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I thought I would make the first post to get the discussion started. Today, Tom Goldstein posted on SCOTUSBlog that he thinks that politics has receded as the critical factor for the Obama administration in filling the vacancy created by Justice Stevens’ retirement. I disagree. To be sure, President Obama has more room than he did just a few months ago when he was facing the possible collapse of his health care bill. Supreme Court appointments, however, are always about politics, and the political nature of appointments has only accelerated over time. Tom is correct to the extent that he is arguing that President Obama is not directly constrained as Democrats hold a 59-vote majority in the Senate, the body that must confirm any Supreme Court nominee. But I think the constraint for the President is that Congressional Democrats are not ready for another major battle after the health care vote. Republicans are already projected to pick up a number of seats in both the Senate and the House this fall, and a bruising battle over a Supreme Court nominee is just too risky for legislators who are in jeopardy of losing their seats. Further activating the Republican base, which pays attention to judicial nominations, would potentially be harmful to Congressional Democrats this fall.

I may expand on this point later, but President Obama has not been nearly as aggressive as other Presidents with respect to his judicial appointments. During the first nine months of his Presidency, Obama made about 33% as many judicial nominations as his predecessor, George W. Bush. Moreover, the average age of President Obama’s circuit nominees has been 56 years old, nearly six years older than the average age of circuit court nominees over the past 30 years. If history is any guide, President Obama would not be hesitant to nominate someone like Judge Merrick Garland, who is acceptable to Republican Senators and would not create a bitter confirmation battle. Judge Garland also fits with the type of candidates that Obama has nominated for the circuit courts: sitting judges that are slightly older than average. Thus, several weeks ago I would have agreed with Tom that Elena Kagan was the most likely choice, but Judge Merrick Garland may be the safest choice for a President trying to avoid a difficult confirmation battle.

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The Supreme Court Term and the Confirmation Process

By the end of June, the Supreme Court Term might well look like this: the Court will have held unconstitutional Congress' attempt to limit corporate and union electioneering spending. By the same 5-4 majority, the Court might have held unconstitutional Congress' response to the last financial crisis, the Sarbanes-Oxley Act, enacted in the wake of the Enron, WorldCom, and similar corporate scandals of the late 1990s-early 2000s (Full disclosure: I represent seven former Chairmen of the SEC in this case, who are arguing in favor of the constitutionality of the Act). And the Court might have held unconstitutional the criminal conviction of the man who more than anyone else, is the most visible face of those corporate scandals: Jeffrey Skilling, the former President of Enron. Think about that picture: Congress' effort to legislate in the wake of the last corporate scandal, unconstitutional. The conviction of Enron's head, unconstitutional. Congress' effort to rein in corporate participation in elections, unconstitutional. All this as the country roils with the aftermath of the worst financial crisis since the Great Depression, including angry debates about whether entities like Goldman Sachs committed fraud or engaged in unethical behavior in ways that contributed to the financial meltdown.

At the start of the Court's Term, I suggested that how the Court implicitly responded to the financial crisis would be the defining issue for the Court this year. And if the picture I've sketched is indeed how the Court's Term concludes, that issue is going to come home to the Court with a vengeance. The Court will be swept into a maelstrom of controversy centered on perhaps the largest domestic issue of our times: how much power does or should government have to regulate corporate behavior. To some extent, this reaction to the Court will quickly move beyond what's actually involved in some of these cases. If the Court overturns Skilling's conviction, for example, the Court might do so as part of a series of cases that hold the "honest services" statute unconstitutionally vague; and that statute has been used more to prosecute government officials than corporate executives. But coverage of the Court, from both academics and the media, has become as polarized and unnuanced as everything else in our hyperpolarized political culture. The fury Congress is currently directing to Goldman Sachs will turn to the Court.

There will be a ready stage on which to present this drama: the confirmation process. Not only will the focus shift from the cultural issues that have dominated hearings in recent decades to economic ones, but Congress will have a much more direct stake in the issues. Unlike the cultural issues, where the Court is typically confronting state laws, here the Court would be holding unconstitutional national statutes involving Congress' regulation of the national economy. Will the anticipation of this drama, already foreshadowed in the reaction to the Court's Citizens United decision, influence who gets nominated to the Court? I have thoughts on that, for another post, but I wonder what others might think about the effect on the Court and the confirmation process of this looming drama.

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Rick’s thoughts, as always, are provocative and interesting. He is correct that this could be an important Term with cases like PCAOB, Citizens United, and Skilling sure to create controversy within the legal community. And next year’s Term is stacking up to have a few blockbuster cases as well. But my question is whether the American public cares about the Court’s responses to the financial crisis, particularly because telling the story linking PCAOB, Citizens United, and Skilling to the meltdown is so complicated? Do the interest groups that so affect the process today really care about the outcome of these cases? Perhaps Citizens United, but the others may just be fodder for law professors and Court watchers.

Last year, for example, I was astonished when the Senate Judiciary Committee did not question Justice Sotomayor about her opinion in In Re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003), in which she essentially agreed that an appeal had become moot, but then went on to write page upon page of dicta about whether attorney depositions should be permitted under the Federal Rules of Civil Procedure. In her opinion, she went on to arguably articulate new law in the circuit, and her justification for reaching the (former) merits of the case was that “a non-binding discussion of the merits [would] hopefully serve the useful purpose of cautioning about the limits of our prior rulings on a frequently litigated issue and perhaps avoid some needless appeals.” I found this to be highly objectionable because the role of a judge is to decide real controversies, not to issue advisory opinions.

But I shouldn’t have been surprised that the case did not get much attention. The types of issues that seem to aggravate law professors simply do not resonate with the American public. To the contrary, a brief look at the last twenty-five years of Supreme Court appointments shows that the dominant issue by far tends to be abortion, followed by other social issues such as gay marriage and affirmative action. One might persuasively argue that the issue of executive power was important to the nominations of Chief Justice Roberts and Justice Alito, but neither the Democratic nor the Republican base was stirred by how the Court would decide questions of executive power at the time those nominations were announced. Similarly, because it is hard to tell a story about separation of powers (i.e., PCAOB) or even the right to free speech (i.e., Citizens United), I just cannot imagine that these cases will set the tone for the debate in the Senate Judiciary Committee or influence interest groups. None of this is to say that the financial crisis is unimportant (it is very important) or has not captured public attention (it surely has), but will it affect the Court and the confirmation? I doubt it.

Nonetheless, I think Rick is correct that President Obama may look for a judicial nominee that will be supportive of his views on federal power. As the federal government grows and seeks to regulate more conduct (including that of corporations), the President will surely want to have a Court that is sympathetic to his reform measures, much like President Roosevelt cared deeply about the impact that the Court was having on his New Deal programs. Of course, I doubt President Obama will ever threaten to pack the Court, but this is an important nomination for him in terms of the battle over federalism and the scope of federal power. Whether the records of any of the leading candidates such as Merrick Garland, Diane Wood, or Elena Kagan give him much of a window into their views on these issues is another matter entirely.

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Ever since President Obama's "empathy standard" came under fire during the Sotomayor confirmation hearings, he has been groping for another way to explain his approach to selecting judges. He took another stab at it last week when he criticized the Court for "conservative judicial activism." At one level, this pushback is simply practical politics - the more he can turn the discussion into criticism of the current Court the less time will be spent scrutinizing his own nominee. But more important were the president's musings on jurisprudence which I think reveal a fundamental misunderstanding of the Constitution and the role of the Supreme Court.

The president defined a judicial activist as "somebody who ignore[s] the will of Congress, ignore[s] democratic processes, and trie[s] to impose judicial solutions on problems instead of letting the process work itself through politically." But this definition of activism, while popular, is singularly unhelpful. Everyone agrees that there are some laws that should be struck down and others that should be upheld - that's been clear since Marbury v. Madison. By contrast, when conservatives complain about judicial activism they are targeting judicial decision-making that is based on a judge's preferred policy outcome (e.g. "empathy") rather than the text, structure, and history of both the law at issue and the Constitution.

The president was troubled by the prospect of the Court "sometimes [having] more power than duly-elected representatives." But this concern betrays the President's low opinion of judicial review and of the Court as an institution. Query whether he would be so critical of the court's power if the Republicans were still in office.

Perhaps the best rejoinder to the President's critiques can be found in Marbury v. Madison itself: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?"

In response to Rick's comments, because the public, by a wide margin, does not support the expansive government response to the current financial crisis, I believe this fact would color public reaction to any Sarbanes-Oxley ruling from the court. Instead of seeing the bailouts and buyouts as necessary regulation to fix the system, they view them as invasions into the market and part of a government takeover of American life. Indeed, a poll taken last week by the Judicial Crisis Network (of which I am chief counsel) indicated that 80% of respondents would be more supportive of a justice who found the financial bailouts unconstitutional while 66% percent preferred a justice who would find the health care mandate unconstitutional. This is not to argue the merits of those constitutional questions, but simply to point out that the public is now quite skeptical about government interventions into the market, so much so that I think the torches and pitchforks will remain safely in the shed even if some Enron-related legislation is struck down.

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Presidential selection of a nominee is like the slowest-paced reality TV show ever: for a month, a national audience knows the likely contestants but sees almost nothing about the decisionmaker’s thought process.  I admire Ed Whelan’s long slog of researching each possible nominee precisely because his task is certain to prove largely unrewarding: if President Obama picks Merrick Garland, what on earth will Ed do with his newfound encyclopedic knowledge of obscure Ninth Circuit Judge Sidney Thomas, and of Elena Kagan’s dry academic musings about the proper standard of review for administrative agency regulations?  I say this having read almost all of Kagan’s scholarship, so if she isn’t the nominee, I’ll be quite ticked off that her inclusion on the short list wasted so much of my time.

So my own thoughts on the “who will be the 112th Justice” sweepstakes are more general, not specific to any one nominee, and I’ve published those views more fully in a just-released American Constitution Society Issue Brief (http://www.acslaw.org/node/16026) about how the Court’s recent jurisprudence betrays a broad-based hostility to civil litigation.  None of the Justices other than Ginsburg had any meaningful degree of experience in plaintiff-side, issue-oriented civil litigation; all were primarily defense-side civil litigators, criminal prosecutors, or non-litigators entirely (academics, policymakers, etc.).  Given that homogeneity of background, it’s unsurprising that even most of the notional liberals on the Court, such as Justices Stevens, Breyer, and Souter, joined major decisions reversing punitive damages awards (BMW v. Gore (1996) and ensuing cases), and the latter two (Breyer and Souter) also joined a recent landmark decision expanding pre-discovery dismissals of civil suits (Bell Atlantic v. Twombly (2007)).  Those decisions stress policy considerations like the threat of discovery cost and abusive lawsuits, never similarly stressing how civil lawsuits can hold wrongdoers accountable and can spur broad-based compliance with the values underlying important statutes.

In short, this is a Court that has wound up anti-plaintiff because it consists predominantly of litigators who spent their careers fighting plaintiffs.  So I think another former plaintiff’s lawyer would add needed balance to this Court’s perspective on civil litigation.  I think conservatives would argue similarly for more balance if a Court consisting of numerous former public defenders, but only one prosecutor, had spent years issuing landmark rulings in favor of criminal defendants.  But I’m a former plaintiff’s lawyer who still does some plaintiff’s litigation work, so maybe I’m just Cliff Clavin the overly enthusiastic mailman singing an ode to the postal service here.