Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Sunday, October 02, 2005

Pick Three

From On High has tagged me with his new (though probably short-lived) blog meme: Pick 3. The game here is to name three people who Bush should consider selecting to replace Justice O'Connor who've gotten little or no mention up until now. (Though, given how many people have been identified as being on the "short" list, that may be difficult.) The list can be either a wish-list or a prediction. My three:

1. Hadley P. Arkes - He's not a judge (or even a lawyer!). He's a little bit old. He's virtually the dictionary definition of unconfirmable. So why him (other than the fact that he's a friend and former professor of mine)? If nothing else, as a warning. If people think Scalia-ite Positivism is the scariest thing in the GOP's bag of judicial tricks, they ain't seen nothing yet. If you think Justice Thomas' willingness to overturn judicial precedents makes him a "judicial activist", wait until you're staring down the prospect of an honest-to-goodness Natural Rights philosopher on the Court. In defeat, he'd make more palatable the Luttigs and Alitos of tomorrow. And, in the unlikely event that he did somehow get confirmed, the Court would have the eloquent advocate of the Natural Rights school it's lacked since the retirement of Justice Sutherland.

2. Eugene Volokh - This is kind of cheating, because he's occasionally mentioned (mostly in jest) as a possible nominee by other bloggers. But, still: a) he has expertise in areas (free speech, religion clauses, 2nd Amendment) where the Court's jurisprudence is confused or screwy, b) he has expertise in areas (copyright, technology) where the Court could use an expert, and c) he's a blogger. That last one's not just me being a homer. Openness, willingness to give reasons for one's actions, and the ability to engage in constructive debate are important characteristics for a judge in a democratic society, especially in this Information Age, and they're attributes that Professor Volokh has in spades.

3. Ruth Wedgwood - What's with all the professors? Anyway. This is another one of those "expertise" picks. Professor Wedgwood would bring to the Court extensive knowledge of War on Terror and international law issues. Moreover, as a former federal prosecutor, she has hands-on knowledge of criminal procedure issues the Court currently lacks. There's a pretty good chance she's not on board for the social conservative program (she was *ahem* a clerk for Justice Blackmun), but if we have to put a pro-Roe woman on the bench, I'd rather it be someone who's otherwise eminently qualifications rather than some underqualified, Souter-in-drag cypher.

Now, the passing-along. How about Will, Carina, and the Originalisms crew. Anyone else who wants it, of course, can have it, but this seems the kind of meme that appeals to the law student set.