Klarman: Obama, Clinton Justices Would Have High Legal Credentials

Michael Klarman
James Monroe Professor of Law, University of Virginia
Author of "Unfinished Business: Racial Equality in American History"

(1) Broadly speaking, I would expect either BO [Obama] or HC [Clinton] to appoint similar people to the Court. Both probably would appoint people broadly similar to Ginsburg or Breyer. The days of genuine left-leaning appointments like Douglas, Fortas, Goldberg, or Marshall are long behind us and not likely to return any time soon, unless we see a currently hard-to-predict leftward shift in our politics. In addition, BO and HC are both likely to appoint candidates not only with moderately liberal views but also with fancy legal credentials. Given that both attended the nation's most prestigious law schools—Harvard and Yale—it's unlikely either would think a candidate suitable who did not also have the highest legal credentials (i.e., no Harriet Miers). That said, HC would, I think, almost certainly make a woman her first appointment. I think Obama likely would as well, but I think the probability is even higher for HC. The first woman president is sure to think the U.S. Supreme Court ought to have more than one woman justice.

(2) I have no idea whom McCain would be likely to appoint. He speaks the rhetoric of so-called "strict constructionists." He was part of the Gang of 14 that compromised over filibusters of judicial nominees. His views on campaign finance reform would suggest he isn't likely to want to appoint people like Scalia and Thomas who think all of it is unconstitutional. And his views on many other issues—e.g., climate change, torture, the gay marriage amendment—are sufficiently different from his party's right-wing base that I think he'd have some doubts about appointing hard-line conservatives. But I suppose this depends entirely on how dependent he feels he is on the right-wing base for his election, assuming he wins. I assume there are still some moderate Republican judges out there, of the John Paul Stevens, Arlin Adams, Harry Blackman-type. But they are probably harder to find today than they were 20-30 years ago, given the Bush administration's commitment to appointing Federalist Society hardliners.

(3) The stakes are high on both sides. Right now, as you know, the Court is deeply divided. There is an enormous gap between the four conservatives and the four liberals. Kennedy determines the outcome in every case. In 21, 5-4 decisions last term, 18 of which divided on predictable ideological lines, AK [Kennedy] was in the majority in every decision. And because the gap between the right and left is so wide, he has tremendous discretion in where to draw the line splitting the difference.

Read the rest of Scoop08's High Court Q&A Series:
Part 1: The High Court Q&A Series
Part 2: Klarman: Obama, Clinton Justices Would Have High Legal Credentials
Part 3: Stakes Much Higher for Dems, Says Lazarus
Part 4: Zywicki: Will McCain Make a Campaign Finance Reform Litmus Test?
Part 5: Traditional Liberal, Conservative Labels Less Helpful, Says Purcell
Part 6: Tushnet: One Appointment Could Change Court Dramatically
Part 7: Court Will Stay Far to Right, Says Lessig