Legal Commentary

Tushnet on Lithwick?s Lament

By Jonathan H. Adler

At Balkinization, Mark Tushnet makes an important point about the relative lack of liberal icons on the short list to replace Justice Stevens: It?s early in President Obama?s term.  Scalia and Bork were nominated well into President Reagan?s second term, and both were in position to be nominated because Reagan had put them both on the U.S. Court of Appeals for the D.C. Circuit years earlier.  Reagan?s first Supreme Court nominee was Sandra Day O?Connor.  This was an historic appointment, but no one would have picked Justice O?Connor as a ?conservative rock star? then or now.  So, Tushnet advises Lithwick?s young charges, ?Patience, patience ? yor time will come.?

It?s also fair to note, as I have, that President Clinton was less strategic in his appellate judicial nominations than were Reagan, Bush, and Bush were.  He put relatively few intellectual heavyweights in the Scalia, Easterbrook, Winter, Posner, GInsburg, and Bork mold, on the bench.  As a consequence, there are relatively few judges he placed on the bench in position who could make an inspiring Supreme Court choice (though I think it obvious Diane Wood belongs on such a short list).  Further, as I?ve noted before, President Obama has also been incredibly slow in selecting judicial nominees, and the average age of his nominees to the appellate age has been significantly older than that of his predecessors? nominees.  This is not due to Republican obstruction, a hostile political climate, or some sort of double standard, but the Administration?s decision to focus its energies elsewhere.  But one consequence of this is Lithwick?s charges may have to be more patient than they (or she) would like.

Full post as published by The Volokh Conspiracy on April 18, 2010 (boomark / email).