Walter Olson praises retiring Justice Sandra Day O'Connor for sounding:
... the alarm against what she's termed "the increasing, and on many levels frightening, overlegalization of everyday life in our country today."
He then turns to the question of who should succeed her, making this interesting observation:
... in a curious exchange, Sen. Reid had suggested to reporters that the president might seek compromise by picking a GOP senator for the next vacancy, and that four such senators "would be outstanding Supreme Court members." Which four? Sen. Reid named Lindsey Graham of South Carolina (who promptly said he wasn't interested), Mike DeWine of Ohio, Mel Martinez of Florida and Mike Crapo of Idaho.
As reporters noticed, some obvious names were missing from the list, such as Sen. John Cornyn, described by Reuters as "a former member of the Texas Supreme Court and the only senator with appellate court experience" as well as a former attorney general of his state. Asked if President Bush should consider Sen. Cornyn, Sen. Reid shrugged and said, "I've told you [the ones] I think he should consider."
Perhaps Sen. Cornyn (lifetime American Conservative Union rating: 93) is just too conservative for Sen. Reid's tastes? Not likely, considering that Sen. Crapo's and Sen. Graham's lifetime ACU ratings stand at 93 and 91 respectively. And Florida's newcomer Sen. Martinez, who's on the Reid-approved list, is known as a far more combative social conservative than someone like Sen. Cornyn, with much closer ties to antiabortion and Christian Right groups.
It's all quite a baffling mystery if you accept the oft-noised view that today's Democratic leadership is in thrall to social liberalism and views the defense of Roe v. Wade as its No. 1 priority. One possible clue is that while none of Sen. Reid's four faves are identified with the GOP's socially liberal Chafee-Snowe wing, all four (unlike, say, Sen. Cornyn) have repeatedly broken partisan ranks to side with the Democrats and the organized bar against liability reforms. In fact, Sens. Graham, Martinez and Crapo all practiced as plaintiff's lawyers before coming to the Senate. Could it be that Sen. Reid is ready to sell out the interests of his party's social-liberal faction in order to protect the interests of its organized-lawyer faction?
Turning to names, Walter offers four:
... it would make sense for [Bush] to turn to one of the many appellate judges-- Frank Easterbrook of the Seventh Circuit, Edith Jones of the Fifth, Michael McConnell of the 10th, Alex Kozinski of the Ninth, among others--whose writings and opinions have shown a keen awareness of the relevant issues.
My take on those names will not surprise any regular reader of this blog. I'm a big fan of McConnell and would support Jones. As for Kozinski, I've met him and like him very much, I admire his brilliance, but worry that his libertarian leanings would incline him to vote with the liberal bloc on social and cultural issues. As for Easterbrook, I've met him and respect his considerable intellectual abilities, but have much the same worries about him that I do with respect to Kozinski, although Easterbrook's decision upholding a state ban on partial birth abortions (over a dissent by Richard Posner, which is one more reason I would oppose Posner) is somewhat reassuring.
