Jeffrey Rosen brings up an interesting point about the judicial options for the next Democratic president. The recent Republican dominance of the White House leaves the Democrats with a very small group within the most desirable target candidates (relatively young, female or Hispanic, significant appellate court experience.) This will especially be true if the President has to appoint a justice quickly and doesn’t have time to install a future candidate as Bush did with Roberts. I definitely like the idea of perhaps going outside the appellate courts for a first nominee; as Rosen notes many fine justices have come from that background. Rosen also usefully reminds that Elena Kagan, a potentially strong candidate, “was nominated to the D.C. Circuit at the end of the last Clinton administration and never got a hearing.” Why, it’s almost enough to make me think that the Deeply Principled Republican arguments that Teh Constitution!!!!111One!!!1! requires nominees to get an up-or-down vote were a cynical ruse.
This is also an interesting point:
But a choice like this might be controversial among Democratic activists in the John Edwards wing of the party, who feel the current Democratic justices are already too sympathetic to business. The statistics here bear them out. On the Roberts Court, both Democratic and Republican justices have been remarkably pro-business: The Chamber of Commerce won 13 of the 15 cases in which it filed friend-of-the-court briefs last year, many by near-unanimous margins. In light of this, some Democratic interest groups may prefer a more populist candidate without an extensive resume as a corporate lawyer.
Yesterday’s oral argument in the Exxon Valdez punitive damages case starkly revealed Roberts’s slavish pro-business tendencies, but Breyer — who has joined (and written) opinions finding limits on punitive damages in the due process clause — at times also appeared sympathetic to Exxon’s arguments. Cases involving business interests is an area where the relative moderation of the current Court’s more liberal faction is particularly important.