July 14, 2005

"A philosophical powerhouse."

That's who David Brooks wants George Bush to put on the Supreme Court:
[P]ick someone capable of writing the sort of bold and meaty opinions that will shift the frame of debate and shake up law students for generations.
Out of pure self-interest, I'd love that. Teaching constitutional law would be a lot more fun if the cases I make my students read and discuss were pithily written and brimming with brilliant ideas. (Pity the poor conlaw professor, forced to assign the landmark, authoritative cases, whether they are written by fuzzy-headed hacks or a committee of recently graduated law journal editors!)

Brooks promotes Michael McConnell as the kind of person Bush should pick, and ends this way:
Yet presidents often make their Supreme Court picks on the most trivial bases: because so-and-so is a loyalist or a friend, because so-and-so has some politically convenient trait or ties to some temporarily attractive constituency. By thinking too politically, presidents end up reducing their own influence on history.

Mr. President, don't repeat the mistakes of the past. Ideas drive history, so you want to pick the person with the biggest brain.
There are two different ideas here -- at least -- and I want to wedge them apart. Presidents should not use trivial, political grounds to select the person who will interpret the law for us all for a generation. That we ought to see as an outrage -- a shocking abuse of power. But "the person with the biggest brain"? I know a lot of big-brained people in law. I'm not sure which one has the biggest brain. Maybe we could sit them in a room and grill them with a series of tests. But there's a damned good chance the person with the biggest brain would be a disaster on the Court. Many of the smartest people lack judgment and character. They may lack feeling for the weaknesses of others and insight into their own weaknesses. And they may arrogantly dismiss what others have to say. The new Justice has to function in a group of nine, after all.

That said, I'd love a super-smart new Justice. But don't just "pick a genius" -- as Brooks says. Pick a real person -- a full human being with a deep understanding of life. (This request might be more likely to bring you to McConnell.)

And could you pick an excellent writer too while you're at it?

27 comments:

Dave Schuler said...

I think I'd prefer the credential “Plays well with others” over either genius or writing ability. This would be a really good time for someone who's able to foster political consensus within the Court. Perhaps someone with practical political experience might be a better pick.

ziemer said...

if it was a philosophical powerhouse with the biggest brain who would really shake things up on the court, that would make richard epstein the best pick imaginable.

but he's rather odd.

EMC said...

What about Posner? Is he too much of a maverick?

Freeman Hunt said...

This would be a really good time for someone who's able to foster political consensus within the Court. Perhaps someone with practical political experience might be a better pick.

I could not disagree with this more.

Rantburger said...

"Many of the smartest people lack judgment and character. They may lack feeling for the weaknesses of others and insight into their own weaknesses. And they may arrogantly dismiss what others have to say."

After 30 years of practicing law, I especially love to see this nail smacked squarely on its head. Many of the worst human beings I have met have been been the most "intelligent." Brooks sounds like a member of the "New Elite" when he elevates raw brain power over character and judgment.

Gerry said...

"Presidents should not use trivial, political grounds to select the person who will interpret the law for us all for a generation. That we ought to see as an outrage -- a shocking abuse of power."

I concur in part and dissent in part.

Presidents should not use solely trivial, political grounds to select nominees.

However, not all political considerations are trivial. Confirmability is, sadly, part of the whole affair and has been since the Democrats decided to make it so.

But that caveat aside, even if confirmability was not a concern, there is a degree to which more trivial, political concerns strike me as appropriate. If the selection process garners a list of a few potential nominees, where none stands out from the others by a meaningful amount (and I think this should be the norm rather than the exception; I think it is rare when in all the land there is exactly one Justice who stands head and shoulders above the rest), then I think that it is proper for political considerations to be the determining factor, or at least not an egregious abuse of power.

Matt said...

Posner is viewed as too old and too unpredictable, especially on abortion, for him to be a likely Bush nominee, though I think he's probably the best person out there on either side of the political divide from a pure qualifications/intelligence basis.

Despite my (very substantial) reservations about some of the things he's said about church/state in particular, I think McConnell would be a solid choice who would easily get confirmed.

Ann Althouse said...

Matt: To choose McConnell is to make a very distinctive decision about the future path of Establishment Clause law.

Bruce Hayden said...

Personally, I would prefer another Thomas to almost anything else. Essentially a right wing bomb thrower who is more ideological than articulate or "plays well with others".

What is a bit scary to me is that Scalia could get so lost in Kelo - putting bad precedence above what is really right and wrong (at least in my view - obviously).

Of course, you could point out that this is precisely what those of us on the right have been complaining about for years - that too many liberal judges rule from the heart instead of from precedence and constitutional history.

ziemer said...

posner would be a wonderful choice, but confirmation would be dicey.

there is no other judge in the country who has written so many things that the hypersensitive would find objectionable.

and unfortunately, in this country, the hypersensitive exercise veto power over the rest of us.

Adam said...

Posner's dissent in the 7th Circuit "partial birth" abortion case, by itself, would make him even less palatable than Gonzales to results-oriented conservatives. Plus which, he's 62.

How about Alex Kozinski? Talk about a great personal narrative, plus sheer judicial brilliance. But many conservatives don't seem to want a principled thinker; they want particular judicial results (abortion, commerce clause, etc.)

Gerry said...

Adam,

I think that would be a valid criticism if Kozinski was the only "principled thinker".

However, I do not believe that to be the case.

In fact, I tend to think that those who want a particular principled thinker while saying all others getting support are merely wanted for particular outcomes risk coming across as wanting a particular outcome that they believe their principled thinker might bring as opposed to others.

As for me, personally, I would be thrilled with Kozinski, or any number of outstanding candidates.

Crank said...

I'm a huge McConnell booster . . . Posner and Kozinski have principles, but those principles aren't necessarily strict fidelity to the constitution as written.

Another guy who may deserve consideration on these grounds - he's tremendously smart and entertaining, and is younger and more traditionally conservative than Posner - is Frank Easterbrook.

Adam said...

Gerry, I'd be happy with Posner or Easterbrook as well, but I'm willing to confess that I am a liberal who's looking for the best possible judicial results here, and I believe that will come from one of these three rather than a more doctrinaire nominee like Owen or Jones, say.

I'm a cynic and a legal realist, so I have deep skepticism for anyone who claims that all they're looking at is "philosophy" without any regard to the predicted results of said nominee's jurisprudence on certain issues, and I believe the Senate is entitled to use the same scrutiny in determining whether to confirm as the President is employing in determining who to nominate.

(As for McConnell, I still don't believe that four two-page blue book responses was a proper way to test students' Con Law I understanding in fall 1995, so I'm biased.)

Matt said...

I agree that McConnell (especially given the seat that's being filled) and church/state are dicey (and, in fact, I strongly disagree with his views), but he's (by all accounts) a principled guy who believes in at least some degree of respect for and wrestling with precedent that he disagrees with rather than being willing to throw it out the window, which is a sharp contrast to what some of the potential nominees seem to do, elevating results and "principles" above all else. To me, at least, the former approach, which I'd describe as (small "c") conservative, is preferable.

Gerry said...

Adam,

"but I'm willing to confess that I am a liberal who's looking for the best possible judicial results here"

Which is all fair and good, but perhaps with this being the case, you might not have wanted to try and say you were backing him because he was a principled thinker, and that others were supporting people for less high minded reasons.

ChrTh said...

I have an "outside the box" idea: nominate no one. Let the court go down to 7 members (and promote one to Chief Justice).

Brendan said...
This comment has been removed by a blog administrator.
Brendan said...

"Pick a real person -- a full human being with a deep understanding of life."

And yet Souter was a lifelong bachelor who lived at home with mommy. Doesn't sound too "worldly" to me.

Robert said...

I want someone with reasonably conservative and originalist views who isn't a team player - someone who will continue to hold their honestly-arrived-at views for 30 years even when the other justices think snippily of them for it.

Isn't that part of the problem with many jurists? They come in with their own ideas, and then they are convinced to change - not by logic or reason, but by what is essentially the same kind of watercooler-peer-pressure that makes people start watching different TV shows so that they'll have something to chat about during the coffee break.

Let's get someone who will stand their ground even if Thomas or Breyer or whomever thinks they're a big meanie for doing so.

Joel said...

It seems quite simple that we need originalists and that if a group wants to imbue the constitution with new rights, such as the right to abortion, or remove rights such as the right to private property immune from arbritrary government seizure, they should follow constitutionally dictated procedures to do that, namely a constitutional amendment, it was good enough for the 1st amendment....

Mark Daniels said...

Ann, would you define what you mean by "trivial, political grounds"? I surmise you're referring to anything from single-issue litmus tests to Senate-palatability. But I'd like to have a clearer understanding of your "original intent."

Ann Althouse said...

Mark: You're guessing about right. I don't mean larger ideological stances and theories of intepretation.

Mark Daniels said...

By the way, apart from philosophical considerations, I wrote several days ago about five attributes I think we should expect from our justices. Here's the URL: http://markdaniels.blogspot.com/2005/07/what-we-need-from-supreme-court.html.

Troy said...

Biggest brain?

That settles it. Justice James Isaac "Jimmy" Neutron. Debate over.


Maybe if Bush would loosen his cloning ideas we could get a real confirmation battle. Bring back Taney -- that would be a beautiful confirmation hearing. Or Hugo Black -- a liberal with a KKK past. That would be juicier than a horndogger Conservative who looks for pubic hair on Coke cans. And could a guy with the name "Felix Frankfurter" even get nominated today? Ay Caramba! This confirmation battle is going to be long and depressing I fear.

David Blue said...

I think what David Brooks said is bad and new.

The idea of the hero judge, who reshapes society through the exercise of his genius and power far above any law enacted by mere legislators, is a bad and undemocratic one. Ambition to reshape a nation and write oneself into history by bringing in a radical and transformative "landmark" decision is the last thing I want to see in a judge. I do not want to see judges vociferously arguing for radical social changes to be imposed from the bench either.

It follows that an influential fan club ready to applaud overly pushy judges is also a bad thing. For influential, respected people to call for a big-brained judge, one qualified to live up to the desired and expected role of the transformative social engineering genius, the super-legislator from the bench, is bad.

Liberals for a long time have liked the hero judge (I think naturally, partly for the results and partly from class-based fellow-feeling, with no clear line between the two) but conservatives (for equally obvious reasons) have not. So long as that held true, there was hope that a comprehensive conservative victory, one mighty enough to overcome the deep pull of "leftward drift", might result not in a radical right-wing activist court but a modest one, unencumbered by ideas of its own social engineering genius and instead intent on judging fairly according to the intent of the constitution.

OK, on some issues, mainly Roe, you have lobbies on the right that want results and nothing but results. But redress those grievances, and I think the idea of modest and fair judging according to original intent (as much as possible) has been pretty popular. I do not know of anybody on the right who was openly calling for anything else.

Until now: "What will matter in decades to come is whether you [George W. Bush] picked a philosophical powerhouse. Did you pick someone capable of writing the sort of bold and meaty opinions that will shift the frame of debate and shake up law students for generations?"

Yeesh.

This is bad and new. Now that it has been run up the flagpole, I hope nobody salutes it.

If this catches on, and both sides simply push all out for "genius" judges who believe that "do what thou wilt shall be the whole of the law" and intend to strike legal blows that will resound for generations, confirmation struggles are going to become uglier than we can at present imagine, and that will be the least of it wherever American law has influence.

gt said...

So we got the brain. Harvard law review editor. And a stealth candidate - said to be some sort of conservative, but we don't know what flavor. At 50 in 2005, he could be on the court for 100 years, if there's still a court. I'm starting to think Bush has played this pretty well, but it will take a few years before we really know.