In this essay in the current issue of the New Republic, Jeffrey Rosen observes that “the bench of potential [Supreme Court] candidates [for a Democratic president] is surprisingly thin” and that “a President Barack Obama or Hillary Clinton might have to look for candidates in unexpected places.” Rosen briefly discusses several possible candidates and closes, tongue (I think) firmly planted in cheek, with this suggestion: “Once Obama has beaten Clinton, or vice versa, and gone on to the White House, the winner can appoint the loser to the Supreme Court.”
Without my silence on his other candidates being misconstrued as acquiescence, I would like to offer observations on Rosen’s comments about two of his recommendations, Second Circuit judge Sonia Sotomayor and private practitioner Beth S. Brinkmann:
1. After identifying Sotomayor as one of “two relatively young female Hispanic circuit judges appointed by Clinton,” Rosen states: “The Republican attack machine has long been gunning for Sotomayor, attacking her as a liberal activist even though she was appointed to the federal district court by the first President Bush.” Gee, David Souter was also appointed by the first President Bush. I didn’t realize that no judge appointed by him—or by President Reagan or by the second President Bush, for that matter—could ever turn out to be a liberal activist.
Further, when Sotomayor was nominated to the district court in 1991, the New York senators, Moynihan and D’Amato, had forced on the White House a deal that enabled (as I recall the details) the senator not of the president’s party to name one of every four district-court nominees in New York. Sotomayor was Moynihan’s pick. I am reliably informed that Bush 41’s White House nonetheless resisted nominating her and did so in the end only as part of a package to move along other nominees whom Moynihan was holding up. There is, in other words, nothing about the fact that the first President Bush nominated Sotomayor that should lead anyone to believe that she is remotely inclined towards judicial restraint.
In 1998, on the roll-call vote on President Clinton’s nomination of Sotomayor to the Second Circuit, 29 Republican senators (including John McCain) voted against her nomination. They did so despite the fact that the politically easy vote would be in favor of a female Hispanic nominee, and they did so based on their review of her district-court record.
I haven’t seen any review of Sotomayor’s Second Circuit record—where are the memos from that supposed “Republican attack machine”?—but it would be quite a surprise if Sotomayor has turned out to be a quality judge. In any event, a Democratic president would be foolhardy to think that her district-court nomination by the first President Bush will immunize her record from responsible criticism.
2. Here’s what Rosen has to say about Brinkmann: “A Democratic, female John Roberts would be a highly respected Democratic Supreme Court advocate, and the clear front-runner in that category is Beth S. Brinkmann, 49, a partner at Morrison & Foerster who has argued more than 20 cases before the Court.” Rosen worries, though, that “[d]espite Brinkmann’s impressive resume as a clerk to Harry Blackmun and a former federal public defender, [some Democratic] interest groups might be reluctant to support her because of her presumed pro-business sympathies.”
A former colleague of Brinkmann, in an e-mail to me, assesses her rather differently:
Beth is plenty smart, at an impressionistic, gestalt level, but she is one of the least linear thinkers I have met, in Supreme Court practice or any legal practice. If you ask Beth to get you from A to C, she could not do it in fewer than 9 steps. It would probably involve a detour, albeit an interesting one, through L, X, P, and some Spanish or French letter that is not even in our alphabet.
The Chief is a cold, rational intellect. Beth? Not even in the same galaxy.
The notion that she is somehow sensitive to business concerns — just because, at present, she finds herself in the sad predicament of having to work for a living at a law firm — is just bonkers. She is as hard left as they come.
In sum, the Democratic bench appears to be even shorter than Rosen imagines.