A Different Shortlist
How about an old-style conservative Supreme Court nominee?
Posted Wednesday, July 6, 2005, at 7:14 PM
Most of the shortlists for the Supreme Court being bandied about (including ours) are predicated on the assumption that Bush is most interested in appointing a radical right-wing justice in the mold of Antonin Scalia or Clarence Thomas. That idea is supported by the names most often mentioned by the White House and people close to it. But what if the president decided to look instead for a conservative in the traditional sense of the word, a distinguished jurist who believes in moderation, judicial restraint, and deference to Congress? A shortlist that emphasized those qualities might include the following:
Maureen Mahoney, 50, is a leading appellate litigator for the Washington, D.C., firm Latham & Watkins, where she has represented clients including Union Pacific Railroad Co. and the government of Saudi Arabia. She clerked for Chief Justice William Rehnquist and was one of Kenneth Starr's deputies when he was solicitor general for President George H. W. Bush. During the last Supreme Court term, she won a unanimous reversal of Arthur Andersen's conviction for obstructing justiceby destroying documents during the Enron investigation. She also helped successfully represent the University of Michigan Law School in the 2003 case in which the Supreme Court upheld diversity as a rationale for affirmative action. Asked in a 2004 interview with the University of Chicago Magazine why she had taken the case as a staunch Republican, Mahoney said that her personal views weren't relevant but added, "I certainly was very comfortable with Michigan's position."
Reena Raggi, 54,was appointed as a federal district court judge on the Eastern District of New York by President Reagan in 1987 and promoted to the U.S. Court of Appeals for the 2nd Circuit by President Bush in 2002. She was the first woman to serve on the rough-and-tumble Eastern District, chosen after a standout career as a federal prosecutor specializing in narcotics and organized crime. In her 15 years as a trial judge, Raggi presided over high-profile cases, including the retrial of one of the police officers accused of sodomizing Abner Louima. Raggi sentenced the officer to the maximum five years after he pleaded guilty to perjury. Since moving up to the 2nd Circuit, she has cemented a reputation for being tough on crime but politically independent. The biggest mark against her as Supreme Court material for Bush is that Sen. Charles Schumer, the New York Democrat, called her "an ideal nominee."
Deanell Tacha, 59, is chief judge of the U.S. Court of Appeals for the 10th Circuit, to which she was appointed by President Reagan in 1985. As a lawyer in the 1970s, she directed a legal-aid clinic in Kansas. From 1994 to 1998, Tacha was a member of the U.S. Sentencing Commission, which makes recommendations about federal sentencing policy to Congress. When the commission voted in favor of eliminating the disparity in sentencing between drug crimes involving crack and powder cocaine, which have been challenged for having a racially discriminatory impact, Tacha dissented, saying that she could not "ignore the harms that are peculiarly associated with crack." In 2000, Tacha wrote an opinion striking down a campaign-finance limit on the amount of money a political party can spend in concert with a candidate. Republicans capitalized on the ruling to pour more money into close races in the House of Representatives that year. She has a reputation for being careful and solid, and has made a few pro-defendant rulings.
Barrington D. Parker, 60, was appointed to federal district court in New York by President Clinton and promoted to the 2nd Circuit by Bush in 2001. Before he went on the bench, Parker spent nearly 20 years practicing corporate law. As a district court judge, he earned a reputation for giving tough but fair sentences (including one to John "Junior" Gotti, who is John G. Gotti's son and was also a crime boss). In a 2nd Circuit case, he dissented from a decision by his colleagues to grant a new trial to a prisoner who said his lawyer had been ineffective. But Parker has also staked out a position critical of some of the administration's terrorism-fighting tactics. Breaking with another Bush appointee, he co-authored an opinion admonishing the administration for detaining Jose Padilla as an enemy combatant without Congressional approval. In a speech, Parker called attention to the obstacles confronting foreign-born graduate students after 9/11. He also upheld portions of the Violence Against Women Act, a federal gender-discrimination law that was later struck down by the Supreme Court, from challenges that it exceeded Congress's authority.
Frank Easterbrook, 57, is a judge on the U.S. Court of Appeals for the 7th Circuit, to which he was nominated by President Reagan in 1985. He also teaches at the University of Chicago Law School. Easterbrook is a proponent of economic analysis of law and co-author of a text book that helped establish the idea that corporations exist primarily to serve shareholders. He's the least moderate candidate on this list. But if he's a radical ideologue, he's not one of the Bush variety, and he's also damn smart. Easterbrook's pro-business record includes a decision to strike down a $500,000 award for punitive damages and a recent holding that Commonwealth Edison, the Chicago power company, had no obligation to tell its employees about future changes to their pension and benefit plans. In 2002, Easterbrook wrote an opinion freezing the assets of an Islamic charity accused of supporting terrorism, approving the government's use of secret evidence in the case. He believes in guarding closely against lawmaking from the bench. "I think that judges should be concerned less about wise policy and more about sources of authority for life-tenured officials to make decisions," he said in a 2004 interview with blogger Howard Bashman.
Oldies But Goodies
If age weren't a factor, Bush might also consider these 65-and-over candidates:
Richard Posner, 66, U.S. Court of Appeals for the 7th Circuit. Posner is brilliant, unpredictable, and generally viewed as one of the country's leading legal minds. Like Easterbrook, he uses economic analysis as a tool of legal analysis, but he's not as conservative.
John Danforth, 68, former Republican Senator from Missouri. Danforth is an Episcopalian minister who eloquently defends the separation of church and state. He opposes abortion but has also criticized the death penalty.
Michael Boudin, 66, chief judge of the U.S. Court of Appeals for the 1st Circuit. A conservative who is also a bit of an iconoclast, Boudin has issued rulings favoring plaintiffs in discrimination cases and written authoritatively about antitrust law.
David Newman is a contributing editor at Legal Affairs.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.