Above the Law Founding Editor David Lat handicaps Joe Biden’s “Black Female” potential SCOTUS picks.

Who will President Biden pick to replace Justice Breyer? I offered some off-the-cuff reactions in a lengthy Twitter thread, and now I’ll provide more detailed analysis.

Here’s one thing we do know: the Biden Administration’s SCOTUS nominee will be a Black woman. In February 2020, back when he was a presidential candidate, Joe Biden promised to appoint the first Black woman to the Supreme Court. And yesterday, after news of Justice Breyer’s retirement broke, White House press secretary Jen Psaki reiterated that pledge.

Indeed, President Biden appears to have anticipated this very moment, by placing a record number of Black women on the federal appeals courts (where every current member of SCOTUS has come from, save Justice Elena Kagan). He has nominated eight Black women to the circuit courts, and five have been confirmed—doubling the number of Black women on the federal appellate bench.

Without further ado, here are five women I view as leading contenders to replace Justice Breyer on the U.S. Supreme Court, along with my rough odds on how likely it is that each will be nominated. Odds are, of course, subject to change (and I have already changed them from the odds I put out yesterday, in fact).

Judge Ketanji Brown Jackson: 3-to-2 odds (40 percent)
Age: 51 (born September 14, 1970)
Current role: Judge, U.S. Court of Appeals for the D.C. Circuit (since June 17, 2021)
Education: Harvard University (A.B.), Harvard Law School (J.D.)
Clerkship(s): Judge Patti Saris (D. Mass), Judge Bruce Selya (1st Cir.), Justice Stephen Breyer
Senate vote history: 53-44
ABA rating: Well Qualified

Judge Jackson is widely viewed as the frontrunner—and one can see why. First, she has the credentials and experience we look for in SCOTUS nominees (for better or worse): two Ivy League degrees; multiple clerkships, including a Supreme Court clerkship; and judicial experience, including service on the prestigious D.C. Circuit and eight years as a district judge before that. Second, she enjoys strong support in liberal and progressive circles, thanks to her background as a former public defender and rulings against Donald Trump and his administration in several high-profile cases—including the Don McGahn subpoena litigation, when she declared that “presidents are not kings.”

Third, she went through the Senate confirmation process just last year, winning support from all 50 Democrats, including Senators Joe Manchin (W. Va.) and Kyrsten Sinema (Ariz.), and three Republicans—Senators Susan Collins (R-Me.), Lindsey Graham (R-S.C.), and Lisa Murkowski (R-Alaska). Yes, a senator who previously supported her could argue “SCOTUS is different”—but the prestigious and powerful D.C. Circuit ain’t chopped liver, and any senator who voted for her last year did so with the knowledge that she was a potential high-court contender. And because Judge Jackson hasn’t done anything crazy while on the D.C. Circuit—indeed, critics might complain that she hasn’t done anything, period—it’s hard to see why any of these senators would have a change of heart.

So my guess is that Judge Jackson will get the nomination—unless there are some lucky breaks in favor of Justice Kruger, to whom we now turn. Read the rest of this entry »

Republicans win the presidency again and again, and Republican presidents battle Senate democrats to get supposedly responsible and conservative nominees confirmed to seats on the nation’s highest court. And it does no good.

Some of those nominees, like Sandra Day O’Connor, David Souter, or Anthony Kennedy, turn out to be liberal Q-boats. Others, like John Roberts and apparently Brett Kavanaugh and Neil Gorsuch and Amy Coney Barrett, just seem to lack what it takes to hand down decisions the Left seriously doesn’t like.

It is remarkable that a supposedly 6-3 conservative majority court faced with what look like cut-and-dried issues of serious significance, obviously thought about what the establishment media and their liberal friends in Georgetown would have to say, and punted, allowing the Left to win by default.

Case 1: Transgender pride 1, Commonwealth of Virginia girls 0.

The Supreme Court is passing on a key case involving a transgender student, and the ACLU is celebrating the news as an “incredible victory.”

The Supreme Court on Monday declined to hear the case of Gavin Grimm, the transgender student who challenged a Virginia school board’s policy that restrooms are “limited to the corresponding biological genders,” NBC News reports. Lower courts sided with Grimm that this violated Title IX, the civil rights law against sex discrimination, and since the Supreme Court isn’t taking up the case, Grimm’s win stays in place.

Josh Block, an attorney for the American Civil Liberties Union, told NBC that this was “an incredible victory for Gavin and for transgender students around the country,” while Grimm said, “I am glad that my years-long fight to have my school see me for who I am is over. Being forced to use the nurse’s room, a private bathroom, and the girl’s room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education.”

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Case 2: “Let the People’s Republic of Taxachusetts Reach Across State Lines to Pick New Hampshire Pockets!”

New Hampshire residents working remotely for companies in Massachusetts during the Covid-19 pandemic will still have to pay income tax as if they were commuting to work, after the Supreme Court turned away a challenge to Massachusetts’ rule.

The high court on Monday rejected New Hampshire’s complaint without comment. The justices have exclusive jurisdiction to hear disputes between states if they so choose and such complaints are filed directly with the court.

The dispute centers on a temporary emergency regulation adopted by Massachusetts last year that places a tax on “nonresident income received for services performed” outside of the state.

“For example, the entire salary of a New Hampshire resident who commuted to work full time in Boston in February but has not set foot in the commonwealth for more than eight months continues to be subject to the Massachusetts state income tax as if he were still working every day in Boston,” the complaint states. (Emphasis in original.)

New Hampshire sought a refund of those taxes for its roughly 80,000 residents working remotely for Massachusetts companies. It claims the rule infringes on its “sovereign right to control its own tax and economic policies.” New Hampshire is one of nine states that does not impose an income tax.

I guess the moral is that GOP presidents need to stop nominating justices from the ranks of the “really excellent sheep” top graduates of our most prestigious Ivy League law schools. Republican presidents should start looking for outsider, wild man justices who are serious about defending the Constitution and the culture and who have cojones.

Glenn Reynolds points out very astutely that, if the Supreme Court were genuinely representative of the country, instead of a small, and currently intensely abberant elite cultural clique, and if the Court had properly limited itself to interpreting the Law, rather than following the grand Dred Scott tradition of exploiting an ephemeral Court majority to settle intensely divisive national issues by judicial fiat, we wouldn’t have the vicious political struggle over Supreme Court appointments that has become the norm in recent years.

The power of playing the decisive Platonic Guardian card and getting your way permanently is too valuable a prize.

Why does Justice Ginsburg’s replacement matter so much that even “respectable” media figures are calling for violence in the streets if President Trump tries to replace her? Because the Supreme Court has been narrowly balanced for a while, with first Justice Anthony Kennedy, and later Chief Justice John Roberts serving as a swing vote. Ginsburg’s replacement by a conservative will finally produce a long-heralded shift of the Supreme Court to a genuine conservative majority.

That shift matters because, for longer than I have been alive, all sorts of very important societal issues, from desegregation to abortion to presidential elections and state legislative districting — have gone to the Supreme Court for decision. Supreme Court nominations and confirmations didn’t used to mean much — Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee — because the Court, while important, wasn’t the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.

The point isn’t whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy.

That makes the Supreme Court, a source of final and largely irrevocable authority that is immune to the ordinary winds of democratic change, an extremely important prize. And when extremely important prizes are at stake, people fight. And get hysterical.

Almost as bad, the Court is highly unrepresentative. That doesn’t matter when it’s deciding technical legal issues, but once it starts ruling on social issues of sweeping importance to all sorts of Americans, its lack of diversity becomes a problem. And not just the usual racial and gender diversity. Every current member of the Court is a graduate of Harvard or Yale Law Schools. (Justice Ginsburg offered a bit of diversity there, having spent her third year, and gotten her degree from, that scrappy Ivy League upstart, Columbia University. But she spent her first two years at Harvard). All of them were elite lawyers, academics, or appellate judges before arriving on the Court. They are all card-carrying credentialed members of America’s elite political class. Which, as I mentioned earlier, is in general pretty terrible.

Justices used to come from much more diverse backgrounds. Until well into the 20th Century, many Justices — Justice Robert Jackson was the last — didn’t have law degrees, having “read law” after the fashion of Abraham Lincoln, and for that matter pretty much every lawyer and judge until the 20th Century. Many had been farmers, military officers, small (and large) businessmen, even in one case an actuary. But now they are all, in Dahlia Lithwick’s words, “judicial thoroughbreds” with very similar backgrounds, backgrounds that make them very different from most Americans, or even from most lawyers.

So to break it down: All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues. And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large.

RTWT

Yes, we should probably turn over the appointment of a Supreme Court justice, whose job it is to uphold the Constitution, to a group of people threatening to pack the court, impeach for pure politics, and add states willy-nilly. Can't see the downside.

— Ben Shapiro (@benshapiro) September 21, 2020

Nemesis, statue dedicated by Ptollanubis. Marble, found in Egypt, 2nd century AD. Louvre Ma 4873.

Noemie Emery gleefully observes that the day of reckoning for democrats for what they did to Robert Bork has arrived.

Are you happy now, Teddy Kennedy? Are you happy, Joe Biden? Are you happy now, Harry Reid? It’s due to the things that you did and said that Donald J. Trump is now naming his second Supreme Court justice in under two years in office. It is your fault that the once courtly process of Supreme Court appointments turned into the blood-and-thunder-eye-gouging drama that we hate and we live through today.

It was 31 years ago, in 1987, that Edward M. Kennedy burst on the floor of the Senate to tell us all that with Robert Bork on the Supreme Court, “women would be forced Into back-alley abortions,” blacks would eat at segregated lunch counters, writers and artists could be censored at the whim of the government, and the freedom of millions would hang by a thread.

Before it was over, liberals would raise and spend over $10 million in negative ads (quite a sum at the time) and in lobbying efforts. They would threaten black witnesses with career-ending reprisals and seize and search records of video rentals for signs of blue movies that were never found.

As Steve Hayward says, “The demagogic nature of the public campaign against him made it a watershed moment in American politics, permanently deforming the nomination process as for the judiciary, with ideological battles now extending to the lower federal courts as well.”

RTWT

Tell us, Chuck Schumer, where is that filibuster, now that you need it?

Business Insider points out that Trump may just be getting started on remodeling the Supreme Court.

Trump now stands to secure two justices in the first half of his first term. Presidents Barack Obama and George W. Bush appointed two justices each during their eight years in office.

Supreme Court justices, who serve for life after a presidential appointment and Senate confirmation, represent one of the longer-lasting marks a president can leave on the country, as the justices often serve for decades.

But Trump reportedly thinks he can get an additional two justices in.

In October, the news website Axios cited an anonymous source detailing private predictions by Trump that Justices Ruth Bader Ginsburg and Sonia Sotomayor would retire during his term.

“What does she weigh? 60 pounds?” Trump asked of the now-85-year-old Ginsburg, a source told Axios. The same report indicated Trump said Sotomayor, over 20 years younger than Ginsburg, was also in trouble because of “her health.”

“No good. Diabetes,” Trump reportedly said.

Sotomayor had a health scare in January with paramedics treating her for low blood sugar, but she quickly returned to work. Sotomayor says she’s vigilant about her Type 1 diabetes, which she’s had since childhood.

During the 2016 campaign, Trump often said he or his Democratic opponent, Hillary Clinton, could end up appointing five justices. …

Ginsburg and Sotomayor are liberal justices, so replacing both Kennedy and either of them with conservatives could change the court’s makeup for decades, possibly reversing decisions like Roe v. Wade.

RTWT

Daniel Foster, at the Corner, supplies a list of the likely Obama choices to succeed Supreme Court Justice John Paul Stevens who has announced his retirement at age 90.

[B]eginning, roughly, with the center-most candidate and moving left, that list likely includes:

Merrick Garland – a former federal prosecutor and current D.C. Circuit appeals judge. A Clinton appointee, Garland is well-liked by Democrats and even some Republicans in the Senate.

Elena Kagan – The first-female Solicitor General and probably first-runner-up for the Sotomayor seat, Kagan has a record of the kind of cagey jurisprudence that is ideal for a tough confirmation battle. She is well-respected by just about everybody on both sides, but lacks the paper trail that would reveal just how far to the left she’d sit.

Diane Wood – Another Clinton appointee, considered the heaviest liberal counterweight to the conservative Chicago Seventh Circuit Court of Appeals dominated by Richard A. Posner. Wood was a colleague of President Obama at the University of Chicago Law School.

Pamela Karlan – A professor at Stanford Law School, Karlan is a longshot once was described by the New York Times as a “snarky. . . Antonin Scalia for the left.” Karlan is openly gay, and an outspoken liberal.

“Would I like to be on the Supreme Court?” Ms. Karlan asked once asked during a Stanford graduation address. “You bet I would. But not enough to have trimmed my sails for half a lifetime.”

A longer list would include some Obama DOJ officials / liberal legal intellectuals like Harold Koh and Cass Sunstein. And the administration reportedly vetted a number of politicians for the Sotomayor spot that could be reconsidered here, including Homeland Security Secretary Janet Napolitano (“the system worked”), Sens. Byron Dorgan (D., N.D.) and Claire McCaskill (D., Mo.), and Michigan Governor Jennifer Granholm (D.)

My two cents: It’s Kagan or somebody nobody is even talking about.

I suspect Obama is going to go farther leftward than most people expect.