fiske Stone( Coolidge) Bobby Kennedy (JFK, duh.) and John Mitchell.(Nixon) A perusal of the names I have just mentioned-and many more besides- will provide evidence that many attorney generals of the United states have been chosen for their personal loyalty. ( For example, Stone was a friend of Silent Cal starting at Amherst.). It will also provide evidence that more than a few Attorney Generals have had a decidedly checkered record when it comes to civil liberties,, particularly during war-time. Both statement would prove true of Alberto Gonzalez. The first would prove to be a liability with a number on on the right, the second with most on the left. Gonzalez was mistrusted by many the right, who saw him as, of all things, a potential second coming of David Souter. He was perceived as a man more driven by his undisputed loyalty to the Bushes than by an particularly conservative ideology.
On the left, Gonzalez was seen as a Bush Sycphant at best and an ogre at worst. It was not just the fact that he fired Justice Departmnent officil who were unwilling to toe the party line; it was the very nature of that party line. Eager to eward the loyalty of its evangelical base, The Bush administration put considerable emphasis on championing religious liberty and on fighting pornographyand human trafficking. While such stances were commendable, what was considerably less commendable was that other civil liberties issues were de-empahasized and even ignored.
What was not ignored, starting on a certain fateful day in September, 2001, was the war on terror, and,as everyone knows, Alberto Gonzalez and most of his his associates, carried out the war on terror to the limit and beyond. Almost everyone knows the sequel . Alberto Gonzalez now teaches Law at Texas Tech, and at least one Europen court wants to indict him as a war criminal. in fact, it is downright dangerous for the former Attorney General to visit certain European countries, least he be arrested and tried. So it will be at least a decade before he restores his reputation-if then.
The Black Super-Lawyer.
Larry Thompson is the general counsel for Pepsi-Cola. He is also in his mid-sixties, which may be the biggest strike against him. He was educated at a small, but good liberal arts college, Culver-Stockton, and was an hoors graduate of the University of Michigan Law School. He worked for the During the Reagan and Bush 1 adminstrations, where he gained a reputation as a skilled prosecutor of organized crime and white collars criminals as well. He was conservative, and a good friend of Clarence Thomas, but much more low-key than the more famous( or, infamous) Thomas.
During the Clinton years, he worked in the public sector for a wide variety of corporate and other clients, maintaining a high reputation for his legal skill. When The Republcan restoration took place in two thousand, he was named Deputy Attorney General of the united States. Again, he won generally very high marks. When John Ashcroft left the Bush administration, he as passed over for promotion to the top spot in favor of Gonzalez. He then he went to work as fellow of the Brookings Instituion and later, was appointed Chief Counsel for Pepsi Cola. he sits on a number of corporate boards, and is generlly seen as a 'super-lawyer" and behind the scenes power-broker. If Romney is catapulted into the presidency, he will, almost certainly, become Attorney General of The United States.
The Filibuster Victim.
At the beginning of the Bush 2 administration, the future of Miguel Estrada seemed bright indeed. He had migrated from his native Honduras at the age of 17. He taught himself to speak and write English and graduated Magna Cum Laude from Columbia in 1983. and Magna CumLaude from Harvard Law in 1986. He then clerked for Amalya Kearse (a moderate liberal ) on the Third Circuit and Anthony Kennedy, (a moderate conservative.) on the Supreme Court. From 1990 to1992, he was assistant US attorney for the Southern district of New York. He later joined Gibson, Crutcher and Dunn, where he is now a senior partner. He also worked with Ted Olson on Bush v.Gore.
George W. Bush nominated Estrada to the nation's second most pwerful court, The D.C Circuit, on May 9, 2001. The American Bar Association gave him an unanimous "well-qualified" rating. However, Senate Democrats had their doubts. First of all, they voiced concern over his lack o judiciail experince. ( It should be noted that many of the most distinguished members of the Appellate courts, both liberal and conservative, lacked judicial experience when they were nominated.) Secondly, they noted that because he was not an academic, he had no "paper trail", depsite his membership in the Federalist Society. Estrada was approved by the Senate Judiciary Committtee along straight party lines, and Senate Democrats promptly launched a filibuster. This was totally unprecendentd. Both Republicans aand Democrats had delayed Appellate confirmations before, and several Supreme Court nominees had been filibustered; this was the first filibuster of an Appellate nominee who was supported by a majority of the Senate. Seven attempts at cloture were defeated along straight party lines. Estrada's wife , perhaps coincidentally, suffered a miscarriage. ( She later died of an overdose of alcohol and sleeping pills.) Finally, Estrada withdrew, and Bush nominated Thomas Griffith, another able conservative Republican, to the DC Circuit. Griffith, interestingly, was easily confirmed, even though he also had no prior judicial experince and no publishing record. Of course, he was older than Estrada, and he was not Hispanic. A memo from the ofice of Democrat Senator Dick Durbin indicares that many liberal groups were afraid that the young, Conservative Hispanic might well be nominated to the Supreme Court by Bush. They apparently had no such fears about Thomas Griffith.
An epilogue. A distinguished American jurist has called Estrada a lawyer who has "superlative qulifications" for both the Appellagte Court and The Supreme Court. This Jurist has also said Estrada has a "towering intellect", and a "prodigous capacity for hard work. " Finally, this same jurist said "no one I know is a more faithful friend or a more fundamentally decent person". Who said these things? Justice Elena Kagan, who Barack Obama named to the court in 2009.
The Accused War Criminals.
Let us begin with their qualifications. Jay Bybee is a devout Mormon ( which might appeal to Romney.) and honors gradute of BYU. ( BA Summa, JD with Honors.) who is currently a judge on The Ninth Circuit. He was overwhelmingly approved by the Senate to the Ninth Circuit when he was nominated by George W. Bush in 2005. John C. Yoo immigrated to America from Korea as an infant. He graduated from Yale Summacumlaude in American history, and also graduated with highest honors from Harvrd Law School. He clerked for DC Circuit Judge Lawrence Silberman, conservative Republican and former ambassador to Yugoslavia, and for Justice Thomas.
Here is the problem. Like Gonzalez, they would face criminal charges if they ever visited several foreign countries, including Spain. They were both key figures in writing the "torture memos" which the Gonzalez Justice department used to justify "enhanced interogation techniques. Since leaving the Bush justice department, thehy have both had distinguished careers. Yoo has taught law at The university of California at Berkeley's Boalt Hall, where he is frequently the target of bitte rstudent protests. Bybee has compiled an extremely impressive record on the Ninth circui, wriotting a number of unamious decisons on such matters as jury trials, the rights of the accused, and American indiann property claims. Interestingly enough, he has almost always decided in favor of criminal defendants and Indians. He has also publshed ona wide variety of legal topics, including Supreme Court History. Bybees fine judicial and academic record might outweigh the scandals attached to his name, but I doubt it.
In my next installment, I will focus on the more likely candidates.