My Two Cents – Nomination Time


Shame on me for thinking that it would take longer after the death of a Supreme Court Justice to start speculating on his successor! What was I thinking? I’m missing a news cycle here!

As you may or may not know (if you don’t know, seriously, read a paper), Justice Antonin Scalia passed away just outside of Marfa this weekend. Whether you agreed or disagreed with Justice Scalia, you have to admit that he was a titan of jurisprudence – and was always one of the most entertaining reads in law.

I just read Above The Law’s gambler’s guide for potential nominees to his seat, and I noticed that there are at least two potential candidates not listed.

Richard Posner

This is, hands down, my favorite… First of all, Judge Posner is a long-sitting appellate judge whose impact on legal theory is arguably of similar import on a regional scale to Justice Scalia’s. Also, Judge Posner is every bit as entertaining to read.

Second, his decision-making is well-known, and consistent. It is unlikely that he will shift tacks once sworn in as Justice. That makes his jurisprudence far more predictable, and thus, perhaps, palatable, for the person nominating him. It was this consistency that may have led to several well-known clashes with Justice Scalia himself.

Finally, he is (relatively) conservative. With pundits and Senators alike already saying that they will block any candidate that President Obama names, I think it would be hilarious political theater to watch Republican Senators tie themselves in knots trying to figure out why they will not vote for a conservative candidate. In my opinion, this would be a master stroke by the President (I think that this would be hilarious in a non-partisan way, please remember, The Wolf Camp is politically agnostic).

Joe Biden

Before he was Vice-President Biden, Joe Biden was Senator Biden. Before he was Senator Biden, he was Joe Biden, Esq. after graduating from Syracuse University with his Juris Doctor.

Joe Biden is the perfect candidate for a Democratic president. He is staunchly liberal, meaning that his interpretations will be, once again, predictable after he takes his seat. What is more, again for a Democratic president, his decision-making would be more palatable.

Next, his long tenure in the Senate means that more than one Republican Senator will have a personal relationship with him – perhaps even owing a favor or two to his or her former colleague. This will make it either personally or professionally uncomfortable for a number of Republicans to vote against Biden’s nomination.

Finally, he ticks the box that Scalia himself said needed to be addressed on the Court: He didn’t attend an Ivy League school to get his education. He would be the only non-Ivy League person on the Court!

To top it off, Biden is well-liked by a large swath of the electorate – as evidenced by the rumors that he would pursue his own presidential campaign last year. If President Obama wants to make Senate elections difficult in the coming year for incumbent Republicans, he could do a lot worse than nominating someone who is popular across the country – and a person who also possesses experience in all three branches of the government.

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