As the presidential election grows nearer, the usual suspects among political commentators are starting to heat up one of the more significant and constantly oversimplified issues in presidential politics: the nomination of Supreme Court justices.  As usual, the left characterizes the nominees their candidate will pick as Superman-like fighters for Right and Good and Puppies and Rainbows while chastising the nominees that the Republican candidate will likely pick as subversive agents for the affluent and power interests of those evil Corporations and the racist patriarchy.  Meanwhile, the right seeks to spin their candidate’s nominees as the crusader for Right and Justice and Law and Order who will rein in those judges who let baby-killers and uppity queer-o-sexuals run rampant and let Congress steal from the affluent in a futile attempt to assuage White Guilt.

The reality of Supreme Court nominees, and judicial politics generally, is much more complicated than this.  Frequently, the appointment of justices is an attempt to fix a current political problem that just winds up resulting in three more political problems over the next couple of decades.  Perhaps there is no better example of this than Richard Nixon’s attempts to overturn the “liberal” Warren Court through the appointments of Justices Burger, Blackmun, Powell, and Rehnquist.  Most of the hallmark opinions of the Warren Court are still good law today, and it was the Burger court that decided the controversial case Roe v. Wade.  In this sense, Nixon’s appointments were a failure. 

The only one of Nixon’s Justices who actively opposed many of the Warren Court’s rulings, William Rehnquist, ended up a thorn in the side of future Republican presidents, like our current one, by voting to curtail the power of the DEA to bust state-sanctioned medical marijuana operations.  Rehnquist also caused a problem for neoconservatives by consistently asserting that the Supreme Court, not Congress and certainly not the President, was the final arbiter of the meaning of the Constitution, and would overturn laws he had said in previous decisions he wanted to uphold simply because Congress or the President snubbed the Court’s majority opinion in some other case by passing the law.

On the other side of the spectrum, liberal darling John F. Kennedy appointed Byron White to the Supreme Court.  White was known for opposing the doctrine of substantive due process, specifically the idea of a right to privacy. He dissented from Roe v. Wade and argued, along with Justice Rehnquist, that Federal anti-discrimination laws did not prohibit private schools from segregating by race. As you may suspect, White is not considered a liberal darling.

McCain’s Possible Choices

When most people talk about Supreme Court picks of a Republican president, they talk about judges who believe abortion is not a constitutionally protected right, who rubber-stamp extreme state criminal laws and punishments, and who regularly strike down laws intended to make the distribution of resources more egalitarian.  This poses a problem for a President McCain.  McCain can’t implement the kind of solutions he favored when he was pushing, for example, campaign finance reform, with the kind of conservative judges people usually invoke as judicial bogeymen: William Rehnquist, Antonin Scalia and Clarence Thomas.  These sorts of conservatives are the same ones who voted to overturn laws like the McCain-Feingold Act.

This leaves McCain in a position where nominating a justice more deferential to the executive branch and legislature could lead to a court that allows future liberal presidents (or conservative presidents) to run amok unchecked by stronger jurists like Rehnquist or O’Connor.  Which puts McCain into a really big pickle: nominate judicial conservatives who will constrain the sorts of reforms McCain has historically supported, or nominate a justice who will give the government, and therefore liberals and conservatives, carte blanche to do whatever it wants.

The safest course of action for McCain would be to nominate a standard darling of judicial conservatives.  The usual names that get tossed around in this circumstance are Janice Rogers Brown, Michael Luttig, and Michael McConnell.  There are some dark horse candidates that get mentioned, including Sam Brownback and Paul Clement.  But these are much riskier nominations and probably wouldn’t make it through a Democratic Senate.

Obama’s Possible Choices

On the other hand, Barack Obama has explicitly said he will probably draw from unusual sources to get judicial nominees.  While these nominees clearly need strong legal qualifications, they probably will not come from the traditional places, meaning current federal judges.  If all judges are out of the picture, the probably leaves us with sitting governors and current legislators.  Some names that have been floated are Deval Patrick, who was a civil rights attorney with the Justice Department and the governor of Massachusetts, Michigan governor Jennifer Granholm, and Ken Salazar, a US Senator from Colorado.

Obama has also been quoted as saying that he wants a Supreme Court nominee to empathize with litigants of many kinds.  For all the warm and fuzzy that this sort of statement holds, it’s going to be a problem in that “strict constructionists” and their supporters worry that Obama is knowingly promoting liberal judicial activism (whatever that means).

One of the more interesting speculations I’ve heard is that Obama might nominate Harvard Law professor Cass Sunstein.  Ordinarily I wouldn’t be too keen on the idea of a Justice Sunstein.  But Sunstein’s work on judicial administration has proven extremely interesting, and if put in a judicial policy-making position, could work to redesign the federal judiciary in some new and interesting ways.  Sunstein’s work particularly on three-judge panels and the echo chamber effect of putting politically similar judges on the same panels could make for some very interesting judicial reform.  While there are other academic prospects Obama could draw from, like Laurence Tribe and Harold Koh, Sunstein has the most appeal outside of ideology.

While most people’s understanding of judicial politics is oversimplified to the point of wrong, it is still an important consideration in picking a president.  Nominations to the Supreme Court are truly one of the longest lasting legacies of a President.  While the effects of any given nomination are hard to predict, largely because the issues nominees will face are hard to foresee, it is still important to take into consideration what kind of Supreme Court a president will help mold. Of course, because Justices have a lifetime appointment, it’s equally important to figure out which nominees will, like past Justices, break that mold.