Yesterday President Biden gave some insights into what type of Justice he wants to see:
I’m not trying to make an ideological decision here. I am looking for someone to succeed Judge Breyer, one who has the same level of ability as Judge Breyer, but with an open-minded mind and who interprets the Constitution in a manner that’s consistent with the main interpretation.
As Clarence Thomas did three decades before, I don’t know what Biden is talking.
Biden in 1991: “There’s a fervent and aggressive school of thought that wishes to see natural law further inform the constitution… You know and I know what we’re talking about”
Clarence Thomas says: I had no idea about what he was saying”
— ᴊᴏᴇ (@traddingtonbear) May 19, 2020
Is there a “mainstream interpretation” of the Constitution? And, perhaps most importantly, how would it be to appoint someone who is like Justice Breyer’s? Justice Breyer is an amazing man. However, his jurisprudence seems inconsistent. It’s difficult to understand his views, which are heavy with indeterminate balancing test, and they can be very confusing. His flexible frameworks are not able to be extended to other fact patterns. Justice Breyer actually favors a “mainstream” interpretation of the Constitution, whatever it may be. All these uncertainties are a problem. shouldBiden would like to appoint another Justice Breyer. Are they the right choice at this point? Do you think President Biden should look at a completely different model?
Perhaps President Biden could look at Justice Sotomayor as someone who is a progressive rock singer. Justice Sotomayor doesn’t support a traditional reading of Constitution. Instead, she advocates for progressive readings. She speaks on behalf of a whole generation that is not able to speak for themselves in the face of the conservative majority. Biden shouldn’t aim high and name another liberal lion.
Maybe President Biden should think about Justice Kagan. Justice Kagan doesn’t have the status of a rock star. The majority of law students would not be able pick her from a line-up. Her greatest strength, at least in the past, was her ability to compromise with Court conservatives. Kagan is a successful defender of the Court’s rightward drift. Kagan is not given enough credit but she has prevented many disasters for the Left. Why shouldn’t Biden favor another Kagan to help bridge compromises–what I called a “Roberts whisperer”–especially now that Justice Breyer is gone?
Maybe President Biden should nominate someone similar to Justice Scalia. This argument is made by Aziz Huq at Politico
Just because a justice is able to wheel and deal behind closed doors, it doesn’t mean that they are unable to exercise any influence. Even without having the votes to win, a jurist can still make a difference and help move the nation. The proof of this — and a model for a powerful Biden pick — is that least liberal of judicial icons, Antonin Scalia.
Reagan’s appointee showed that you don’t need to control a majority of court members to have a large and lasting influence on American law. What’s needed is a refusal to compromise or hide one’s principles — a crucial lesson for Biden and progressives if they hope to change the direction of the court over the long term.
Biden might favor someone who can challenge current norms and writes for the next generation. You should remember that FedSoc was still a new concept when Justice Scalia entered the courtroom. Scalia rode that wave for 30 years which has largely led us to this moment. Scalia is not a fair comparison. Maybe the Biden nomination can launch a new movement that will produce results in just a few decades.
It isn’t obvious which type of Justice Biden should choose.