The road ahead for Ms. Miers gets rockier each day. Sen. Specter's calling the White House's performance "chaotic" is wild understatement.
Gordon, Larry Ribstein, and others have already offered compelling remarks on why Ms. Miers is not a strong nominee for those who, like me, want to see a nominee with a strong handle on business law questions. Nor is she the nominee for someone who, like me, thinks that the lack of a justice with recent experience presiding over trials weakens the court's performance on many litigation questions.
I don't yet rate the likelihood that the Miers nomination will fail at more than 25%. Still, it is more likely to fail than any nomination since the Nixon era. As a result, I thought it might be constructive to start talking about who we think the next nominee should be if what we care about is business and litigation questions. (If you think, as Dahlia Lithwick argues today in an LA Times op-ed, that the politics is all about Roe v. Wade, and unalterably so, this discussion won't be too interesting.)
My first two names:
1. U.S. District Judge Ronald M. Whyte, from the Northern District of California (San Jose). He has served on the district court since 1992, after the first Pres. Bush successfully nominated him. He is 62 years old (just a little bit older than Ms. Miers). Because he presides over many civil and criminal cases involving high tech disputes in the San Jose area, he could bring strengths to the Court that would serve it well over the next two decades. Finally, my personal interactions with Judge Whyte (over a four-day period when he was Lewis & Clark Law School's Distinguished I.P. Visitor) were immensely enjoyable, because he is gracious and good-humored.
2. Chancellor William B. Chandler, of the Delaware Court of Chancery. He was appointed Chancellor in 1997, after serving as Vice Chancellor starting in 1989. The governor who appointed him Chancellor, Thomas Carper, is now Delaware's junior senator. Sen. Carper is a Democrat, and so (presumably) is Chancellor Chandler. And this is exactly why Chancellor Chandler would be such a brilliant appointment. His opinion in the recent Disney case shows he is a careful and thoughtful jurist with a deep understanding of the way the law structures the market. And, as a successful Delaware judge, he would almost surely have the rapid and strong support of Sen. Carper and ... wait for it ... Sen. Joseph Biden, Delaware's senior senator and a central player on the Judiciary Committee. With the support of these two Democrats to start with, the disappointment of the hard right would likely not spoil the nomination (as it threatens to do with Ms. Miers).
Whaddya think, Gordon?
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1. Posted by geoff manne on October 20, 2005 @ 11:56 | Permalink
I know you said you were talking about whom the nominee should be, rather than will be, but c'mon -- if past history is any guide (and it surely is here), these two are so far off Bush's list that they might as well be members of the French judiciary. I regret as much as you do that the Supreme Court is doomed not to have any real business expertise on it for the foreseeable future, but this is just wishful thinking of the sort you would normally chide me for!
2. Posted by guest on October 20, 2005 @ 12:33 | Permalink
More on Judge Whyte, who's being championed for the Federal Circuit and who's interested in that slot.
http://patentlaw.typepad.com/patent/2005/07/choosing_the_ne.html
3. Posted by Kate Litvak on October 20, 2005 @ 16:09 | Permalink
The best combination of business law expertise and con law expertise is Frank Easterbrook, the father of modern corporate law scholarship and the former president of the American Law and Economics Association. I am not holding my breath, though...
4. Posted by Gordon Smith on October 20, 2005 @ 17:32 | Permalink
Joe,
I have very mixed feelings about selecting someone for their business expertise. On the one hand, the Court needs help when it decides business law cases. On the other hand, it might decide to take more business cases, and having the Supreme Court muck around with the federal securities laws is always scary.
In that spirit, I will pass on the invitation to opine on these two judges as potential Supreme Court nominees. I know Bill Chandler, and I like him very much, but I don't know Judge Whyte.
5. Posted by greg on October 21, 2005 @ 8:18 | Permalink
Easterbrook might - might - have business and con law expertise, but he wouldn't be on my list of nominees.
First of all, he's an asshole (sorry for the language). If you've ever sat in court when he's presiding (as I have), you'll see him belittle attorneys to the point that you actually feel bad for the attorney. Sure, some attorneys deserve it, but he seems to enjoy his position of power, and no one should be talked down to the way that Easterbrook talks down to people in his court. Plus, there's something really annoying in how he plays around on his laptop while oral arguments are going on.
Second, Easterbrook blew it in ProCD v. Zeidenberg. There, ProCD claimed its license agreements became effective as soon as the shrinkwrap on the software was torn. In other words, you're bound by words you have had no opportunity to read. Easterbrook agreed, using logic that several courts have diagreed with. He also blew it in Hill v. Gateway 2000, claiming that an arbitration clause was effective even before the consumer had knowledge of such a clause.
Finally, Easterbrook is a protege of his fellow U of C professor, Richard Posner. While Posner has his legions of followers, there are many who disagree with his economic view of law.
I'd have to agree with Gordon Smith. Given the Court's record on Securities Law cases, it might be a good thing that the justices lack business law expertise.
6. Posted by Anonymous on October 24, 2005 @ 17:50 | Permalink
Chancellor Chandler is a Republican.
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