Legal Commentary

?Obama?s Next Justice?

By Eugene Volokh

National Review Online asked a bunch of people ?What lies ahead?? with regard to the Stevens replacement, and published the answers here. There are contributions from our own Jonathan Adler, James Copland, Ted Frank, Rick Garnett, Stephanie Hessler, Curt Levey, Neomi Rao, Ralph Reed, William Saunders, Ilya Shapiro, and me. Here?s my answer:

What lies ahead? The November 2010 election lies ahead. The senators? eyes will be on that election, both for themselves and their colleagues in both houses of Congress.

The questions senators ask will therefore not be aimed at blocking the nominee ? the nominee will almost certainly be confirmed, given the Democrats? majority and the Republicans? likely unwillingness to try a filibuster. Nor will the senators? questions be aimed at informing themselves. Every trial lawyer knows: Don?t ask a witness a question unless you already know the answer.

The purpose of questions in this context is to communicate with the audience, not to enlighten the questioner. The Republicans will try to communicate that the Democrats are out of step with you, the voters. The Democrats will try to communicate that they are the party that you, the voters, should trust.

This dynamic, coupled with the Democrats? seemingly diminished popularity and their likely weakness with the voters on social issues (such as gay rights), suggests that President Obama probably won?t pick someone with much of a record on social issues. But I?ve been surprised by such things before, and may well be this time.