Saturday, April 10, 2010

Narrowed Down

NRO asked various contributors for their take on who Obama will nominate to fill John Paul Stevens' court seat. Ted Frank, of the Center for Class Action Fairness, makes what I can only imagine to be a faux-serious case for Frank Easterbrook:
One striking thing about the Obama administration is the extent to which it has modeled itself after the television series The West Wing — right down to picking silly fights with talk-show hosts.

Obama could do it again. The fictional President Bartlet, faced with the political problem of two Supreme Court vacancies, picks someone Republicans would like in addition to his conventionally liberal choice. Having already nominated a conventional liberal in Justice Sotomayor, Obama could demonstrate his bipartisan chops by nominating the greatest living jurist — his fellow Chicagoan, Reagan appointee Judge Frank Easterbrook.

Judge Easterbrook is 61, older than any Supreme Court nominee since 1972, and, in his 25 years on the bench, he has become famous for such principled stands as upholding the constitutionality of a Chicago ban on spray paint even as he ridiculed it as a ludicrous law. If Obama forces swing-state Democrats in the Senate to vote for the confirmation of a judicial activist out of the popular mainstream, he’ll make the 2010 midterms even more painful for his party than they’re already expected to be. On the other hand, Obama can recapture independents for an increasingly marginalized Democratic party by proving that he values merit more than politics (including identity politics) in the nomination process. Think how relieved Senators Specter, Reid, Lincoln, and Bennet would be.

Aside from getting the West Wing plot wrong (Bartlet nominated a liberal and conservative because the two justices leaving the Court were a liberal and a conservative. That hardly applies when the anchor of the Supreme Court's left flank is the one retiring), I can only say come on. Even if we narrow the field to conservative 7th Circuit judges affiliated with the University of Chicago who are already living legends, Obama still would nominate Richard Posner over Frank Easterbrook (no slight intended on the latter -- Posner's just more iconoclastic).


PG said...

Faux-serious = self-interested.

joe said...

From the start of this post I was thinking exactly that Posner would be far more intuitive. (Actually, depending on how many seats the Republicans gain in the next few years, Posner might be a smart choice if there were a vacancy from one of the conservative justices. He's old so that decreases his chances to retire strategically. Plus he's awesome. The Court desperately needs a justice who admits all judges do what they hell they want anyways._