To: Harriet Miers, White House Counsel
From: Article III Groupie
Date: March 10, 2005
Re: Possible Supreme Court Nominees
Over the past few months, speculation concerning possible vacancies on the U.S. Supreme Court has reached a fever pitch. News organizations have reported that you and your colleagues are developing a shortlist of potential nominees to the Court. As the blogress responsible for Underneath Their Robes, the leading blawg of federal judicial gossip, here are my unsolicited thoughts on the subject.
The judicial appointments process is more politicized than it has ever been. The Senate Democrats are playing hardball, filibustering circuit court nominees deemed unpalatable by core Democratic constituencies. As a result, President Bush must view judicial appointments in pragmatic political terms as well. Traditional factors for selecting nominees, such as qualifications and jurisprudence, must be balanced against more practical considerations.
This is especially true for the Supreme Court. Due to the Court's high visibility, many Americans want the Court to reflect the diversity of the nation as a whole. Thus, when it comes to Supreme Court nominees, two critical considerations are (1) demographics, i.e., will selecting this nominee advance the standing of the Republican Party within an electorally desirable segment of the population; and (2) confirmability, i.e., can this nominee get past the Senate.
The judges reportedly under serious consideration for a spot on the Court are all conservative white males: J. Michael Luttig (pictured at left), J. Harvie Wilkinson, Michael McConnell, judicial hottie John Roberts, and Sam Alito.* They are demographically unappealing, and their confirmability is questionable. Because these judges are all among "the usual suspects," liberal interest groups have already compiled detailed dossiers on them. Should any of these judges be nominated to the Court, these groups will immediately pounce, denouncing the nominee as a "right-wing ideologue" who is "out of the judicial mainstream."
To catch these groups flat-footed, the White House needs to think "outside the box" when it comes to the Court. The universe of possible nominees must be expanded beyond white male judges who belong to the Federalist Society. Notably, Article III of the Constitution, which governs the judicial branch, contains no requirement that Supreme Court justices have prior judicial experience. In fact, the Constitution does not even require justices to have law degrees. So here are three demographically compelling, easily confirmable nominees, whose nomination to the Court would definitely take the Democrats by surprise:
1. Jennifer Lopez. After the welcome demise of "Bennifer," followed by her marriage to Marc Anthony, J. Lo's stock has skyrocketed. Nominating J. Lo to the Court would solidify support for the Republican Party among Latinos, a rapidly growing community that is crucial to the party's continued electoral success.
J. Lo's confirmation is guaranteed. As soon as the members of the Senate Judiciary Committee imagine La Lopez in a gravity-defying, Versace black robe, she will be voted out of committee faster than she divorced Cris Judd. And who could resist the prospect of a case parenthetical reading, "Lo, J., dissenting"?
2. Oprah Winfrey. Much Supreme Court speculation has focused on Janice Rogers Brown of the California Supreme Court, who would become the first African-American woman ever to serve as a justice if appointed to the U.S. Supreme Court. But whether she could win confirmation is doubtful, given her reputation as a right-wing judicial diva.
If President Bush would like to make history by appointing an African-American woman to the Supreme Court, why not nominate Oprah Winfrey? Oprah would bring a new level of empathy and emotional accessibility to the Court, frequently criticized as a distant and impersonal institution. With Oprah on the bench, litigants would start crying, hugging, and reconciling with each other in the middle of oral argument. And Oprah would have no trouble winning confirmation -- after giving every senator a new car!
3. Janet Jackson's Right Breast. The Constitution does not require Supreme Court justices to be judges, lawyers, or even complete human beings. If President Bush would like to place a body part on the Court, he would be hard-pressed to find a more deserving candidate than Janet Jackson's right breast. Jackson's breast would bring a wealth of relevant experience to the bench. Some of the most important cases decided by the Court concern the First Amendment, free speech, and indecency law. No one has more intimate familiarity with these issues than the Jacksonian mammary, which found itself at the heart of national controversy after exposing itself during the 2004 Super Bowl halftime show.
There is a longstanding tradition within American politics of presidents using their appointment power to reward loyal allies who have helped them win office. And as Frank Rich of the New York Times recently observed, "on November 2nd, Ms. Jackson's breast pulled off its greatest coup of all: the re-election of President Bush."
So shouldn't the president "show a little love" to Janet Jackson's right breast, by nominating it to the Court? In terms of Supreme Court appointments, one could do a lot worse...
* And now, a lengthy digression concerning the order of judges on the shortlist. It appears that Judge Alito may be the dark horse contender. After breathlessly reciting the names of Judges Luttig, Wilkinson, McConnell, and Roberts, the Times mentions Judge Alito as an afterthought: "Another possible candidate is Judge Samuel A. Alito of the United States Court of Appeals for the Third Circuit, who sits in Newark."
Now, Judge Alito is not exactly chopped liver. As a Princeton and Yale Law grad, an alum of the Solicitor General's office, and a former U.S. Attorney, clearly he's no slouch. He is a highly respected appeals court judge, and he has been on the bench for almost 15 years -- much longer than either Judge McConnell or Judge Roberts.
But consider this fact: the four judges higher than Alito on the short-list are all members of the Elect. Luttig clerked for Burger (via then-Judge Scalia of the D.C. Circuit), Wilkinson clerked for Powell, McConnell clerked for Brennan (an ideologically interesting pairing), and Roberts clerked for Rehnquist (then an associate justice).
So what can we learn from Judge Alito's B-list status? It just goes to show that no matter what you accomplish within the law, the badge of inferiority known as Great Unwashed status will haunt you for your entire legal career. To all of you 3Ls and feeder judge clerks who are stressing out over whether you'll land a Supreme Court clerkship, just think: if you fail in your quest, you will suffer the consequences for the rest of your professional life.