So you’re the President. Not Dubya, not Clinton; it’s you. You da man (or woman), and the White House is your crib.
One day your Oval Office phone rings, and the Attorney General, aghast, tells you that the entire Supreme Court has died (ceiling fell in during a case conference, bomb exploded, plane crashed on the way to the ABA convention, whatever).
You now get to appoint a Chief Justice and eight associate justices. George Washington appointed the entire court. President Jack Ryan did, in one of Tom Clancy’s books. FDR came close, in his twelve-year Presidency.
How would you go about it? Is geographical balance appropriate? (Washington thought so). Should there be some kind of balance in gender? Race or ethnicity? Age? Something else? As to ideology, would you only appoint justices who shared your overall legal philosophy (if the Senate went along), or should you (regardless of your own leanings) appoint a mix of conservative, moderate and liberal justices?
As a left-progressive, I would ask the National Lawyers Guild (http://www.nlg.org/) for a list of nominations. If not all of my first choices got confirmed by the Senate, I too would work my way to the middle from there, but only so far. IOW, I start with a (judicial equivalent of) Ralph Nader and settle for a (jeo) Dennis Kucinich! And Kucinich gets the nod, because Nader makes him look moderate by contrast!
Flaw in that plan: I would have to appoint mere lawyers, not established federal judges. For some strange reason, there seem to be very few left-progressives on the federal bench nowadays.
Richard Posner
Richard Epstein
Akhil Amar
Lisa Heinzerling
Edith Clement
Cass Sunstein
Michael McConnell
Bruce Ackerman
Eugene Volokh
I haven’t addressed gender and ethnic imbalances, which is a negative, and I’m tilting strongly toward academics. But any decision that could garner five votes from that court would have a damn strong consensus behind it.
Hell of an idea!!
Myself, if I had to choose, I’d probably try to balance the court by picking 2 ‘conservative’ and 2 ‘liberal’ judges, with the balance being ‘moderates’…and the CJ being the most experienced strict constructionist I could find. Someone well respected and considered fair without any serious political or quasi-religious hang ups or causes.
I don’t think geographic diversity is that important these days as it was when transportation and communication weren’t as near-instantaneous as they are now. I guess it’s not useless, but it wouldn’t be a major consideration for me.
Let’s see, who would I pick.
Bill Clinton – incisive intellect, catholic interest, and while he’s no stranger to making tough decisions, I think he may have a valuable appreciation of consequences.
Frank Easterbrook – I may be the only Law and Economics liberal on the planet, but of all the Law and Economics guys, Easterbrook is the one who best understands the economic value of non-pecuniary interests. I.e., he gets things right most often.
Charlie Rangel – unparalleled civil rights and women’s rights credentials, takes no shit, former prosecutor, willing to take an unpopular stand.
Hmm. That’s three, all dudes. I’ll have to think on this further.
I’d probably try to get one judge from each federal Circuit and try to cover the political spectrum from one Green on the left to one moderate Republican on the right, with the balance ending up a bit left of center.
Problem is, one minute I will be weighing in on a legal discussion about copyright law as it applies to entertainment, then I will hear another Justice mention a decision I disagree with in a small talk context, and I will abandon the case at hand to disagree with him, no matter the timing.
Oh, and personally, I would not choose a single celebrity. Just look at Cindy Sheehan. I can not think of a single nutty thing she has done, and yet people feel entitled to claim she is a raging paranoid schizophrenic. Thus, I would simply appoint talented, but not well know lawyer who have worked on important civil rights issues. Some of them would be parents, and there would be an atheist or two in there somewhere.
I would choose the nine best candidates that (as far as I could tell) leaned toward my view of the correct method of constitutional interpretation. I’m astonished that anyone would do anything else.
I have to disagree with Gadarene. While all the individuals he (?) mentions would make good Justices, I wouldn’t want a court so weighted toward academia. I would want more people with more experience on the “streets,” for lack of a better word. I’d like to see people with experience in corporate law, criminal law, and politics
According to a recent article in the Atlantic magazine, a major problem with the court is that they collectively have almost no experience in the real world of litigation, and that they issue rulings with no regard as to how they will actually work.
Here’s the full article. Unfortunately, it’s a paysite, though it’s free if you’re a subscriber.
I would ask a leftward, rightward and a moderate group for names. Then I would have my staff gather opinions from those individuals…and then black out any personal information as to race or gender and forward them to me. I would then pick the nine that made the most sense.
Well, because I don’t believe that there is a correct method of constitutional interpretation – and I wholeheartedly recommend that everyone read Daniel Farber and Suzanne Sherry’s book on the topic, Desperately Seeking Certainty – I chose nine brilliant people, clear thinkers and excellent writers, who subscribe to nine different methods of constitutional interpretation. I’m shocked and disappointed that the two of you don’t think that having a “correct method of constitutional interpretation” isn’t by definition making the Supreme Court explicitly political.
And Larry, you have a good point. My response would be that the Supreme Court, far more than any other judicial body in this country, needs to have one foot solidly in academia – or, at least, in the theoretical underpinnings of constitutional jurisprudence. People who are wonderful lawyers don’t necessarily make wonderful judges. The same is true for wonderful academicians, of course, but (I’d argue) to a lesser degree.
