President Barack Obama has written a guest posting at the SCOTUSblog
(SCOTUS stands for Supreme Court of the United States)
under the title,
A Responsibility I Take Seriously.
Given the current battle lines drawn by the obstructing and divergent Senate Judiciary Committee as being unprepared to even hold hearings on ANY new Supreme Court nomination during President Obama's remaining term as President of the United States, it will be quite interesting to see who the nominee will be.
There is a mile of difference between qualifications that President Obama lists in his guest posting for the prospective nominee and the political maelstrom that the nominee will be thrown into once the nomination is made.
President Obama appears to be seeking a benevolent more-or-less liberal soul, but what he needs to nominate is a legal field marshal.
You cannot just throw a normal federal judge or a young U.S. Attorney General to a den of wolves, a political reality which reduces any possible "short list" to maybe one or two persons, not more, and we can think of only one.
The person nominated must be ABOVE the crowd, and must -- in the eyes of the world -- stand ABOVE the political obstructionists.
We are convinced that the only truly brilliant nomination at the present time would be Richard A. Posner, because it would give President Obama the upper hand, an upper hand which would remain intact during his last year as U.S. President, regardless of what the Senate Judiciary Committee did or did not do, and regardless of whether the Senate confirmed Posner or not, or when.
Posner stands ABOVE the Senate, clearly, in terms of his "legal standing". He is a nominee to respect, both by liberal and conservative elements, because he is a judge's judge, the way a judge should be, but seldom is.
All the other prospective candidates that are discussed, e.g. by Tom Goldstein at SCOTUSblog in How the politics of the next nomination will play out, would be caught in a political war for which none of them seems prepared, nor do they have the requisite legal RANK to emerge unscathed. We do not think that any of them has the clout to move the present stalemate one inch.
After all, the prospective candidates are mostly judges, not field marshals.
But a juridical field marshal may well be required to win this particular political war.
Only Richard A. Posner fits that bill, as the most cited jurist of all time -- a real legal field marshal, self-admittedly a political conservative, and yet not a man of judicial dogma, but rather, of common sense, who can be difficult to predict, because he applies the LAW, as a judge should do. Any nomination of a lesser-ranking person, must, by definition, be regarded as a "political" nomination, in which case the political stalemate will not be lifted.
Posner has just published a new book which is well worth a read in terms of understanding the demands faced by modern judges. See Richard A. Posner, Divergent Paths: The Academy and the Judiciary, published this January, 2016 by Harvard University Press, to which this abstract summary is found at the Harvard University Press site:
"Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges—at the risk of intellectual stagnation—to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.P.S. This is not a paid ad regarding the above book but rather the opinion of the writer of this posting. We do not know Judge Posner personally and there is no guarantee at all if we would even like him if we met him, but that is not the point. What is required now is to find the best man PROFESSIONALLY for the job, and he appears to be it. We posted about this topic previously at:
The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.
Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow."
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