Replacing a Supreme Court Justice

On today’s podcast, Steve moderates a conversation about the politics of replacing Justice Stephen Breyer ...

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On today’s podcast, Steve moderates a conversation about the politics of replacing Justice Stephen Breyer on the Supreme Court. Joining Sarah on the panel is Gregg Nunziata, who worked on the Senate Judiciary Committee, and John McCormack, Washington correspondent for National Review. What does replacing a Supreme Court justice look like from behind the scenes? Our panel has that answer and more.

Show Notes:

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  1. Robert and Kim

    I'm a little late with this but wanted to make two comments. First: I think Sarah said that Judge Childs did her undergrad at the University of South Carolina. In fact, it was the University of South Florida. Secondly: While I also don't believe Lindsey Graham's story, I live in a rural county in Virginia where it's entirely realistic that three guys pull up in pick-up trucks to unload their trash and end up chatting about the issues of the day.

    LOVE the podcast!

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      Sarah Isgur vertical-nib Author

      I have been misreading her undergrad THIS WHOLE TIME. I said it again incorrectly today before I read this. But from now on, I'll get it right.

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    WKDawson

    Sarah, perhaps David kind of said it partly with the "good ol boys" network, but you articulated it far more accurately. Corruption is subtle. It would be better to assume that the problem is lack of awareness rather than intentional discrimination.

    For example, ... I've lived in Japan for a long time. So I have had to compete with Japanese for work. Obviously, the employer knows what to expect of a Japanese citizen who grew up here, but the employer has more difficulty assessing what to think of an American. The relationship will obviously be different, and there are likely to be things that don't work in the predictable way. So, with the same qualifications, same general experience, and no unusual talent that cannot easily be replaced, which would the employer choose?

    Segregation even sort of happens by natural tendencies. I don't think people here hate foreigners, but they are different, and most people don't have a habit to reach out to people who are different. Back when I lived in the US, I didn't hate foreigners, but it was more fun to hang out with my friends. It takes work to build friendships with people you really don't know. We take some risk just reaching out, and the possibilities for misunderstanding are always large and almost guaranteed to happen at some point. So there is a habit just to do nothing.

    I think this is basically what you were saying.

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    PaulH

    I was surprised that Michelle Childs was not even discussed on the podcast. The resumes of the other two prominent candidates are probably stronger but Childs has the support of Jim Clyburn -- who was pivotal to Biden winning the nomination. He is actively campaigning for her, so she is definitely in the mix.

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    Bill Dyer (aka Beldar)

    I was one of the very few legal pundits on the right who defended the Miers nomination, beginning on October 3, 2005, when the nomination was first announced, and continuing through its withdrawal. If you're interested, you can start with this post, and work forward chronologically for the next three dozen or so posts: https://www.beldar.org/beldarblog/2005/10/the_miers_nomin.html

    Ms. Miers was treated SHAMEFULLY by a great many in the initial hours after her nomination, including by Rich Lowry at NRO — who, to his credit, promptly and publicly apologized after I chastised him for spreading calumnious untruths about her. https://beldar.blogs.com/beldarblog/2005/10/correcting_rich.html

    Otherwise, my debate with various folks at NRO, including Mr. Goldberg, JPod, Randy Barnett, and a great many other contributors, was always spirited but respectful. Here's my Fisking of one of NRO's editorials opposing the nomination; I think it holds up: https://www.beldar.org/beldarblog/2005/10/i_present_witho.html

    At one point someone from the right hemisphere of the 2005 blogosphere — I think it was Bill Kristol, but I'm not sure — credited me with doing a better job of defending the nomination than the White House itself did. And alas, I greatly fear that that is true, which is less a credit to me than an indictment of the Bush White House's naivete.

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    Ben Connelly

    Sarah, this was the first time I’d heard someone say, “STFU,” in 8 years.

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    The Bell Tower

    Unless the nominee has some real obvious issue, it would be great to see Republicans recognize political reality, embrace the nominee as qualified and historic and completely take the wind out of the progressive race war sails.

    I guess this would never fly in Super Red Trumptown but maybe we’ll get more than 2 or 3 Republican votes.

    Probably not.

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    Young Riprock

    Sarah,
    The last Justice to serve on a state Supreme Court was one of those you mentioned in earlier in the podcast. One David Souter who was on the New Hampshire Supreme Court before going to the First Circuit.

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      Bill Dyer (aka Beldar)

      The rather different docket of the New Hampshire Supreme Court, and the very short length of time he'd served on the First Circuit, were precisely why John Sununu recommended Souter to Bush-41 as a "stealth candidate" who could be easily confirmed because he had so thin a record — as compared to Robert Bork, who was famously the Velcro Nominee.

      [EDIT:] During the linked Commentary podcast, JPod made a remark to the effect that U.S. Circuit Judge Ketanji Brown Jackson, having been just confirmed to the D.C. Circuit in June 2021, has therefore yet to publish a written opinion — making her even more of a stealth candidate than Souter was.

      But with due respect to JPod, of whom I've long been and expect always to be a big fan, this is one of those times when he leaves me shaking my head.

      Ketanji Brown Jackson was confirmed to the bench of the U.S. District Court for the District of Columbia in March 2013. That's the trial court level which generates the overwhelming bulk of the appellate docket of the court to which she has just been promoted, the D.C. Circuit. She's had the likes of Merrick Garland and Brett Kavanaugh grading her papers for all those years. If you think I'm being metaphorical, I am not: The papers I refer to would include the 315 search returns from Google Scholar's database for that trial court, from 2013 through 2021, which include the exact phrase: ""Memorandum Opinion Ketanji Brown Jackson District Judge."

      https://scholar.google.com/scholar?hl=en&as_sdt=4,140&as_ylo=2013&as_yhi=2021&q=%22Memorandum+Opinion+Ketanji+Brown+Jackson+District+Judge%22&scisbd=2

      In other words, she's got a long and deep record of written opinions, the common theme of which will be that they've been filed in the nation's capital in the nation's most important federal trial court. And with all those opinions, comes an empirical record of how often judgments from her court have been appealed, and of those, how many have been upheld, and how many have been reversed. It's a somewhat messier scorecard than that, due to split results and other complications. But if that record were anything other than — lesser than — that which it's being portrayed as by her supporters, we'd already have read that in this weekend's media.

      And before her appointment to the bench, she made — and has left behind her, for repeated vetting, most recently in connection with her confirmation last summer — a further written record through her service on the U.S. Sentencing Commission. Before that she was an appellate advocate for a prominent BigLaw firm, Morrison & Foerster (universally known as MoFo), and before that a federal public defender. Lawyers like her live almost their entire professional lives through the printed and spoken word. And she has had a very busy life, with lots of words.

      "Stealth nominee," she definitely would NOT be.

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      Sarah Isgur vertical-nib Author

      But that doesnt count! I mean it kind of does. But he went to the federal circuit in between. Lewis Powell is the last go to go straight from the state to the Court...yes I did research this after the pod;)

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        Bill Dyer (aka Beldar)

        Powell was in PRIVATE PRACTICE. The SCOTUS was the first bench upon which he ever sat. He'd been managing partner at Hunton & Williams and president of the ABA (in a time when the ABA wasn't a partisan advocacy group).

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          Young Riprock

          Last to go straight from state supreme court was Brennan. He was on the New Jersey Supreme Court.

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            Bill Dyer (aka Beldar)

            I happened to know about Powell's particular history from looking up, during the short-lived Miers nomination, who'd last joined the SCOTUS directly from private practice. At that time (2005), something close to half of the SCOTUS' bench had been practicing lawyers, with no judicial experience, before joining. But I think it's likely we'll never again have another SCOTUS nominee who's never been a judge.

            I guess I'm okay with that. Law schools, as operated for the last six or eight decades at least, actually do a better job preparing a lawyer to be a judge IMHO than to actually practice law: All those essay exam questions are very much like assignments to draft a majority or dissenting opinion!

            But my views are colored by my own clerkship. The judge for whom I clerked, now-Senior Status Circuit Judge Carolyn D. King of the Fifth, was never a trial or even adversary practice lawyer, but a true deal lawyer — a specialist in the federal and state securities laws in particular, and business and contract law more generally (with a very limited and mostly non-adversarial dose of bankruptcy experience mixed in).

            During her first year on the bench, she led the charge to get two Fifth Circuit panel opinions on securities law topics reheard en banc. One of them had declared "ambiguous" — and thus needful of a jury trial to determine the underlying intent of the parties — the model debenture indenture, a highly stylized and deliberately standardized contractual framework that had been used for essentially every debenture issued by a public company in the 20th century. The panel — comprising three smart judges, including the then-chief judge, who all had very traditional trial lawyer backgrounds before taking the bench — literally didn't have a clue how profoundly their opinion roiled the national debt securities market: If the opinion stood, then thousands of issuers would need to make amended disclosures heavily qualifying the formal legal opinions of hundreds of securities law firms upon the issuance of those debentures, and there would be a strong positive incentive for disappointed debt securities owner (like the convertible debentureholders in that case) to sue everyone in sight if their securities suffered in the marketplace. She ended up turning the old Fifth Circuit around, with 23 of the 24 participating judges (including the chief who'd written the panel opinion) joining in her en banc opinion which resolved all of the purported ambiguities found by the panel, thereby restoring the confidence of the debt markets that the panel opinion had profoundly shaken. I think she saved the Fifth Circuit from its own ignorance, in other words, because even as a rookie, she had an important sort of substantive legal expertise that no one else on that very large circuit court bench had.

            I'm therefore much more an advocate of PRACTICE diversity for federal judges, especially appellate judges, than I am of any other kind of diversity.

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        Young Riprock

        I think we’re down to a 1/8 credit on the answer.

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    Dan Jett

    Re Kruger’s prospects: she just authored an important opinion Thursday for employment law, Lawson v. PPG Architectural, where she comes off as a strict constructionist, applying California’s statutory burden of proof for whistleblower retaliation tort claims, which is not as employer-friendly as the McDonnell-Douglas burden shifting analysis applied under Title VII. Kruger would be a better long-term pick, but the Senate probably would paint her as a “crazy Californian” like Rose Bird.

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    Will Roberts

    If the background check for Supreme Court nominees is so extensive why were the Kavanaugh allegations not discovered and dealt with privately? Did someone just miss it and it was later discovered? Or was it intentionally held back for political gain? Or was it discovered later and released to the media for political gain?

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      Rachael Larimore staff-badge Staff

      As it happens, podcast guest Gregg Nunziata wrote about how the process could have and should have gone, back for the Weekly Standard. I’m afraid the archival links don’t work very well, but here you go: https://www.washingtonexaminer.com/tag/supreme-court?source=%2Fweekly-standard%2Fhow-the-democrats-could-have-handled-the-allegations-against-kavanaugh

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        Will Roberts

        Thanks for this. So basically Feinstein's office leaked the info to the press? Couldn't you be prosecuted for that? Was anyone prosecuted? Also how early or late in the process did Ford notify Feinstein of her concerns?

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          PaulH

          I don't think we ever got a straight answer why Feinstein's office sat on the allegations so long or who actually leaked the story.

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          Rachael Larimore staff-badge Staff

          To be honest, and because I don’t want to say something incorrect, I can’t quite remember whether they were leaked to the press or Feinstein just went public with them herself. But the larger point is that she could have handled them much differently. My own take is that the Dems maybe hoped they could quash Kavanaugh without them but held them back for an 11th hour surprise.

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  10. Frederick F

    Sarah misquoted Mitch McConnell. The quote, as reported, was “[. . .] if you look at the statistics, African American voters are voting in just as high a percentage as Americans.”

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      PaulH

      @Frederick: Yes, it seems like McConnell just dropped the word "other".

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      Sarah Isgur vertical-nib Author

      Apologies---thanks for clarifying it.

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      1. Frederick F

        No problemo

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