The answer: of course not! Dear readers, you must understand: a period of Supreme Court nomination speculation* is the federal judicial equivalent of the run-up to Oscars night. The contenders are everywhere, and there's no such thing as overexposure!
Consider the relentless media campaign mounted by Hilary Swank in the weeks leading up to the Academy Awards. She appeared on numerous televsion shows, including 60 Minutes, and graced multiple magazine covers. Did being in the public eye so much hurt her in any way? Absolutely not! (Now, is A3G saying that Judge Sam Alito is like Hilary Swank in a black robe? Well, no -- that distinction belongs to Judge J. Michael Luttig, as explained below.)
As many of you have surely noticed, the race to One First Street bears an uncanny resemblance to the Best Actress race at this year's Oscars. Consider the common archetypes populating both competitions:
The Young Frontrunner (J. Michael Luttig, Hilary Swank): Despite being incredibly youthful, Luttig and Swank are the ones to beat. Their gifts are undeniable; brilliance like theirs comes along once in a generation. Perhaps just as importantly, both are masterful campaigners. Swank was a one-woman publicity machine in the weeks leading up to the Oscars, running a highly effective campaign that was aggressive without being off-putting. And Luttig, while at the DOJ, was the genius tactician behind Justice Thomas's hard-fought confirmation battle.
Now, some people resent Luttig and Swank for their phenomenal success. Some find the inevitability of their victory to be painfully boring. But can "player-haters" prevent the Young Frontrunners from triumphing in the end? Probably not. Swank ran away with the Oscar this year, even though she won an Oscar not that long ago for much stronger work in Boys Don't Cry. So bet against Judge Luttig at your peril!
The Aging Divo/Diva (J. Harvie Wilkinson, Annette Bening): Talented but coming on in years, the Aging Divo/Diva has done battle with the Young Frontrunner before. See, e.g., Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); the 2000 Oscars. Can Judge Wilkinson succeed where Annette Bening failed?
Both Wilkinson (60) and Bening (46) repeatedly emphasize that they remain physically vigorous, despite being older than their leading competitors. Judge Wilkinson likes people to know that he can keep up with his clerks when they go running, just as Bening likes people to know that she can keep up with Warren Beatty in bed. But when it comes to picking Supreme Court justices, presidents can be as youth-obsessed as Hollywood casting directors. Judge Wilkinson has his work cut out for him...
The Highly Respected Journeyman (Samuel A. Alito, Jr., Kate Winslet): Both Alito and Winslet have been on the scene for a while, and they are justifiably held in high regard. For many years, they have been working hard and turning in fine performances. They are personally pleasant, and they are exceedingly well-liked.
But they face the same problem: How can they steal the momentum from their flashier, more aggressive colleagues? Despite his misleading nickname of "Scalito," the unassuming Judge Alito isn't nearly as forceful a personality as Justice Scalia. How can Judge Alito avoid becoming breakfast for Judge Luttig's pack of hungry wolves -- the powerful network of well-placed Luttigators, who all share a cult-like devotion to the aggrandizement of their former boss?
The Deserving Longshot (Michael W. McConnell, Imelda Staunton): According to the people who saw Vera Drake (all 27 of us), Imelda Staunton's remarkable performance in that film was truly Oscar-worthy. Similarly, Judge McConnell, one of the finest legal minds of our time, fully deserves a seat on the Supreme Court.**
But their chances of victory are not high, although for diametrically opposed reasons. Staunton's problem was obscurity: people didn't know enough about her ("Imelda who? Wasn't she that lady with all the shoes?"). McConnell's problem is the exact opposite: people know too much about him, thanks to almost two decades as a prolific, conservative legal scholar. A love letter signed by a bunch of liberal law professors -- in a transparent attempt to pave the way for their own judicial nominations, under President Hillary -- helped him land a seat on the Tenth Circuit. But it might not be enough to get him to One First Street. After combing through Judge McConnell's academic writings, all the major liberal interest groups have him in their cross-hairs.
The Newcomer Hottie (John G. Roberts, Jr., Catalina Sandino Moreno): The "Newcomer Hottie" moniker says it all. Just like the lovely Miss Moreno, Judge Roberts is an undisputed hottie who is relatively new on the scene, appointed less than two years ago to the storied D.C. Circuit ("[On Constitution Avenue] did Kubla Khan / A stately pleasure dome decree...").
As A3G has previously opined, Judge Roberts has a pretty good shot at the Court. His newcomer status could actually help his candidacy: he has less of a paper trail than some of the other potential nominees. He has been a well-behaved circuit judge, and he hasn't issued any crazy or controversial opinions during his short time on the bench. (Sure, he did write the opinion in the infamous "french fry case," but as a legal matter it was obviously the right call.)
It's possible, though, that Judge Roberts could face the same fate that Moreno did: he might lose this time around to someone with more experience (e.g., Judge Luttig). But just like Moreno, Judge Roberts is talented enough, and youthful enough, to be a strong contender in the future. Time is on his side.
So what can we conclude after comparing the Supreme Court shortlisters and the 2005 Best Actress nominees? Well, Judge Luttig's nomination is probably as inevitable as Hilary Swank's triumph. An upset victory by an attractive newcomer, Judge Roberts, is the next most likely outcome. Remember how bizarro hottie Adrien Brody came out of nowhere to defeat a slew of more experienced actors to win the 2003 Best Actor race?
Of course, until President Bush holds that fateful press conference, anything is possible. Judges Wilkinson, Alito and McConnell are still in the running, and they should have acceptance speeches prepared just in case. A3G has some advice for them: Don't make the Sarah Jessica Parker/Hilary Swank mistake; remember to thank your wives! And while you're at it, how about a shout-out to your loyal law clerks too?
* A3G is engaging in Supreme Court speculation primarily for entertainment purposes. The extensive media coverage and interest group agitation over the identity of our next Supreme Court justice should not obscure one fundamental fact: at the current time, the Supreme Court is like a motel with a big NO VACANCY sign outside.
** The comparison between Judge McConnell and Imelda Staunton isn't perfect. Why? He has better fashion sense!
At the Oscars, Staunton was widely condemned for her disastrous dress. One commentator said it made her "look like she belonged in Oz, not just because of the emerald hue of her dress, but because of the cut; the high waist and mid-calf length skirt was not at all flattering." Another critic said her gown "ma[de] her look bowlegged, and like a troll, not to mention the netting she is dragging along behind her! Hello, you are going to the Oscars, you are not going fishing!"
In contrast, Judge McConnell's attire at the Federalist Society National Lawyers Convention earned him unanimous praise. The following comment is representative: "Who knew that a former professor could dress so well?" More details will follow in the promised sequel to this Robing Room Report, which A3G will hopefully publish before the 2005 convention...