Pam Karlan–whom I am a big fan of–spoke at a Brookings Institute event about what she sees as an overblow “Ascendancy” of the conservative legal movement. This counterfactual is quite startling!
“The first tweak – Jimmy Carter and George H.W. Bush. They were both one term presidents. Jimmy Carter got no chances to put a justice on the Supreme Court, Bush got two, and used one of them to nominate Clarence Thomas, in many ways the most radical conservative jurist to sit on the Supreme Court in our lifetime,” she said. “Turn that around, and consider what would have happened if Justice Thomas’s seat were held by one of the judges Jimmy Carter appointed to the court of appeals, say Patricia Wald, or Betty Fletcher, or to drive terror into the hearts of conservatives, Steve Reinhardt.”
And the second tweak, an Al Gore presidency. Had Gore been president Karlan surmised we might well “still have a chief justice, who was a former administration lawyer, a Hogan & Hartsen partner, and a D.C. Circuit alumnus – but it would be David Tatel, not John Roberts.”