Comments on: Why Obama Should Pick an Appellate Court Justice to Replace Stevens

By: Conor Shaw

Conor Shaw — Thu, 22 Apr 2010 22:47:02 +0000

I’m going to jump on the Diane Wood bandwagon and guess that she’ll pull through as the next nominee. And it’s not just because I’m drinking the UChicago kool-aid (Certainly not after I missed out and wasn’t among those chosen to be in her first-year Civil Procedure class. Doh!)

At 59, she’s not as young as Roberts, but it’s hard to find qualified candidates who are significantly younger than that. If nominated, she’d be difficult to oppose given that she has a number of esteemed conservative colleagues (among them Judges Posner and Easterbrook) who would support her nomination wholeheartedly. She also has experience in anti-trust and business law, two areas that may be of increased importance in the near future.

Kagan seems like Wood’s most formidable competition, but for many reasons, including those mentioned by Professor Dickinson, she’s less of a safe choice. No record, another “Northeastern liberal,” and little experience in the courtroom – until recently. She would benefit from a legacy of bringing conservatives and liberals together again at Harvard, but the H-word may also be a liability if Obama wants to have a little geographic diversity on the court.

Speaking of which, if identity politics trumps again, Judge Ann Williams (like Wood, also on the 7th circuit) could be surprise pick. She would be the first African-American woman on the court and has some of the same attributes that make Wood a desirable choice, but it’s possible that she’s just on the “short list” to make one of Obama’s safest voting blocks happy.

With the elections coming up in November, this nomination may be Obama’s last chance to appoint a solid liberal to the bench (think Cass Sunstein), but all signs seem to indicate that he’s not looking for that kind of a fight. Perhaps passing financial reform and making some headway on climate change are the issues he considers truly important. Why let a nomination battle get in the way?

By: Polemarchus

Polemarchus — Thu, 22 Apr 2010 17:42:26 +0000

Diane Wood

http://www.nytimes.com/2010/04/22/us/politics/22court.html?hp

She fits MD’s characterization of justice-as-politician nicely: she has a clearly left track record (and I emphasize “clear” – where does Elana Kagan sit on anything?), yet she has a widely respected reputation for being able to bridge political differences with right-leaning justices. She’s a great persuader, in other words. And despite her political leanings, respectable Serious People of All Political Stripes hold her in high regard. I think she’d be a good choice.

By: Dale Steinacker

Dale Steinacker — Mon, 19 Apr 2010 20:59:58 +0000

Matthew,
I agree. Let’s leave Constitutional Law aside, sort of, and focus on Presidential Power. Truman spoke of the Presidency as a constant effort of persuading people to do “what they should do.”
Now, Presidents have vast unilateral authority particularly on issues of National Parks and the environment. Clinton was accused of putting aside land for national parks only in states which had opposed him politically. Bush helped people who supported him by working to open more land for extraction of oil and other resources.
Obama put a hold on some of Bush’s decisions and now claims to be “opening” areas in 2012 that Bush would have opened in 2010. Also, the Chrysler takeover was a case where bondholders were shortchanged at the expense of Obama’s allies and the courts did nothing.
What is the difference between Presidential Power and the power of an autocrat or a monarch? Has the difference already disappeared or are there restraints which exist or need to be strengthened to prevent the President’s becoming an autocrat?

By: Matthew Dickinson

Matthew Dickinson — Mon, 19 Apr 2010 14:57:14 +0000

Dale – The issue, I think, is whether the Court “constantly” defers to elected representatives, or does so only in areas involving so-called “political” issues, or where there is a reasonable amount of latitude in interpreting whether legislation is constitutional or not. By political issues, I mean those issues best resolved through debate by the two elected branches. Of course, that’s a rather broad category. I don’t pretend to be a legal scholar (nor do I even play one in the movies) so I can’t say whether mandates are constitutional or not, nor whether they fall in this area. My read of the legal debate suggests that there is a broad range of opinions on this issue. I just don’t see the court wading into such a legal thicket that has such huge implications for the President’s political fortunes. Whether they should wade in, as you suggest, is perhaps a different question.

But I’m open to opposing viewpoints on this one.

By: Dale Steinacker

Dale Steinacker — Mon, 19 Apr 2010 00:38:51 +0000

I agree that the court reads election returns. I don’t expect any serious court action on health care until after the 2010 elections.
On the other hand, if the court decides to “defer to the decision of Congress and the President and accept that mandates are constitutional” what point is there to a constitution which doesn’t limit the Federal Government in any way?
By the way, Thomas Sowell wrote a blistering column about Justice Steven’s opinion in Kelo on precisely the deference issue. Why have any limits in the Constitution on the power of elected officials if the courts constantly defer to them on whether or not they have exceeded the limits?
See http://jewishworldreview.com/cols/sowell041310.php3