Soon after Justice Breyer had announced his retirement, my suggestion was that President Biden choose a “Roberts whisperer”, a lawyer who is willing to collaborate with colleagues in order to temper court conservatism. Biden’s paradox is that a less-liberal nominee for the court will lead to fewer conservative judges. The court can be kept closer to its center if it has a more middle-of the-road justice.
Justice Jackson will be the bridge-builder?
David Lat received a suggestion from Justice Leandra Kruger that Justice Jackson would not be able to fill the role.
Judge Jackson is a great choice if this Court were 5-4 in favor of liberals. She would be a powerful voice on the left—à la Justice Sonia Sotomayor, whom many progressives regard as “the conscience of the Court”—and by staking out the far left, she might tug the entire Court leftward and make the other liberals look more moderate.
However, we do not have a Court with a 5-4 or 6-3 rating in favor of liberals. We have instead a 6-3 Court that is dominated by Conservatism. This calls for a completely different kind of justice with a totally different ideologic bent.
If you are in that minority, don’t look for an ideologic bomb-thrower. Instead, seek out a bridge-builder. She is not a progressive or hard-core Liberal. Her left-wing views could cause her to lose her conservative colleagues.
Instead, you want a judge who understands conservatives and has respect from conservatives. A judge should be able to persuade conservatives by her logic, her persuasive writing and her charm. Based on her track record at the California Supreme Court, where she has demonstrated her talent for building consensus and coalitions, Justice Kruger is the one that you want.
It is important to find a judge that understands all the strategic aspects of being a member of a large appellate court. On occasion, and especially when the court is dominated by the other side, this might require “damage control”—e.g., cobbling together a narrow majority for a position that you don’t love, but one that’s better than the alternative. Justice Kruger also understands this, as for five of the seven years she served on the California Supreme Court, Republican appointees outnumbered Democratic, 4-3.
Could Judge Jackson and Judge Childs also be great at this? Sure. But Justice Kruger has already demonstrated this ability—you don’t need to speculate—and she has far more experience and practice at it. Justice Kruger’s experience on a seven member appellate court has enabled her to acquire the skills she needs at SCOTUS. Justice Kruger was often outnumbered during her tenure.
Judge Jackson (who has only been an appellate court judge for less then a year) and Judge Childs (who has never been one), have not had this opportunity to learn these skills. And the Supreme Court—at least for a liberal justice at this critical point in our nation’s history, with abortion, gun control, and affirmative action on the line—is no place for learning on the job.
Justice Breyer was able to get the Chief Justice moderated. Justice Jackson?