ďPicking the Contenders,Ē

by Eugene Volokh,

msnbc.com, June 1, 2001




As the Supreme Court winds ups its term, conventional wisdom says that because of the elderly makeup of the court, President Bush will probably have two or three seats to fill as justices retire in the coming months and years.Whom should he pick?


A President must consider many criteria when choosing justices: political compatibility with his own legal and constitutional vision as well as confirmability by a Democratically-led Senate.Age is a factor too -- recent presidents appointed younger justices to lengthen the presidentís influence on the court.Race, sex, religion and ethnicity are also factors: Like it or not, judicial appointments are political actions, and are therefore ways for the presidentís party to broaden its appeal to important constituencies.And, of course, judicial temperament and intellectual qualities canít hurt, either.


Iím a professor, not a politico, so Iíd like to offer an unusual short list.Iíll set aside most of these considerations, important as they are.Instead, Iíve compiled a list of potential conservative nominees who are distinguished largely by their intellectual achievements -- of course, understanding that intellectual matters alone canít be the end of the story.




Here then is a list of five brilliant potential justices:


Judge Richard Posner.Posner, a judge on the Seventh Circuit Court of Appeals, is widely seen as the intellectual titan of the federal bench.While a University of Chicago professor, he co-founded the law and economics movement, a discipline that analyzes the law using the tools of economics.The movementís followers now number hundreds of scholars from the left, right and center.


Since becoming a judge, he has continued to teach and to write at a prodigious pace -- about a book each year, on topics as varied as sex and the law, the Clinton impeachment and the 2000 election.At the same time, he writes more judicial opinions than any other appellate judge: His productivity is legendary -- generating a respect bordering on awe among professors and judges.


Posnerís views are controversial, though well within the mainstream.But thereís no controversy about the magnitude of his intellect.


Judge Alex Kozinski.Kozinski is a judge on the Ninth Circuit Court of Appeals, and my former boss.His life is a classic American success story: He emigrated from his native Romania when he was 12, was appointed to a federal trial court by age 32 and then promoted to the court of appeals at 35.This makes him the youngest federal court of appeals judge since William Howard Taft in 1892; Taft, too, ended up on the Supreme Court, though after a detour as president.


Kozinski is a mainstream conservative, but with a distinct libertarian streak, especially on free speech and on search and seizure questions.Some speculate that his memory of communist Romania sensitized him to the dangers of government power -- a healthy sensitivity for a judge and a justice.Kozinskiís intellect, gift for clear writing and sense of humor make him one of the nationís most prominent federal judges.


Professor Charles Fried.Fried, who also came to America as a child from Eastern Europe (his family fled from the Nazis), has been a professor at Harvard Law School and a leading conservative and libertarian scholar since the early 1960s.He served for four years as solicitor general -- the person in charge of the federal governmentís Supreme Court litigation -- and then for five years as a justice of Massachusettsí highest state court.


Fried, alongside Posner, is undoubtedly one of the top conservative legal intellectuals of his generation.


Professor Michael McConnell.McConnell taught for 12 years at the University of Chicago, but recently moved to the University of Utah.He is also one of the top conservative constitutional scholars of his generation, which is the generation after Friedís.McConnell made a name for himself as an eloquent supporter of a centrist conservative position on the Constitutionís religion clauses.He has long condemned government coercion of religion, concluding, for instance, that classroom prayer in public schools is unconstitutional.But he also strongly opposes governmental discrimination against religion.


Some justices say the government must exclude religious institutions from generally available benefits programs, simply because of the programsí religiosity.McConnell has persuasively argued that such discrimination constitutes hostility to religion and not the constitutionally-mandated neutrality.


He has just been nominated to be a federal court of appeals judge, and heíll be great at that job; but heíd be terrific as a justice, too.


Professor William Van Alstyne.Finally, if President Bush wants to nominate someone in the center -- not to say that he has any obligation to do so -- rather than on the right, the obvious choice is Duke law schoolís Van Alstyne.


The professor has strong liberal credentials: He was on the ACLU board of directors during the 1970s.He was a leading supporter of the Equal Rights Amendment.And he has staunchly defended free speech and academic freedom, whether they are being attacked by the left or right.


However, he was also one of the first constitutional scholars to speak out against racial preferences.He takes seriously the Constitutionís division of power between Congress and the states.And he has written eloquently in support of the right to keep and bear arms.Van Alstyne is a constitutional maverick, who calls them as he sees them, and who has won the respect, even if not the agreement, of liberals and conservatives alike.




In terms of politics, this is not the savviest of lists.Three of the candidates are in their 60s; the president might prefer justices who are likely to stay on the court longer.All of these contenders happen to be white men -- maybe not a politically optimal choice.They are mainly constitutional scholars, probably just because thatís the group of people I know best.And there are only five, chosen from a wide pool of first-rate possibilities.


But any of these five would be tremendous additions to the court, and important contributions to George W. Bushís legacy -- justices who would be remembered for decades as first-rate minds and first-rate judges.