Souter's Replacement (different take on SCOTUS vacancy)

ProfessorBainbridge.com ^ | May 17, 2009

[Clintonfatigued]

If this analysis is correct, the widely shared assumption that Justice Powell received substantial deference from his colleagues in this area has a rational economic explanation. We tested the Powell business deference/expertise hypothesis by looking at the proportion of important securities and corporate cases assigned to him during his tenure on the Court. As a proxy for the importance of cases decided by the Court, we looked at opinions that found their way into the casebooks. Specifically, we looked at thirty-eight currently used case books on Corporations, Business Associations, Securities Regulation, and Corporate Finance. For each casebook, we counted the number of securities and corporate opinions by the various Supreme Court justices.

The [result] reveals a dramatic dominance effect for Powell, both in terms of his overall number of securities and corporate cases in casebooks and his per year entry rate.

The implication of all this should be apparent: If Obama nominates as a replacement for Souter someone with demonstrated specialized expertise in a field in which the other members of the court lack expertise, that nominee likely will end up with disproportionately large influence on court decisions within his/her field. If Obama picks a specialist, accordingly, the Senate would be well advised to go beyond the narrow question of whether the nominee is likely to vote to overturn Roe and also ask: What is the nominee likely to do in his/her field of expertise? Indeed, in the long run, that latter question may matter a lot more.

In turn, all of this suggests that Obama--to the extent he's interested in making a good government choice--ought to be asking himself, "what area of expertise does the current court lack that I think it needs"?

[Clintonfatigued]

While Roe vs. Wade is undoubtedly of importance, the concern over that and other social issues is offsetting other issues that are less provocative, but have more effect on more people. If Obama chooses a justice with expertise in an area of Constitutional law that the others lack, he or she could become a more influential member than anyone expeects.

[Paladin2]

WE could use someone with conservative expertise in the private property and copyright law areas.

[Theodore R.]

When one thinks about it, it is not possible to “replace” Souter. Why? Whoever fills the seat will vote on automatic pilot exactly as Souter would have if he were still there. And Souter knows that. Thanks, Sununu, Sr., and GHWB!

[nathanbedford]

In turn, all of this suggests that Obama--to the extent he's interested in making a good government choice--ought to be asking himself, "what area of expertise does the current court lack that I think it needs"?

There is the rub, to believe that Obama is interested in making a "good government choice" is like believing that Obama really wants to find "common ground" to reduce abortion. Because of cases like Roe V. Wade in which the court has become aggressively interventionist as it has become increasingly detached from the Constitution, the court has become decreasingly related to "good government" to the degree that that phrase has any relationship whatsoever to the meaning of the Constitution.

Obama will do what every Democrat president since John F. Kennedy has done, he will appoint an ideologue to the court to advance a leftist agenda. Republicans in the Senate will look for "common ground" and the Constitution will be further debauched and "good government" will mean whatever five berobed tyrants says it means.

[muawiyah]

Last thing in the world Obama would do is make a "good government" type of choice. My heavens, the man is a Chicago politician ~ that's halfway between being a Commie and a mass murderer with a hand into the rackets.

However, when it comes to "a field in which the other members of the court lack expertise....." that could be many so many things Obama and his handlers'd never get through the list.

That's why they'll replace Souter with some political putz with a strong Chicago connection.

[truthandlife]

He will serve up “red meat” for his kook left base. The nominee will be strongly pro-abort and pro-homosexual rights. This will be the only qualification Obama will make for this candidate he will serve up.

[Clintonfatigued]

“WE could use someone with conservative expertise in the private property and copyright law areas.”

That would be great. Unfortunately, that’s unlikely this time.

[Clintonfatigued]

“Obama will do what every Democrat president since John F. Kennedy has done, he will appoint an ideologue to the court to advance a leftist agenda.”

John Kennedy appointed Byron White, who wasn’t a leftist ideologue. I don’t know what Kennedy’s intent was, but White’s rulings were often with Rehnquest.

[Impy]

I read some article hoping Obama would appoint some who could “persuade Kennedy, maybe even Alito”.