Some historians subscribe to "critical person" theories. Although oft-overstated, the insights offered usually bear considerable thought themselves, if only for how they undermine simplistic "grand theories." One of my favorite examples is the theory that the Night of the Long Knives "determined" the history of Europe for the next two decades. On the night of 30 June 1934, hardline elements in the Nazi Party—Heinrich Himmler, et al., and his nascent Schutzstaffel (later known by the initials "SS")—destroyed the "moderate" opposition by arresting Erich Röhm and other leaders of the then-dominant paramilitary wing of the Nazi party (the Sturmabteilung or "SA"). Shortly after the arrests, most were shot—despite Hitler's personal admiration for Röhm. The net effect was to remove moderate opposition to the more-aggressive, more-militarist and -anticommunist voices of Himmler, Göring, Heydrich, and Göbbels and convince the remaining senior figures of the military that "resistance is futile."
On the one hand, there's an obvious forthcoming "change of critical persons" just waiting for us. Although nothing is ever certain in Washington, I will be very, very surprised if the Chief Justice doesn't resign in the next two weeks. (Resignation certainly beats being shot in the back of a beer hall near München!) Even if the Chief Justice does not resign, several members of the Supreme Court are no longer spring chickens, and a few have some health issues. What this really means is that some time in the next fifteen months, at least one, and possibly as many as three, confirmation hearings for the Supreme Court are going to be all over C-SPAN2. Couple this with renewed (and ridiculous) calls to split the Ninth Circuit,1 and there will clearly be some "critical persons" replaced.
How that actually takes place will probably depend greatly upon three decisions that the Supreme Court should issue in the next two weeks:
- Grokster, on liability of forum- and software-providers for foreseeable copyright infringement for which their tools are arguably optimized, not just possibly misused. This has immense implications not just for copyright and intellectual property law, but for business-method patents, for antitrust, and for respect for the rule of law. If the decision comes down too absolutistically either way, it will be untenable (and intellectually dishonest).
- Ortega/Allapattah, which concern a civil-procedure-nerd question: In a class action, must each member of a class in federal court on diversity grounds individually meet the requirements for federal jurisdiction over state-law claims? Yes, that's a dry, boring, abstract issue; however, the recently implemented class-action-jurisdiction legislation is tied up in it. Further, too many people forget that diversity jurisdiction has a Constitutional component. Of course, as one of those wierdos who would rather be in Federal court anyway, I'm in favor of an expansive interpretation; I just don't think that's what we're going to get. Instead, we're going to get another split of the baby, which in turn is going to create issues propagating back into the procedural realm of class actions and simultaneously into the personal and systemic externalities questions raised by an economic analysis of class actions—and will do so, just in a slightly different way, even if I'm wrong and the Court gives an unequivocal yes (or no) answer.
- Van Orden, the latest Ten Commandments case. This is such an obvious hot-button issue that it's hard to understate its importance. Even if the opinion merely affirms existing doctrine and applies it, the Court's decision here—particularly if 5–4 or 6–3—will sit over confirmation hearings for the Supreme Court (and, for that matter, for all federal appellate judges) like an impatient vulture not entirely satisfied to wait until its potential victim is dead. Although Van Orden isn't (at the moment) getting the same publicity as is Grokster, it is (unlike the other two cases highlighted here) a purely Constitutional issue not susceptible to being overruled or made irrelevant by "mere legislation."
I'll be a lot more comfortable trying to read goat entrails concerning the nomination and confirmation process once these three opinions are in the wild. The nature of the first nominee (whether for Chief Justice or Associate Justice) will probably be most heavily influenced by Van Orden: The less happy the hard-core fundamentalists are with that opinion, the more likely we are to get a nominee like the Hon. Michael Luttig than we are the Hon. Alberto Gonzales.2 If, however, Van Orden does not present a clear and present danger to attempted religious hegemony—or, at least, is not perceived as such—we're more likely to get Gonzales or the Hon. Michael McConnell, who are both more confirmable. If there's more than one vacancy, all bets are off, because there will be immense maneuvering on behalf of both "package deals" and "individual best-choice" viewpoints. And, of course, we're dealing only with "betting" here: Just because the odds are strongly against a given candidate does not mean he (or she) can't win this particular horse race.
So, in the end, what does all of this mean? I don't deny the "critical person" theory; I just think that the strength of that theory absent hindsight bias (leaving aside its accuracy; remember the "Minnesota Twins"?) depends a great deal upon the context. These three opinions will provide much of the context for the next set of hearings. Certainly, people will reach to Lawrence and other controversial opinions, but it's going to be very hard indeed to ignore these three opinions at confirmation time, given their temporal proximity to any resignation. And if the justice who resigns penned a strong dissent in one of them, we're in for a Really Good Time.
- I think these proposals are ridiculous mostly because they don't go to the core of the problem: the silliness of geographical divisions of courts of appeals. I've long advocated that certain kinds of matters should be heard by courts with substantial expertise and experience in those matters. Despite the occasional glitch, I believe that the Federal Circuit has been an overwhelming improvement over hearing patent cases in every circuit. As technological problems continue to gain prominence in copyright law, the case for moving copyright to the Federal Circuit only gains credence—not to mention that it might allow a fresh look at some of the ridiculous "settled law" based on the 1909 Act that continues to dominate Certain Circuits and their own copyright jurisprudence. Further, in a modern economy we can't even be confident that geographical division of the circuits will allow those circuits to concentrate solely upon the state laws of the covered states; choice of law issues lurk under more and more litigation, even though counsel frequently don't do a very good job of spotting or explicating them.
- I intend no aspersions upon anyone; just because I didn't mention a name doesn't mean I'm discounting that individual (such as, for example, the Hon. John Roberts or the Hon. Emilio Garza). These are just examples to give some immediacy to my point. I think some potential candidates would be disasters; some frequently mentioned names would not be on my top-25 list, even trying to put on the ideological equivalent of 3-D glasses to see from that perspective. If the conservatives are looking for good, reliable candidates, I believe they can do better. How much of that is my subconscious wish to see such candidates fail is difficult to grasp on a Sunday morning before enough caffeine. How much of that comes from my personal preference for a smart judge who listens, regardless of ideology, over a "reliable" judge who doesn't, is easier to grasp, but still somewhat indeterminate.
I also think that it's long past time to seriously consider elevating an academic, rather than a judge or politician, to the Court; that, however, would mean having to read not just judicial opinions, but law review articles, to vet candidates—which is a fate I really don't wish on anyone, given how poor the writing tends to be and how opinions change over time. That's not to say that a law professor as Chief Justice would be some kind of panacaea; only that it's an insufficiently considered option. If nothing else, established law professors have demonstrated (or at least had the opportunity to demonstrate) collegiality and management skills to a far greater extent than have too many appointed judges, particularly compared to large-firm private practice (where agreeability and client loyalty appear to be far more important than raising the bullshit flag).