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Monday, May 11, 2009

Which Seat Would Cass Sunstein Fill?

Cass Sunstein has a problem if he wants to get on the Supreme Court. It's not his intellect or credentials. According to Elena Kagan, also a contender for the high court, "Cass Sunstein is the pre-eminent legal scholar of our time — the most wide-ranging, the most prolific, the most cited, and the most influential."

A shoe-in shoo-in for the Court? Maybe, but maybe not now. The reason? It is not clear which "seat" he would fill. Perhaps recognizing the problem, Sunstein argues for "intellectual diversity" rather than diversity based on demographics:
The question of diversity on the Supreme Court has been with us for a long time. In the past, there was a de facto "Jewish seat" on the Supreme Court, first filled by Louis Brandeis and then for many years by Felix Frankfurter, who was succeeded by Arthur Goldberg, followed in turn by Abe Fortas. (Justices Ruth Bader Ginsburg and Stephen Breyer are both Jewish.) There is, in effect, an African American seat today. Thurgood Marshall was replaced by Clarence Thomas and, unless another African American is named to the court first, when Thomas leaves he will almost surely be replaced by an African American....

Unfortunately, all this focus on demographics misses the most important point. What the court most needs is intellectual diversity. It should have people with a range of perspectives, different kinds of knowledge and different points of view. For many questions that come before the court, expertise is important, and it is impossible for anyone to be an expert in everything. The court has greatly benefited from having Breyer, a specialist in copyright law, and Justice Antonin Scalia, a specialist in separation of powers. And for the most important questions, internal differences are crucial because they sharpen arguments and increase the likelihood that the court will get it right.

Sunstein's argument is not a self-serving attempt to get Obama's nomination. The argument quoted above was made with regard to George Bush's nomination of John Roberts in 2005. But the point remains true to this day. It is unclear which "seat" Sunstein would fill, particularly if new seats are assigned based on race, gender or ethnicity.

But it is clear that Sunstein would fill an intellectual seat and be a formidable voice on the Court to rival John Roberts. That may not be enough.

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  1. well, let's not allow the fact that sustein is self-interested to obscure the fact that he is making sense. The entire idea of the diversity argument is that if you put together alot of different races, genders etc. you will get different views. But what ends up happening in reality is you get a rainbow of liberal voices, who only vary in whether they are to the left or right of marx. Diversity of people was supposed to result in diversity of viewpoint, but in fact the left hates diversity of viewpoint.

    Except it won't actually work anyway. You can't create liberal and conservative seats on the supreme court and expect any future president to honor that distinction. But sustein would make much more sense in the context of, say, university admissions.

  2. Sorry to be a quibbler, but it's "shoo-in," not "shoe-in." In its original meaning, it referred to a horse-race that was rigged such that all that had to be done was to "shoo" the winner across the finish line.

  3. I just heard on CNN that our illustrioous DHS secretary is the leading candidate.

    That will make the Gay lobby wet their nappies. But she seems like a complete dolt in her current job.

  4. You will have to pardon me if I don't get too outraged over Cass "Second Bill of Rights" Sunstein being hoist with his own petard.

  5. President Obama will have more than one opportunity to fill a seat on the high court.

    Only four justices served on the court past their eighty-fifth birthday.

    1. Justice Holmes retired at the age of ninety on January 12, 1932 after twenty-nine years of service.

    2. Justice Stevens is eighty-nine and has served on the court since December 19 1975, on December 19, 2009 Justice Stevens will complete begin his thirty-fourth year of sevice.

    3. Chief Justice Taney served on the court for twenty-eight years before dying in harness on October 12, 1864 at the age of eighty-seven.

    4. Justice Black, served on the court for thirty-four years before retiring on September 17, 1971 at the age of eighty-five. He died eight days after retiring.

    Assuming Justice Stevens wishes to eclipse the age record set by Justice Holmes and the tenure record set by Justice Douglas he must serve until February 24, 2011 and July 15, 2012 respectovely. In either case President Obama will be afforded the opportunity to appoint his successor. Sunstein would be a worthy successor to Stevens and a good companion for Justice Breyer and Ginsburg providing excellent foils for the Chief Justice and Justice Scalia and Alito while providing a continued coherent response from the liberal side of the bench.

  6. ChessNovice - but to achieve demographic diversity, it is hard to see a place for Sunstein or any male nominee. Assuming Ginsburg retires and is one of the three total spots to be replaced, appointing three women to the court will be necessary just to get to a 6-3 ratio. Additionally, Sunstein does not have any ethnic or racial component which would add diversity. So intellectual diversity and his other persuasive attributes are his only chances.

  7. Dr. Jacobson, I do not dispute that, the need for demographic diversity raises an interesting question.

    If President Obama were to nominate a woman to the Court I would lean toward Solicitor General Kagan or Judge Diane Pamela Wood from the Seventh Circuit

    1. SG Kagan by virtue nof her position cannot be excluded because, Chief Justice Taft and Associate Justices Reed, Robert Jackson, and Thurgood Marshall occupied the pposition piror to their elevation to the Court.

    2. Judge Wood may also be a leading candidate as member of the Seventh Circuit which includes the President's home state.

    Conversely if Preident Obama nominates a minority Justice regardless of gender, then I would add Attorney General Eric Holder to the list because, Chief Justice Taney and Chief Justice Stone served as AG's prior to their nominations. Additionally, Associate Justices Clifford, McKenna, Moody, McReynolds, Murphy, Robert Jackson, Tom Clark served as AG prior to their elvation to the Court. Also it should be noted that Edwin McMasters Stanton a former AG was confirmed by the Senate but died before being sworn in as a justice.

    Although being AG does not impart an absolute certainty of confirmation as illustrated by the failed nominations of John Jordan Crittenden, Jeremiah Sullivan Black, Henry Stansberry, Ebenezer Rockwood Hoar, Caleb Cushing, and Robert Bork.

  8. Obama should have enough political cover not to appoint a descriptive representative. Hispanics voted for Obama at a 2-1 clip, as did gays. Why would he need to appoint someone from those demographics if his support from them is already solid? Where would those demographics turn to if Obama didn't nominate a Hispanic or gay-friendly justice?

    So, which demographic does Sunstein fit into? Well, my thinking is that two demographics that have been disappointed with Obama are the far left intellectuals and Wall Street. The elite. From Obama's takeover of major sectors of our economy and vilifying of the rich to his continuation of many of Bush's policies regarding torture, these two very important groups seem to be the ones who require the most coddling in a SCOTUS appointment. I think Sunstein (or someone like him) fits this demographic quite well.