Doc Searls recently suggested that it would be helpful (or at least interesting) for lawyer bloggers to discuss the current Supreme Court vacancy and potential appointment candidates. I thought we should jump into the fray before the Mainstream Media turns the analysis of the next Supreme Court appointment over to Tom, Cruise, Barbra Streisand and other celebrity thought leaders.
First of all, we all need to appreciate how truly difficult it is for a President to make this kind of decision. If I were President, I'd be agonizing over which of my colleagues Denise, Ernie, Marty and Tom to appoint first.
However, it's not my decision to make. So, let's consider my analysis.
1. The Current Model for Selecting a Supreme Court Justice. A President searches far and wide to find a candidate who seems to match the ideology of the party in power, but who has virtually no paper trail. Many trial balloons are floated, but the eventual appointee is probably not well-known. After the nomination, a confirmation process ensues that takes the term "politics of personal destruction" to a new level. To the extent the candidate is not ideologically polarized going into the process, he or she probably is by the end of the process. After the appointee is confirmed, the political parties gear up to make the next confirmation process even more destructive.
2. The "Why Wouldn't This Approach be a Little More Reasonable?" Process. I may be a Pollyanna, but I struggle with the idea that process #1 is good for anyone and wonder if there may be a better way. Here's my modest proposal. We start to look at a Supreme Court nomination in most cases as a promotion from the Federal Courts of Appeals. At any given time, there are a number of these judges who are highly regarded for their skills, aptitude, wisdom and temperament. Simply appoint one of them. If the Republicans are in power, they get to pick one of the judges who is right of center and, if the Democrats are in power, they get to pick one of the judges is left of center. The confirmation process is then friendly and respectful and we do not expect much uproar unless an appointee has truly unique issues. As a result, we avoid a process that undercuts the authority of and respect for the Supreme Court.
In the current case, for example, here's what might happen. Justice O'Connor has resigned. To illustrate my approach with an example, I would personally find Judge Richard Posner as a perfectly reasonable choice (and he's a blogger too!). He's a Federal appellate judge, experienced, widely respected and, based on my one observation of seeing him speak, seems well-suited to be a Supreme Court judge. The Republicans are in power and, regardless of my own politics, I think it is their right to pick a judge perceived as right of center. We then have a friendly and respectful process that brings out the best aspects of Judge Posner and he quickly gets confirmed.
Now, the current vacancy raises the diversity issue and I'm quite sensitive about that issue. Any reluctance I might have about a Posner appointment in my example relates to the diversity question. However, I am OK with replacing a female justice in this case with a white male justice because Posner is not a young man and other vacancies may occur in the near term allowing the diversity issues to be addressed in the near term.
Obviously I've over-simplified the issues and examples to start the discussion and to move the focus on what might become a more civil and civilized process.
Now, believe or not, I've gotten a few questions about my own prospects for being named to this Supreme Court vacancy. I think that we all can agree that this blog post (especially what follows) should put an abrupt end to whatever slim chances I might have had. Nonetheless, let me kick in with one of those "top ten" lists that pass for political analysis these days and give you the ten reasons Dennis Kennedy won't be appointed to the Supreme Court anytime in the foreseeable future.
10. There's already a Justice Kennedy. There'd be way too much confusion.
9. There's that now-legendary Metallica blog post I wrote.
8. I'd want to do some "All Request Tuesdays" for the Supreme Court to give quick answers to burning legal questions.
7. I can't even think of one argument for not televising arguments before the Court.
6. There is such an opening to be known historically as the "Justice with a sense of humor" that I'd probably try to hard to earn the title.
5. You can't use emoticons to indicate when you are being ironic in Supreme Court opinions. I'd be worried that an ironic comment would be misinterpreted as the law of the land.
4. My motto would be: "Decide more cases. Write shorter opinions."
3. It looks like the Supreme Court spends most of its time deciding cases in areas of law that I have spent my whole career trying to avoid.
2. I wouldn't want to take a step backward in the technology I use at work.
1. There are many other legal bloggers who deserve much more than I do the honor of being the first blogger named to the Supreme Court. It'd be nice if one of them were considered for an opening in the Court one of these days.