Bench Memos

What Next?

The past is prologue. Amidst the speculation about the President’s next choice for the court, it is important to remember that the President is now making the same decision he made just six weeks ago: whom to appoint to replace Justice O’Connor. Some people believe the President felt comfortable appointing John Roberts, a white male, only because he felt certain he would have another opportunity to make a “diverse” appointment. I’m not aware of any evidence for this view, other than the President’s own sincere commitment to diversity on the federal bench, which in fairness cannot be discounted.

But there is another interpretation, cherished by the President’s conservative admirers. It is that, as with other big decisions of his presidency, President Bush was able to keep his eye resolutely on the ball and focus on the big, the fundamental, the important things, determinedly refusing to take stock of second and third-order considerations. These observers see the Roberts nomination as a reminder of the sometimes forgotten power of quality and old-fashioned merit. Roberts’ character, intellect, and obvious qualification as one of the finest legal minds in the country have effectively trumped partisan politics, petty politics, and identity politics. The grousing about his race and gender in the wake of his appointment was mild and short-lived. It was at best a footnote, completely overwhelmed by praise for his abilities and qualifications. There is, it turns out, safety in quality.

The President is also keenly aware that his Supreme Court picks are an important part of his governance of the nation and his legacy to it after he leaves office. He understands what is at stake and deeply appreciates the importance of restoring power to the political branches by appointing judges who appreciate the passive virtues. Thus, in addition to neutral merit and qualification, the Roberts nomination can also be seen as a triumph of the President’s ability to put his governing philosophy ahead of his short-term political interests. (Lo and behold, it turns out that, in this area, too, good policy is good politics, and the perceived sacrifice of short-term political interests was revealed as illusory.)

If this interpretation is correct — that the President made his decision to appoint Justice O’Connor’s replacement based solely on merit and judicial philosophy in the long-term best interests of the nation — then it seems reasonable to suppose that he will make the same decision the same way the second time around. Nothing says this will point him to another white male, as the short list of the country’s best available conservatives surely includes women and minorities, but it means the white males won’t be categorically excluded from consideration either.

If that’s so, here are a couple of new names to keep your eye on as dark horse candidates if the President tries to replicate the Roberts model: Steve Colloton, a judge on the Eighth Circuit, and Jeff Sutton, a Judge on the Sixth Circuit. Both are brilliant former Supreme Court clerks; both have long records of public service, Colloton primarily as a prosecutor and Sutton primarily as a Supreme Court and appellate advocate; both are widely respected, right to left, with plenty of supporters among Democrats of good faith; both are supported by influential home-state Republican Senators on the Judiciary Committee; both are young men in their mid-40s; and both were originally appointed by this President and thus are seen as part of the Bush judicial “family.” Some controversy attended Judge Sutton’s confirmation, because he is closely identified based on his work as an advocate with the Supreme Court’s new federalism jurisprudence. Colloton sailed to confirmation with no problems at all. Whether their time is now or in a future Republican administration, they’re worth adding to the evolving lists of credible candidates.


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