In the wake of the death of the most brilliant legal mind of my lifetime, we’ve already drowned in stories ranging from simple political posturing to outright grave-dancing.
President Obama should select a nominee for the Supreme Court. Failing to do so would be rather peculiar. Then-Senator Biden was wrong in 1992. Senator Schumer was wrong in 2007. Senator McConnell is wrong now. And then-Senator Obama was wrong in 2006.
His agreeing to ride out his term without attempting to fill the vacancy caused by Justice Scalia‘s death also doesn’t help Republicans politically, despite what the GOP may believe.
Not only would an Obama nominee likely provoke Republican voter ire, but stalling until 2017 is a major gamble for the GOP. Filibustering Obama’s nominee would make a Democratic victory more likely in November, and a Clinton or Sanders nominee would almost certainly be more disagreeable than whomever Obama nominates to take the open spot.
What happens then? Do Republicans say they’ll wait four years before returning the Court to full size?
And let’s not even contemplate what a Trump Supreme Court nominee might look like.
The smarter play might be to hope Obama nominates a reasonably acceptable justice—possibly after first nominating Eric Holder or Loretta Lynch as a stalking horse—confirm that acceptable justice, then replace Ginsburg with a “conservative” if a Republican wins the White House this fall.
If, however, Obama nominates a “liberal,” then the GOP can absolutely reject the nominee and suffer no political fallout for doing so. And they can also just show that clip over and over. But outright obstinance and blind rejection of any nominee is tactical insanity.
As I was pondering all of this, it occurred to me who the ideal nominee would be, from the perspective of both sides—as well as from the perspective of the best interests of our Republic.
Before you scoff (too late, I know), consider the following ironclad arguments that make me the obvious choice.
Nine of them, appropriately enough:
1. Basic Qualifications: Here’s a fun fact. Unlike many other offices mentioned explicitly by the Constitution, the qualifications for “Supreme Court justice” are surprisingly vague. In contrast to, say, the presidency or Congress, Supreme Court justices face no citizenship or age tests.
The point is that there are basically no criteria for being a justice. Incredibly enough, one doesn’t even have to be a lawyer—although every justice has been. That’s ok, though, as I’ve been a licensed attorney in good standing for over a decade. True, I’ve never been a judge, but Supreme Court justices most assuredly do not have to be judges. Current justice Elena Kagan wasn’t one, for example.
In terms of basic requirements, there is nothing disqualifying me from donning the Big Robe.
“There is nothing disqualifying me” isn’t exactly a compelling reason for my nomination, but don’t worry. Here they come.
2. I Already Live in the Area: I’m up here RIGHT NOW! I won’t need to relocate from some brownstone in Manhattan or a luxurious Malibu beach house. My confirmation hearings would be a short Metro ride away!
Plus, I’m pretty sure I could get off work. Now, it goes without saying that, like any well-adjusted, perfectly normal adult, I’ve been saving up a lot of vacation time for my trip to WrestleMania in a few weeks.
You know what, though? I’d be willing to surrender my pilgrimage to Jerryworld for the sake of the judiciary.
If that sacrifice doesn’t prove my dedication to the Court, I don’t know what does.
3. Demographics: Nothing is more important to social-media taste-makers than the supreme value of “diversity.” As far as the Court goes, I get high marks here as well.
Your first thought might be, “Wait, Tom, you’re just another white guy.” First, you’re kind of racist for thinking that. Second, you’re right. However, you’re missing a couple of salient facts about the current composition of the Court.
Of the eight sitting justices, there are five devout Roman Catholics and three observant Jews.
I’m a mostly-non-religious, nominal Episcopalian who attends church about once a year. I don’t have any kind of hardcore theology “informing” my judicial opinions! Only a robotic, slavish devotion to ancient legal documents! That’s what I call diversity.
That’s not all, though. Justice Scalia, whom I will be replacing in a matter of weeks, was from New York City. So is Ruth Bader Ginsburg. Elena Kagan? You guessed it. New York City. You’re not going to believe it, but Sonia Sotomayor was born in New York City.
Samuel Alito is from Trenton, New Jersey, which happens to be about 60 miles southwest of . . . New York City. John Roberts is at least from Buffalo. Stephen Breyer is from San Francisco, while Anthony Kennedy is from Sacramento.
Only Clarence Thomas, from little Pin Point, Georgia, wasn’t born in a major metropolitan area.
Like my soon-to-be-friend Justice Thomas, I wasn’t raised in some lavish city like New York or San Francisco or Buffalo or, ahem, Trenton. I grew up in a suburb of Richmond, Virginia called Henrico.
I look forward to bringing my easygoing, suburban demeanor to the Court.
But, wait—there’s more!
4. I’m Not Rich (OR: Demographics, Part II): I would also be the only justice who isn’t socioeconomically upper-class. At least six of the sitting justices are confirmed millionaires, and the other two likely are by now, or will be soon.
Even with my new salary as an associate justice, I would only be able to move to a slightly larger apartment in Arlington.
Why is this relevant? Have you ever heard of a case called American Isuzu Motors, Inc. v. Ntsebeza?
Probably not! You know why?
Among other reasons, because the Supreme Court couldn’t decide that case.
And, do you know why they couldn’t take the case? Also unlikely, since we just established that you’d never heard of the case in the first place.
They couldn’t decide the case because a minimum of six justices must be able to take part in order for the Court to hear it.
Four justices—all of whom currently sit on the Court—couldn’t participate because they were stockholders in the companies that were at issue in the case, which dealt with damages arising from corporations doing business in apartheid-era South Africa.
Me? I have almost no assets or wealth! I’m not even upper-middle-class! I’m just a common man, working hard with my hands!
Speaking of which—that leads me to my next point.
5. Education and Experience: “Ok,” you may be saying, “This is where your nomination falls apart.”
Wrong, dear reader! This is where my nomination coalesces!
I may have gone to a great undergrad institution, but, admittedly, I went to a law school that is merely fine, rather than elite. Long story short, I went there because (1) they gave me a big sack with a “$” on it, and (2) going there allowed me to coach football at my old high school.
Obviously, my priorities at age 21-22 were a bit short-sighted.
But let’s look at the current Court. Here are the law schools of the eight remaining justices: Harvard, Yale, Harvard, Yale, Harvard, Yale, Harvard, Columbia.
Therefore, not only would I be injecting religious, geographic, and economic diversity, but educational
mediocrity diversity as well!
My credentials as a student were solid. Good grades, Law Review, Moot Court, all that jazz. I also passed the Bar on the first try, unlike Justice Lewis F. Powell, Jr. (a fellow Washington & Lee man) or Justice Benjamin Cardozo (who failed—holy catfish, is this right?—five times).
No, my diploma may not be adorned in ivy, but do we really need all of the justices to be from fancy, top-five law schools? Why can’t a guy from a not-so-fancy, top-50(-ish!) law school get the job done?
I submit that I can, ladies and gentlemen.
And, while federal jurists generally come from high-powered, prestigious professional backgrounds, either at top firms or for the government, I’ve sullied my hands in small-firm and solo practice work, even delving into the seedy world of . . . *shudder* . . . contract work on occasion.
No one else with the conlaw chops to serve on the Court
will admit to that in public can make that claim. This is yet another example of the exciting, new perspectives I can bring to the hallowed halls of our nation’s highest court.
6. Scholarship: I’ve been fortunate enough to do a bit of (non-criminal) conlaw-related work in my career, but nothing worth mentioning in detail. But that isn’t even the point.
You know how people have “friends” and “relationships” and “interests?” Yeah. This is pretty much it for me.
Picture in your mind’s eye Desmond Hume down the hatch, alone in his bunker. Except, instead of ping-pong solitaire, there’s a copy of Rodney Smolla’s Free Speech in an Open Society, or Knight & Epstein’s The Choices Justices Make, or A Matter of Interpretation by the late Justice Antonin Scalia.
Constitutional law has been my obsession above all other obsessions since I was a teenager. Yeah, I’ll need to brush up on my antitrust jurisprudence, but, hey—I’ll have a few months.
As a bonus, not only do I have an amazing grasp of conlaw, but I can also write about it with grace and skill (and modesty!). Here alone, I’ve written this and this and this and this, to pick some at random. My style of prose will be a worthy successor to that of the legendary Antonin Scalia.
And, hell, I must being doing something right. I’ve been cited favorably by everyone from Andrew Sullivan at The Atlantic to Breitbart, despite the fact that I’m just some nobody who bangs out a lightly-read, totally inconsequential blog.
Correction: I’m just some nobody who is about to be your next Supreme Court justice!
7. I’m Young: This works on two levels. First, despite the fact that I have consumed enough pizza to feed a small nation-state, I still (presumably) have many years ahead of me. I’m not quite as young as Joseph Story, the youngest justice in history, but I’m still in my 30s. When we’re talking lifetime appointments, that’s important.
Secondly, I actually have first-hand experience of a lot of things that the rest of the Court may not understand. I know what a microtransaction is! I’ve used Bumble! I have a WordPress blog!
When we get a case about violent video games or electronic IP or net neutrality, I’ll have the kind of direct knowledge of those topics that my elderly colleagues sorely lack. With all due respect!
8. I Must Fulfill My Destiny and Become the One, True Tom Garrett: Funny story. I went to law school with a guy who has the same name I do. He’s a few years older than I am, but we were the same year in grad school. Nice guy. Never had any issues with him.
However, things have really gotten out of hand of late. Following a stint as a Commonwealth’s attorney, he became a state senator. He’s got his own Wikipedia page, for heaven’s sake!
Now, he’s poised for a possible run at Congress.
If that happens, short of my committing a major crime, I’ll probably lose my last opportunity to be the “Tom Garrett” of record. And you know those media jerks reporting on my crime spree would throw in my middle name.
Seriously—I’ll guarantee you at least one person who is sharing or reading this piece right now thinks I’m this guy.
You have no idea how annoying this situation can be. To this day, I still get Facebook friend requests from people saying things like, “It was very nice meeting you at the county GOP meeting last night, Mr. Garrett!” or “Good luck in the election next month!” or “You’re a very competent litigator!”
I’m tired of having to explain to people that they have the wrong man.
Once I’m appointed to the Court, it will be his turn.
9. I Can Get Confirmed: Remember how I said I had never served as a judge? Blank slate. Yet, the Republicans in the Senate won’t fear me, because they will have read my many paeans to Justice Scalia, as well as my lengthy defenses of judicial restraint. Meanwhile, my respect for stare decisis will provide enough comfort to the president and Democratic senators that they’ll be able to stomach me.
I’m also squeaky clean. I don’t drink, smoke, or do drugs. I’ve never been arrested. I don’t employ any undocumented workers.
In short, I am astoundingly, wonderfully, impossibly dull. Excluding people who have been in medically induced comas for the last 20 years, no one the president could possibly nominate would be able to “out-boring” me.
Sure, I’ll need to go back and delete my old MySpace page. Ditto on my Facebook account, now that I think about it. I’ll also need to funnel a bit of hush money to anyone who’s ever been in a fantasy football league with me. Granted. And, yes, I have an old hard drive with e-mail that dates to my early 20s that I should probably destroy, just to be safe. But, hey, I own a hammer.
That’s a small price to pay for grade-A adjudicatin’!
As a bonus, my confirmation hearings will be delightful.
Reasonably conservative. No skeletons. Fun back-and-forth with Lindsay Graham and Al Franken alike.
Thus, in the most important criteria of all, I come up aces. Republicans don’t want to confirm anyone the president nominates, but I’m too tasty a morsel to pass up.
NOM NOM NOM! Let’s make this happen, America!
UPDATE: Some enterprising soul (not me—honestly) created a petition to bring this to the attention of the president. It may be found here: Why Not Tom? Only 99,993 more signatures to go!