Conservative lawyers Wendy Long and Stephen Presser debate the topic “Who Could Win Every senator’s Vote?” at Legal Affairs Debate Club. They’re convinced, as I am, that no judge who’s even remotely conservative could accomplish that feat.
Long argues,
Before President Reagan’s nomination of Judge Bork in 1987, the generally accepted criteria for Senate confirmation were legal and judicial qualifications and integrity. “Judicial philosophy” was left to the President’s discretion, as the Framers of the Constitution intended. The President, as the only elected representative of all Americans, is the one who should make that choice. It’s what the Constitution empowers him, and the people elect him, to do.
But the Democrats changed the ground rules for nominations with Judge Bork. The Left’s continued failure to persuade the American people of the merits of their ideology, and their corresponding losses at the ballot box, has resulted in the Left being even more dependent on a compliant judiciary than it was 18 years ago. So liberal pressure groups, and the Senate Democrats they control, will oppose any nominee who shares the President’s judicial philosophy.
Certainly, post-Bork, the Republicans have done much the same thing when they’ve controlled the Senate and had a Democratic president, i.e., during the latter years of the Clinton Administration.
Presser expands on this analysis, adding,
What’s happened is that the “legal realists,” working in the shadow of Oliver Wendell Holmes, Jr. have finally become the most influential judicial philosophers, and, as a result all academics, most lawyers, and certainly the leading Democratic Senators now all believe that law is just politics operating at a different level, judges have the freedom to implement the policies they please, and thus it’s crucial to pick judges who will implement the rulings one prefers—for the Democrats at this point rulings that favor affirmative action, abortion, and the removal of religion from the public square. The Republicans find themselves in the interesting position of being able to promote the policies they favor—for example a color-blind constitution, allowing the states to regulate abortion, and undergirding law with religion—by pushing for the appointment of judges who will more narrowly construe the constitution according to its original understanding (the traditional perspective argued in the Federalist and other works of the framers). Thus, for the Republicans, they can successfully argue that the favor judges who don’t make law, and still implement the policies they believe are appropriate.
Quite right.
About a month ago, liberal lawyers Arkadi Gerney and Carl Tobias took a stab at the same question and came up with some names. To do so, however, they had to essentially skirt the first of the requirements that they be “approved by conservatives, lauded by moderates, and acceptable to liberals.”
A good place to start is with two judges President Bush nominated to the Circuit Courts in his first term: Ed Prado (5th Circuit) and Barrington Parker Jr (2nd Circuit). Both are respected moderates.
There’s also Judge David Ebel, a Reagan appointee to the Tenth Circuit and a former law clerk to Supreme Court Justice Bryon White whose jurisprudence resembles that of his mentor.
How about Judge Ann Williams of the Seventh Circuit? Nominated to the District Court by the first President Bush and elevated by President Clinton, Judge Williams is a moderate who would be the first African-American woman on the Supreme Court.
So, it would be possible to find a David Souter-type judge who had been appointed by a Republican but then subsequently disappointing to Republicans.
Clearly, the days when an Antonin Scalia could get 98 votes (with none opposing) are gone.
