October 20, 2005
The Next Nominee
Posted by Joe Miller

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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