This Post Raises an Interesting Question

The Decembrist raises an interesting question: Why does the short list for Rehnquist's seat not include any "political" figures, but only court of appeals judges and (former) law professors?

This question deserves a longer answer, but I'll try to give it a brief one, largely speculative. The answer is largely political, in my view. With the confirmation fights of the Nixon and Reagan presidencies, a fundamental transformation took place in the confirmation process. Although opposition senators could no longer take on nominees for overtly political reasons (this is a hypothesis), the ground shifted to a discussion of a nominee's "qualifications." So an easy way to short-circuit a nominee was to argue that s/he had no "judicial experience." Of course, students of the Court know that many of the best justices never had judicial experience before their nomination; the idea that one has to have been a judge somewhere else before the Supreme Court should be a non-starter. But this becomes a "lack of qualification" with the shift to qualifications. So presidents look to the bench to prevent this argument from being made in the first place.

Moreover, political figures are more likely to have those "ethical problems" that serve as a disqualification than are judges (again, this is really a hypothesis). This is not to say that judges might not have some of these problems; but it seems that a judge who was formerly a law professor should be cleaner, all else being equal, than a senator. Amd senators will have a long record of votes, speeches, etc., whereas law professors and judges, even when they take controversial positions, do so in a much lower profile setting. (Who really reads law reviews? Court of appeals opinions?) The kicker is that the line between taking controversial opinions and lacking qualifications is blurred. Think of Bork's nomination, for example. (Now Bork seems like a bad example--he was a judge and former law prof--but remember that he first came to public attention during the Saturday Night Massacre during Watergate. Bork is really a hybrid case.) So too high profile, too controversial, and you're out of the "mainstream." Much easier if you have a Senate record--not a judicial example, but think how the Bush campaign used John Kerry's Senate record against him.

Finally, people in the executive branch formulating short lists may think like this: Judges on the federal courts of appeals have already been confirmed once, so if the Senate had objections to them they would have already been raised. Not good logic, but I think it's at least a rhetorical point to raise--the Bush administration has raised it both about Bolton and Chertoff, btw.

That's a short answer.

Here's a hypothetical. Bush decides against the profs and judges options and nominates Orrin Hatch to the Supreme Court. Now every speech, vote, and campaign contribution in Hatch's past becomes fodder for opponents of the administration. (One could say--but the Senate will defer to one of its own. Let's omit that for right now.)

Or Bush can nominate Judge Alito from the Third Circuit. (I don't think that's likely, but I have my own (recent publication) reasons for wanting Alito elevated.) Now, Alito and Hatch are probably not that different in terms of policy preferences. But who has ever heard of Alito? Compared to Hatch, he's the man in the moon. The case against Hatch (or Gonzalez, or Ashcroft, or maybe even Chertoff) is so much easier to cast in terms of qualifications and public opinion. Why pick Hatch when the president can get the same thing with Alito?


Update: I don't mean to suggest that I think that Rehnquist will step down soon. My thinking on this may seem a little strange, but my guess is Rehnquist holds on at least another year. Here's why: If he didn't step down when he was in chemo, when he couldn't participate, couldn't function, why would he step down now that his condition is improved? To enjoy his retirement? Plus, consider that WHR is within two years of the all-time service record (WOD) on the Court. He may have a mind to make a go for it, now that he has lived this long.

We'll know if I'm wrong in a couple weeks.

Second Update: This recent Emily Bazelon piece discusses the Douglas scenario and WHR's physical condition. Worth a glance.