Tuesday, November 12, 2002

Howard Bashman points to an article by a GMU law professor discussing possible Supreme Court picks. The usual suspects are discussed, but the most interesting bit is this paragraph:
Alternatively, the president could tap any number of solidly conservative legal scholars in academia. Short lists in this category often include Richard Epstein, from the University of Chicago; Douglas Kmiec, dean of the Catholic University law school; and Eugene Volokh, a very young candidate from UCLA's law school. Another possibility with a special appeal is Viet Dinh, a former professor at Georgetown University who now serves as an assistant attorney general in the Justice Department; Dinh, who grew up in Orange County, would be the first Asian-American appointed to the Supreme Court.
Well, I wouldn't describe Epstein as "solidly conservative." At least not in his presence, as he would erupt (as I've seen him do) into an outburst on why he is a libertarian and most certainly not a conservative. And I wouldn't describe Epstein as a possible Court pick, either. He's brilliant, no doubt about that, and could probably write most Supreme Court opinions extemporaneously. But his scholarly work would probably doom his candidacy. For example, his work on the Takings Clause (in which he basicly argues, as I recall, that the New Deal is unconstitutional) would make even most Republicans blanch.

Douglas Kmiec? A brilliant legal scholar, an exceedingly witty lecturer, and an all-round nice guy. (I suppose that having thus praised him, I should disclose that he invited me to be an adjunct professor at his law school.) But he has probably been too outspoken on his conservative legal views to make it through a closely-divided Senate. (It would be entertaining, however, to see yet another attempt by ill-briefed Senators to query a conservative candidate on his views of natural law.)

Eugene Volokh? I like the idea. Eugene is truly extraordinary in his maximization of both scholarly ability and social skills (not too many brilliant law geeks are also the life-of-the-party wherever they go). He seems to be well-respected by a wide range of legal academics, even those who vehemently disagree with him. And he is amazingly productive, almost on a Posnerian scale. Against him, though, would be his youth and his libertarian views.

Viet Dinh? Again, a brilliant man and a really nice guy who fairly bursts with energy when discussing any legal topic whatsoever. His life story is especially attractive (a Vietnam boat person who ends up at Harvard Law School and clerking for Justice O'Connor). Hard to say what his chances would be, although the Democrats would no doubt pull out all the stops to block someone who worked for Republicans in investigating both Whitewater and Clinton's impeachment. Also against him is his youth.


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