The Election and the Supreme Court—Possible Vacancies Ahead?

Right at this moment, the Supreme Court is not an issue in the campaign, although partisans on both sides will no doubt keep trying to make it one as we get closer to November. 

One reason the court is not an issue right now is that the chief justice has done a superb job of lowering the court’s profile. It’s hard to get the nation worked up over disputed interpretations of the Employment Retirement Income Security Act, for example. The intensity of the gun battle should not obscure the winning Roberts combination of taking fewer cases overall, taking fewer controversial cases in particular, and encouraging the issue of narrowly drawn opinions. That is all to the good, even if it makes it more difficult for Sen. McCain to stoke up an intellectually tired conservative base by raising the hoary specter of judicial activism. He hasn’t been successful thus far, in part because activism is not nearly the problem that he describes it to be. 

Sen. Obama is both more perplexing and intriguing on the judicial nomination front. Perplexing, because he voted against (mistakenly, in my judgment) two of the most talented jurists on the bench, John Roberts and Sam Alito, even as he conceded they had the intelligence, capability, and proper judicial temperament. Intriguing, because Obama’s stated basis of opposition was a suspicion that these nominees were not sufficiently empathetic with the needs of the average person. Sen. Obama himself, of course, has great empathy for those who are often overlooked by the political process, and it will be fascinating to see how that attractive quality can be translated into identifiable and appropriate selection criteria for the men and women he would want serving on the bench.

It is widely speculated that the next nominee of either party will be a female, and that is likely, given the persistent reminders of Justice O’Connor (not to mention speculations about Sen. Clinton). But the inescapable consequences of the actuarial tables—as well as the personal desires of some of the senior members of the court—will probably result in a two or more vacancies in the next presidential term.

So if gender were not a consideration, is there a standout judicial candidate who could reorient the confirmation process away from real or imagined concerns with “activism”—and be acknowledged as superior in quality, temperament, and personal ethic of concern?

Yes: Carter G. Phillips, the managing partner of the Sidley Austin law firm in Washington, D.C., who argued a remarkable five cases this term, bringing his total before the court to 50 in private practice with an additional nine during his service in the SG’s office. There is not another advocate in the country who is as respected for his impartial legal judgment, personal integrity, and genuine friendship and assistance to his fellow members of the bar and to his community. There is also not an advocate before the court who wouldn’t desire to have work product be so well thought as to merit colloquial reference by the Justices from the bench, as occurred during the Grutter oral argument with their frequent reference to the “Carter Phillips brief.” Phillips is also the right age, 56, and with the circumspect demeanor of his mentor, the late Rex Lee, Phillips is one of those rare individuals of stature who could rather remarkably be seen as a nominee of either party.

There are other men and women who could (and should) be thought of: for McCain, Judge Diane Sykes of the 7th Circuit and former SG Paul Clement come readily to mind; for Obama, Kathleen Sullivan or Judge Merrick Garland of the D.C. Circuit would surely be contenders; and I suppose there are even people with gun racks who would appeal to Bob Barr. But if the objective is to transcend political division, there is no one better than Carter Phillips.