Fifty farm teams

Has the White House learned the right lesson from the Miers debacle?  Any number of people will tell President Bush that after the embarrassing implosion of one Supreme Court nominee he needs to make a soothing 'consensus' choice.  A few of those people will even be sincere, but their advice is as bad as it could be. 

Harriet Miers proved that there is no such thing as a consensus choice for the Supreme Court.  President Bush tried to split the difference between right and wrong.  Inevitably he wound up with a muddle that nobody could support enthusiastically and very few could support at all.  He cannot please both sides.  His only choice is to please his friends and gird for battle against his enemies.  Pleasing nobody and girding for battle with everyone just doesn't work. 

A good rule of thumb for the White House to follow is this:  If a prospective nominee seems unlikely to give Ted Kennedy the massive stroke for which he is long overdue they need to find somebody more confrontational. 

Now that the White House is once again in the market for a Supreme Court Justice, I'd like to offer up a modest bit of advice.  There was one good thing about the Miers nomination; build on what you did right.  The White House has now shown that it is willing to look beyond the usual suspects, the people who are always mentioned in connection with both actual and hypothetical vacancies on the Court.  The usual suspects are almost all either judges of the U.S. Courts of Appeals or highly—credentialed lawyers with extensive service giving constitutional advice and arguing appellate cases for the federal government.  The President should once again cast his net outside that pond.

There is a problem forecasting the Supreme Court career of  most usual suspects.  A long history of manipulating Supreme Court doctrine as either an intermediate appellate judge or an advocate doesn't necessarily tell us much about a candidate's ability to make or remake that doctrine as a member of the Court. The work of a Supreme Court Justice is far more creative than anything the usual suspects do before they are considered for the Court.  It takes different talents.  It also takes courage of a kind and in a degree most lawyers never have to demonstrate. 

Fortunately there is a neglected talent pool of people with experience judging on courts of last resort.  We have fifty states and each has such a court.  Think of those courts as the U.S. Supreme Court farm team.  It is possible to get a much better read on what sort of Supreme Court Justice a potential nominee will be when that person already has a record of writing the last word. 

Of course, the fact that it is possible to get a good read on certain state judges doesn't mean the White House will do so.  David Souter spent most of his pre—Supreme Court career on the New Hampshire S.J.C.  His record there should have been disqualifying.  Unfortunately it wasn't and the rest is history.  William Brennan came from the New Jersey state bench.  If you are sufficiently clueless even the best information can't protect you from a mistake. 

Janis Rodgers Brown is one of the best known quantities among the usual suspects because she spent years on the California Supreme Court.  The Michigan Supreme Court has several good prospects and there is at least one other in Florida.   These are just the most obvious possibilities on the state bench. 

Happy fishing guys.

J. Peter Mulhern is a lawyer in the Washington, DC area.

Has the White House learned the right lesson from the Miers debacle?  Any number of people will tell President Bush that after the embarrassing implosion of one Supreme Court nominee he needs to make a soothing 'consensus' choice.  A few of those people will even be sincere, but their advice is as bad as it could be. 

Harriet Miers proved that there is no such thing as a consensus choice for the Supreme Court.  President Bush tried to split the difference between right and wrong.  Inevitably he wound up with a muddle that nobody could support enthusiastically and very few could support at all.  He cannot please both sides.  His only choice is to please his friends and gird for battle against his enemies.  Pleasing nobody and girding for battle with everyone just doesn't work. 

A good rule of thumb for the White House to follow is this:  If a prospective nominee seems unlikely to give Ted Kennedy the massive stroke for which he is long overdue they need to find somebody more confrontational. 

Now that the White House is once again in the market for a Supreme Court Justice, I'd like to offer up a modest bit of advice.  There was one good thing about the Miers nomination; build on what you did right.  The White House has now shown that it is willing to look beyond the usual suspects, the people who are always mentioned in connection with both actual and hypothetical vacancies on the Court.  The usual suspects are almost all either judges of the U.S. Courts of Appeals or highly—credentialed lawyers with extensive service giving constitutional advice and arguing appellate cases for the federal government.  The President should once again cast his net outside that pond.

There is a problem forecasting the Supreme Court career of  most usual suspects.  A long history of manipulating Supreme Court doctrine as either an intermediate appellate judge or an advocate doesn't necessarily tell us much about a candidate's ability to make or remake that doctrine as a member of the Court. The work of a Supreme Court Justice is far more creative than anything the usual suspects do before they are considered for the Court.  It takes different talents.  It also takes courage of a kind and in a degree most lawyers never have to demonstrate. 

Fortunately there is a neglected talent pool of people with experience judging on courts of last resort.  We have fifty states and each has such a court.  Think of those courts as the U.S. Supreme Court farm team.  It is possible to get a much better read on what sort of Supreme Court Justice a potential nominee will be when that person already has a record of writing the last word. 

Of course, the fact that it is possible to get a good read on certain state judges doesn't mean the White House will do so.  David Souter spent most of his pre—Supreme Court career on the New Hampshire S.J.C.  His record there should have been disqualifying.  Unfortunately it wasn't and the rest is history.  William Brennan came from the New Jersey state bench.  If you are sufficiently clueless even the best information can't protect you from a mistake. 

Janis Rodgers Brown is one of the best known quantities among the usual suspects because she spent years on the California Supreme Court.  The Michigan Supreme Court has several good prospects and there is at least one other in Florida.   These are just the most obvious possibilities on the state bench. 

Happy fishing guys.

J. Peter Mulhern is a lawyer in the Washington, DC area.