On the Supreme Court nomination

OK — I know everyone is blogging about this today, including many with much more expertise on the subject. I’ll attempt to be brief.

First, please, please, everyone try to have an open mind [but George, that's impossible!]

That a number of the current Justices are viewed as having been “stealth” nominees in not voting as conservatively as expected may be attributable to the power of the position and internal decisional dynamics of the Court.

I’d say a well qualified nominee is one who is capable of thinking carefully about the issues, thoughtfully weighing the arguments on both sides and the implications of each decision, interacting productively with the other Justices, seeking consensus whenever possible, and favoring opinions that avoid broad dicta the Court might later come to regret.

Michael Fox at Jottings, in his post “Now Let the Feeding Begin …,” notes, among other things, that nominee John Roberts “represented Toyota in Toyota Motor Manufacturing Inc. v. Williams, one of the major cases viewed as being a limiting decision interpreting the Americans with Disabilities Act.”

This is a perfect example of one of the limitations of trying to predict how a nominee might vote as a Justice. In the Toyota case, he was an advocate. He took the position that was in the best interest of his client, as he was obligated to do as a lawyer. This was not necessarily the position he personally thought reflected the best interpretation of the law.

The same is true of the many cases he argued for the government before the Supreme Court. I hope to hear him being quizzed about those cases and responding and that the position he took does not reflect his personal views. Smart move, therefore, to nominate someone with a relatively short paper trail as a judge, but excellent credentials as an advocate, including before the Supreme Court.

Finally, everyone assumes that introducing a new Justice who would vote differently than Justice O’Connor did will always mean that a 5-4 case would be decided 5-4 the other way. I dissent.

I believe this overlooks the possibility that at least one Justice sometimes puts himself or herself in the dissenting group of four to add strength to an important dissent while actually being satisfied with the majority outcome. True, a Justice could write a concurrence in such a situation, but may have reasons for joining a dissent and leaving the outcome 5-4.

With a different composition of the Court, such a Justice may emerge as the new stealth swing voter on certain issues, switching sides to stand with the remaining four of the five-vote majority that had included Justice O’Connor, but had not included this swing Justice himself or herself.