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SCOTUS Counterfactual Exercise

Presented with this counterfactual, who should Obama nominate as Chief Justice?  

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  1. 1. Presented with this counterfactual, who should Obama nominate as Chief Justice?

    • Tony Kennedy
    • Ruth Bader Ginsburg
    • Stephen Breyer
    • Sonia Sotomayor
    • Elena Kagan
    • Nominate a new Justice other than Kagan (please specify)

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Let's suppose that John Paul Stevens, not William H. Rehnquist, had been the Supreme Court's Chief Justice during the 1990s. When Rehnquist died and Sandra Day O'Connor left her seat during the Bush presidency, President Bush had appointed John Roberts and Sam Alito to replace the two of them, but Stevens remained Chief Justice.


In 2010, Chief Justice Stevens announces his retirement from the SCOTUS. President Obama has already appointed Sonia Sotomayor to replace David Souter, and he's now left with a choice: who shall be the new Chief?


My original thinking was this: it's obviously Stephen Breyer. Breyer would be a far easier Senate confirmation than Sotomayor or a new Justice (like Elena Kagan), he's a tried-and-true liberal, and he's presumably in very good health.


But there are two problems with Breyer. First, he'd be yet another white male Chief Justice, and Obama has shown a taste for breaking those sorts of barriers in his appointments. Second, he's (apparently) 71 years old. Shouldn't Obama be looking to choose someone who can shape the Court for a longer period of time (as Bush did in real history with Roberts)?


Ruth Bader Ginsburg is older than Breyer and in worse health. Tony Kennedy is a moderate conservative, not a liberal at all. Sotomayor is nearly two decades younger than Breyer and would satisfy the "breaking barriers" requirement, but could she get confirmed? History says probably yes.


What about choosing a new Justice to be Chief? Kagan is Obama's real life nominee to fill Stevens' seat - she's a full 21 years younger than Breyer and 5 years younger than Sotomayor, and she'd break barriers as the first female Chief Justice. But she's new to the court and has no experience as a judge, so that rules her out, right?


Well, no. Most Chief Justice nominees (like Roberts) weren't Associate Justices before serving as the Chief. Some (like Earl Warren) had no judicial experience whatsoever. Why not pick Kagan, who might offer three decades of influence over the Court and would break the gender barrier, when there's precedent that allows for it?


I think I'd stick with Sotomayor. She has judicial experience and SCOTUS experience, which makes her about 10 times easier to sell than Kagan. Republicans would complain, but Democrats would fall in line and vote for her. Kagan has the major downside of offering real potential for a Senate defeat, which would be damning to the Obama Administration.


What do you think?

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I'm not entirely sold on the idea of Breyer having an easy confirmation if he was nominated, not in this Senate and political atmosphere. It's true that he's definitely liberal, but that's also his greatest hindrance. Ones like Ben Nelson would never vote for him, and I think several other Democratic Senators may have trouble since Breyer's jurisprudence easily lends itself to being caricatured as the stereotypical liberal activist judge in the eyes of a lot of voters. If the right-wing tea partiers swarmed on Sotomayor, they'd have a field day with Breyer's beliefs, no matter how reasoned they may be (I sort of dig his pragmatism really). He commits at least two cardinal sins in the GOP's eyes as well: He regularly votes in favor of abortion rights and also uses international law and foreign law as guides in deciding cases. He also has a pretty clear philosophic system that he's published in book form (Active Liberty). I find Breyer to be a tremendously interesting Justice and his philosophy is quite sophisticated, but he'd almost be like Bork in that there's too much out there for the people seeking to deny him the chief justice-ship (and make Obama look like a fool...Obama can't even get a current Justice confirmed; that'd be pretty damning) to cling on to, no matter how much it may be taken out of context (yes, I know the Bork, Breyer reference doesn't work very well, but both have a lot of material out there...that's what I'm trying to argue). Breyer is nothing like what Marshall, Brennan, or Douglass were, but you could count on people making him to be at least that "activist", even though he isn't. Obama is aware of how tiring a SCOTUS nomination is now which is why he chose Kagan in reality since she seems to be more centrist and there's just not much attackable material there.


I can get behind a Sotomayor confirmation. Her record on the Court has not been terribly liberal (it is, but not like tremendous), and you're right that the SCOTUS-experience would help. I'd rather choose Kagan, though, mainly because I believe, as her tenure at Harvard illustrates, she would be really help the Court become more unified by bridging the gap between the liberals and conservatives. If somebody like Sotomayor was Chief, I don't see that happening as much.



Another argument that Kagan could succeed as Chief Justice without having judicial experience: Chief Justice John Marshall had no experience either and we all know how he's remembered. Also, Brandeis had no experience nor did Hugo Black.

Edited by Monolith

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I voted for Sotomayor on the basis that she is a liberal judge that fits the bill of diversity.

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