July 17, 2007

Debra Livingston as Bizarro Harriet Miers Scenario

by PG

In all the chatter about Tom Goldstein's predictions for a Democratic president's Supreme Court nominees, I haven't seen an explicit reference to a possibility that immediately popped into my mind: what if President Democrat nominated a Bush appellate court appointee to the Supreme Court? This nominee couldn't be a Kavanaugh nor any other judge whose appointment was contested -- it would have to be someone who received little or no opposition and who was unanimously approved by the Senate.

Of course, the person of whom I am thinking is Debra Ann Livingston, recently of Columbia Law School and currently of the Second Circuit. Due to the not-wholly-abandoned tradition of consulting with the senators from the state in which a federal judge would sit, Bush got the input of two Democratic senators in choosing Livingston, who appears to be somewhat conservative-to-moderate on law'n'order (a former AUSA), national security (coauthored a semi-defense of racial profiling in the search for terrorists) and NSA wiretapping, but likely to tilt more liberally on other issues. President Democrat, who may not be wholly averse to retaining some of the powers Bush assigned to the executive, could see Justice Livingston as an excellent way to avoid a confirmation battle from the right (how can they fight a G.W. Bush appointee?).

However, as Milbarge remarks parenthetically, "What will be very fascinating to see is if the lefty blogosphere erupts in a Bizarro Harriet Miers scenario, if it feels a candidate isn't liberal enough." I think Livingston would easily counter any complaint of her being "unqualified" -- she could analyze circles around anyone on the Senate Judiciary Committee -- but as described above, while she didn't arouse liberal opposition this time, that probably was because as a Bush appointee to the Second Circuit, she's a gift. As President Democrat's nominee for the Supreme Court, groups with views to the left of Livingston's essentially would wonder why Democrats should give up a seat to a mere moderate when it could get someone liberal on all the issues to fill that seat instead.

July 17, 2007 01:19 AM | TrackBack
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