The political calculus: Who WILL be the Supreme Court nominee?

Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.

But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.

I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.

Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”

The political calculus: Who SHOULD be the Supreme Court nominee?

Second in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In an earlier post, I attempted to flesh out the political landscape surrounding any potential Supreme Court nomination. With President Trump announcing his plan to name a nominee at the end of this week, I now turn to whom he should nominate from a strategic standpoint.

I note at the outset that this is a question of politics, not whether the nominee is necessarily the best fit for the Court. While all the likely nominees are well-qualified on paper, the President’s calculus is not (nor has it ever been) about the Court’s best interests. It is about making political hay. And that is the lens through which I approach the question.

I also leave aside the question of whether the President should decline to send a nomination until after the election. That is, of course, the overarching partisan game, which I explored previously. I assume here that the President will make a nomination within the timeline he has provided, that Senator Mitch McConnell will do everything he can to bring that nomination to a vote before November, and that Senate Democrats will do everything in their power to avoid that vote.

With that in mind, the most conventionally strategic nominee is Sixth Circuit judge Joan Larsen. As I have detailed elsewhere, Judge Larsen is a highly intelligent, thoughtful, and well-qualified judge from Michigan, a political swing state which will play a big role in the upcoming Presidential election. Beyond her qualifications, her nomination poses practical problems for Democrats, who do not want to be seen as opposing a female nominee — especially one who sailed through the Senate just three years ago when she was nominated to the U.S. Court of Appeals. Larsen is also popular among voters in her home state, where she was resoundingly reelected to the state supreme court in 2016.

By nominating Judge Larsen, the President would score a political victory no matter what happens during the confirmation process. If the Senate confirms her, Trump can claim victory, charge up his base, and score valuable political points among swing voters in Michigan. If Senate Democrats manage to forestall a vote, Trump can turn that delay into a high-profile campaign issue, deflecting attention from the Biden campaign’s efforts to focus the election on COVID and Trump’s personal behavior.

Judge Larsen is reportedly on the five-person short list under consideration by the President, so her nomination is very possible. And while the qualities of the nominee are secondary to scoring political points — at least to this President — her confirmation would be a positive for the country and the Court. There is little doubt in my mind that she would make an excellent, thoughtful, respected Supreme Court Justice.*

So who will be the Supreme Court nominee? I offer some thoughts in the next post.

* CNN apparently agrees. In a photo caption yesterday, they already referred to Judge Larsen as Justice Larsen.

Another Senator joins the federal judicial nomination Hall of Shame

Senator Josh Hawley (R-MO) said in an interview that week that “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.” He added, “By explicitly acknowledged, I mean on the record and before they were nominated.” Hawley championed his position as a way of correcting “an unbridled act of judicial imperialism,” the point “at which the modern Supreme Court felt it no longer had to follow the Constitution.”

Hawley is of course entitled to his views on the abortion debate, but his explicit refusal to vote for anyone who does not pass his narrow litmus test represents a direct assault on the Third Branch of government. The percentage of the Supreme Court’s cases concerning abortion are miniscule compared to the wide range of other matters it hears — matters that evidently are of no moment to Senator Hawley. Whether he is fully sincere in his pledge, or just making a political play, his ex ante refusal to even consider qualified nominees for the Court is a wholesale deriliction of his duty as a United States Senator.

Sadly, Hawley is not alone. This blog has taken to task Senator Kamala Harris (D-CA) for her equally repugnant vow not to vote for any of the President’s nominees, and Senator Mazie Hirono (D-HI) for her inappropriate questioning of judicial nominees.

Harris in particular has ambitions for a national political role. But such open hostility to the judiciary, and the readiness to treat a co-equal branch of government as a political plaything, should disqualify Hawley, Harris, and Hirono from any further national office.

A reverse judicial cascade!

I have written before about judicial nomination cascades: situations in which a sitting judge is appointed to another court, leaving another vacancy on the judge’s original court. Usually, cascades move in a single direction: trial judges are appointed to appellate courts, or intermediate appellate judges to courts of last resort.

But this week, Massachusetts initiated a rare reverse judicial cascade when Justice Edward McDonough, Jr., who is currently on the Massachusetts Appeals Court, was nominated for a seat on the Massachusetts Superior Court, which is the state’s general jurisdiction trial court. Judge McDonough previously served on the Superior Court from 2013 to 2017.

Judge McDonough’s long career as a trial lawyer suggests a high level of comfort with the trial bench, and it is inspiring to see judges who prefer the hurly-burly of the trial courts over the more sanitized settings of the appeals court. Assuming the appointment is successful, it will be interesting to see who Governor Charlie Baker nominates for the vacancy created on the Appeals Court.

 

Kansas senate rejects state appellate nominee on flimsy grounds

Kansas’s senate has rejected Governor Laura Kelly’s nominee for an opening on the state court of appeals. Carl Folsom, a longtime public defender, experienced appellate advocate, and adjunct professor at the University of Kansas School of Law, was turned down on a close vote, on the grounds that he lacks civil litigation experience.

Give me a break. Folsom is well-respected and highly experienced in both the criminal and appellate arenas. He is familiar with the very court for which he was nominated, having argued many cases before that court over the years. His lack of direct civil experience is a non sequitur — he certainly appears capable of filling that knowledge gap. Unlike a trial court, where a judge must make snap decisions regarding procedure and evidence, and where prior experience is absolutely essential, an appellate judge has a bit more time to educate himself and ruminate on the issues.

This is plainly a political move, brought on by a conservative senate at war with a Democratic governor. GOP Senators were likely disturbed by the fact that Folsom had donated money to Kelly’s gubernatorial campaign, and had advocated for some traditionally liberal issues. But so what? Folsom is a private citizen and is entitled to support his favored candidates and causes. There is nothing I have seen to suggest that he would not perform his judicial duties fairly and honorably.

Courts suffer when the other branches of the government play politics with judicial nominations. The people of Kansas deserve better than this transparently political ploy.

Judicial qualifications and the modern political calculus

As Jordy Singer points out in Experiential diversity on the Supreme Court is a pipe dream — at least for now, his response to my recent post, “[i]n states in with nominating commissions, conscientious governors, and reasonable judicial turnover,” the kind of careful judicial selection practiced in Massachusetts and Colorado “is possible. But it doesn’t work that way in most states, and certainly not at the federal level.”

I don’t disagree with this assessment. One difference, though, is that, while it doesn’t work in most states as it does in Massachusetts or Colorado due to the state’s constitutional or statutory design, the process of judicial selection at the federal level—at least, at the level of the Supreme Court—is almost purely a matter of choice. Indeed, it is most often a matter of political choice. And while, realistically, the qualifications of potential Supreme Court justices may not be changing any time soon, we should not give up on the normative arguments for such change. This is not to suggest that the politics will eventually become less important in the selection of Supreme Court justices, but that, within the realm of political choice, Presidents and Senate majorities might one day think beyond the limited qualifications that today’s nominees uniformly possess—qualifications essentially defined by pedigree.

Singer notes the incentives for the President “to nominate a sitting judge with sterling credentials,” which deters the opposition from “play[ing] games with the confirmation of such a highly qualified candidate.” His cites as an example Harriet Miers, President George W. Bush’s original choice to replace retiring associate justice Sandra Day O’Connor in 2005. Miers was White House Counsel; her prior experience included many years as a corporate lawyer in a large firm, and she served as the head of both the Dallas Bar Association and the State Bar of Texas, as well as chair of the Texas Lottery Commission and as an elected member of the Dallas City Council—a record of accomplishment and service of which any lawyer would rightly be proud, and a record of experience that might reasonably be thought to inform many issues that might come before the U.S. Supreme Court in areas such as municipal law, the practice of law, civil procedure, and the regulation of lawyers.

On the other hand, Miers never served as a judge in any state or federal court, or taught as a law school professor, or litigated constitutional cases before any court, much less the U.S. Supreme Court. Oh, and she earned her law degree at Southern Methodist University. But the absence of typically elite credentials did not fuel Democratic opposition to her nomination; rather, that opposition came from within, as pressure from Republicans within and without the Senate ultimately resulted in the withdrawal of her candidacy. At least one conservative commentator put a fine point on her nomination: “The Supreme Court is an elite institution,” Charles Krauthammer wrote. “It is not one of the ‘popular’ branches of government.”

Interestingly, what was known at the time of Miers’s views on many of the issues of most concern to a Republican President suggests she would have consistently voted with majorities to curtail the right to choose, embrace the right to bear arms, and respect state sovereignty. Indeed, it is far from clear how many cases would have turned out very differently had she, and not O’Connor’s eventual successor, Samuel Alito, made it to the Court.

The elitism that contributed to the downfall of the Miers nomination was not the result of any constitutional or statutory rule. It simply reflected a modern political calculation, one that has hardened into an expectation. Any President—or Senate Judiciary Committee—could insist that it be changed. And change may come, should political majorities coalesce around the belief that the lives and experiences of Supreme Court justices should not be so distant from those of most American lawyers—or, indeed, most Americans—as to cast a shadow on the legitimacy of judicial decision-making that affects every one of us.

Experiential diversity on the Supreme Court is a pipe dream — at least for now

Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.

It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”

“Myths and Realities” about Trump’s judicial appointments

Many politicians, advocacy groups, and journalists have written about President Trump’s federal judicial appointments over his first three years, with the dominant narrative being that he has transformed the judiciary by appointing more judges, with more far-right leaning ideologies, than any President in history.

Russell Wheeler looks at the data underlying these assertions, and finds the story to be much more nuanced. As with everything Russell writes, the post is worth an immediate and careful read.

California’s federal judicial vacancies come to the forefront

With certain federal district courts operating with a profound number of judicial vacancies, court leaders are increasingly going public with the need to fully populate their benches. The most recent salvo has come from Chief Judge Virginia Phillips of the Central District of California, who wrote a letter to Senators Lindsey Graham, Dianne Feinstein, and Kamala Harris, urging them to find ways to fill the district’s vacancies.

The Central District of California, encompassing Los Angeles and environs, is authorized by federal law to have 28 active district judges. The Judicial Conference of the United States recently concluded that in fact, the district needs 38 full-time active judges to meet its workload. But the district is currently operating with only half that number (and nine formal vacancies). The last new judge was confirmed back in 2014.

The Central District has one of the heaviest workloads in the country, as measured by weighted caseload filings. Will California’s Democratic Senators and the Senate Judiciary Committee’s Republican leadership do the right thing and fill those vacancies? As we enter another election year, it’s hard to be optimistic.

Surprise me, Senators. Do the right thing.

Party politics and judicial nominations in Michigan

The Detroit News has a fascinating and distressing story about how partisan politics are influencing judicial nominations in three different Michigan courts, covering both the federal and state levels of the judiciary.

Briefly, the state has two federal district court vacancies, one in the Western District of Michigan and one in the Eastern District. The vacancies have been difficult to fill because the Senate’s “blue slip” process essentially allows the state’s two Democratic senators to block the confirmations of any Trump nominees that they do not like. In light of this reality, state Republicans and Democrats worked out a compromise: the seat in the Eastern District would be filled by current Magistrate Judge Stephanie Davis, and the seat on in the Western District would be filled by a nominee supported by the Republican establishment. The plan would have made Davis the first African-American woman nominated to the federal bench by President Trump.

The pact fell apart, however, after Trump’s Western District nominee, Michael Bogren, lost the confidence of Senate Republicans. State Republicans scrambled to find a new nominee, and seemed to have landed on state appeals court judge Brock Swartzel. In the meantime, the Davis nomination was frozen in its tracks.

Then, out of nowhere, Michigan Supreme Court Justice Brian Zahra offered himself up as a nominee for the Western District vacancy. Zahra is a Republican (judges run for the bench with party affiliations in Michigan), and pledged to resign from the state supreme court if Trump nominated him and the state’s Senators agreed not to oppose his nomination. The move would allow a Democrat to be appointed to the state supreme court in his place, tipping the partisan balance of that court toward the Dems.

The article calls the proposal “a neat package” which, among other things, would allow Zahra to collect a federal salary as well as a state pension. But the partisan brazenness of the proposal is appalling, at least to this blogger. How could Zahra even pretend to be impartial if he was placed in the federal bench? And what role does he see for party affiliation on the trial bench, typically the least politicized aspect of the judiciary?

It is an increasingly popular take among partisans on both sides to criticize the judiciary as politicized and biased. Those concerns start with the judicial selection process, in which the very same partisans exert their dismal control.