Here’s who should replace Antonin Scalia

Editor’s Note: Michael Broyde is a law professor at Emory University. He is not related to, nor has he ever met Judge Richard A. Posner. Like many, he has admired Posner from afar. The opinions expressed in this commentary are solely those of the author.

Story highlights

Michael Broyde: Court picks when other party controls Senate are moderate or unpredictable

He says Obama could nominate a moderate, do a recess appointment or tap top legal mind

He says Judge Richard Posner is such a candidate, the leading intellectual light in law

CNN  — 

The Constitution is clear: The President nominates a successor to the late Justice Antonin Scalia, and the Senate’s consent is needed for confirmation to the Supreme Court. More than that seems to be at stake in the current political climate, however, and the contest is one of political will, rather than law.

Michael Broyde

The President may nominate any candidate he wishes, and the Senate may reject any candidate. Neither the President nor the Senate is required to give any reason for their decisions. Presidents have in the past nominated candidates widely considered mediocre or brilliant, and the Senate has rejected both mediocre and brilliant nominees.

But the recent data seem to point to a trend. Nominees to the Supreme Court made by a President when the other party controls the Senate are unpredictable and moderate.

Consider a few justices in recent memory who were nominated by a Republican President and confirmed by a Democratic Senate: President Ronald Reagan appointed Justice Anthony Kennedy, who is now the court’s centrist (and voted in support of same-sex marriage last term); President George H.W. Bush appointed Justice David Souter, who became comfortably liberal; President Richard Nixon appointed Justice Harry Blackmun, who wrote the opinion in Roe v. Wade, the seminal abortion case.

Justice William Brennan, whom President Dwight D. Eisenhower nominated, became a leading liberal light. Other examples could be found to suggest that justices nominated by a President and confirmed by a Senate controlled by the other party are more likely to be moderate or unpredictable. Focusing on election-year appointments might be a red herring.

Given that reality, three confirmable nominees are possible in the current situation.

First, the President can nominate a moderate or one whose track record makes labeling her or him difficult. There are many advantages to moderate appointments, but they require compromise between the parties, which is in short supply now. The disadvantages of this approach are also clear: Justices appointed in this model rarely turn out as predicted, and the President may not want to appoint someone he will regret. (Eisenhower once referred to Brennan’s selection as a “big mistake.”)

Second, the President can appoint someone to the court through a recess selection (when the Senate is adjourned). This temporary appointment would last until a justice is confirmed or until December 2017. A few Supreme Court justices have been appointed through recess appointments, and Eisenhower appointed three such justices.

The advantages to such an appointment are two-fold. The President can appoint whomever he wishes, and the court will have its full complement of nine members. The disadvantages are also clear. Interim appointments weaken the Supreme Court’s perceived integrity since such justices lack life tenure.

I want to suggest a third option: The President should appoint a leading legal mind at the end of his career. In particular, the President should nominate Judge Richard Posner to the Supreme Court. Posner is a leading intellectual light of the past half-century in law. He is the author of more than 40 books – many of them landmarks and classics in diverse fields.

He has been a judge on the 7th U.S. Circuit Court of Appeals since 1981. The Journal of Legal Studies found Posner to be the most-cited legal scholar of all time by a considerable margin. He is respected by judges, law professors and lawyers alike. He is the modern “Albert Einstein” of American law, and it has always been an embarrassment to the legal system that he is not a member of the Supreme Court. Imagine the NBA Hall of Fame without Michael Jordan: Richard Posner is the Michael Jordan of Law.

Three additional factors are important in supporting Posner’s selection. The judge is not a moderate but an iconoclast, with unique positions that neither political party fully supports: He supports same-sex marriage, is a conservative on economic matters, opposes the war on drugs, minimizes privacy and is famous for undertaking economic analysis of many issues.

Everybody agrees with him sometimes and almost no one all the time. Second, Posner is already 77 and is unlikely to serve for many decades given his age. The next President could conceivably name Posner’s successor.

Finally, and most importantly, the idea that one of the leading lights of law worldwide is a Supreme Court justice ought to make anyone who cares about the high court and the law proud to be an American.

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