Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog, where this piece was originally posted. Here is how I think the nomination process is likely to play out. I divide it into process and substance. First, the process: Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28.
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on April 18, 2010. Supreme Court retirements inevitably produce much more coverage of process than substance. The press is dominated by political rather than legal reporters. Politics is also more familiar and therefore more accessible to the public than are court decisions. The irony is that this attention to process is not very meaningful—at least at this stage, when there is no nominee.
One Case at a Time: Judicial Minimalism on the Supreme Court by Cass R. Sunstein (Harvard University Press, 290 pp., $29.95) I. America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox.
Since the Progressive era, this magazine has argued for judicial restraint as part of a broader argument for liberal nationalism. Judges should defer to the prerogatives of Congress and the president, the argument goes, so that popular sovereignty can serve as the engine of national unity.
The conservative justices are privately exuberant about the remarkable Supreme Court term that ended last week. Surprised and slightly dazed by the magnitude of their victory, they think they have finally exorcized the ghost of the Warren Court, fulfilled the goals of the conservative judicial revolution and vindicated the ideal of a color-blind Constitution for the first time since Reconstruction.