It occurs to me that there is a politically well-connected Mormon who is eminently qualified to take Justice O’Connor’s slot on the Supreme Court. (And no, I don’t mean Orrin Hatch.)The man I have in mind is Timothy Flanigan. (Full disclosure: I worked as a research assitant for Tim while in college, and he is one of the reasons that I decided to go to law school.) Tim, an active member living in Northern Virginia, is currently the number two man in the Justice Department. In George W.’s first term he was deputy White House counsel, and was one of the key GOP lawyers in the Florida recount litigation. In George H. W. Bush’s administration he served as head of the Department of Justice’s Office of Legal Counsel, where — among other things — he prepped both David Souter and Clarence Thomas for their confirmation hearings. For the non-law geeks, the OLC is, along with the Solicitor General’s office, the intellectual heart of the executive branch’s legal team. When the President or any other executive branch agency is faced with a particularly difficult legal question, especially one involving constitutional law, that requires an official legal opinion, they turn to the OLC. Of the currently sitting justices two — Rehnquist and Scalia — previously served as head of OLC. Tim is a graduate of the BYU and the University of Virginia Law School. He clerked for Chief Justice Warren Burger. In short, he is an extremely smart, extremely savvy, extremely well-connected, and extremely experienced lawyer.
He has never, however, been a judge. Although the last seven nominees confirmed to the Court — Ginsburg (DC Circuit), Breyer (1st Circuit), Thomas (DC Circuit), Souter (NH Supreme Court), Kennedy (9th Circuit), Scalia (DC Circuit), O’Connor (Arizona Supreme Court), Stevens (7th Circuit) — were sitting judges when they were tapped, there is not legal requirement that a nominee have judicial experience. (Also the two unsuccessful nominees in the same period — Bork and Ginsburg — were on the DC Circuit.) Nor is there any strong tradition of only appointing judges. Rehnquist had never been a judge prior to being elevated to the Court, and at the time of his nomination was — significantly — serving as head of OLC. Lewis F. Powell was an attorney in private practice in Richmond whose main claim to fame was that he had been head of the American Bar Association. Other well-known justices with no prior judicial experience include John Marshall, Earl Warren, Felix Frankfurter, and William O. Douglas.
What does Bush get if he nominates Tim? He gets a young justice in good health. He gets a man with the experience and intellectual firepower to hold his own on the Court. (No Harry Blackmun subject to raging insecurity and bullying from Linda Greenhouse he.) He gets someone with solidly conservative credentials whose qualifications cannot be seriously questioned. He gets a soft-spoken and friendly nominee who will be difficult to plausibly vilify at his hearings. He gets a dark-horse candidate who has not yet attracted the intensive scrutiny of the hatchet-persons of the legal left. (Any one doubt that People for the American Way already has a thick file on Michael Luttig for example? BTW, Tim clerked for Burger with Michael Luttig and they are good friends.) He gets someone who does not have an enormously long paper trail of published articles and opinions, although there are no doubt lots of OLC memos with Tim’s signature on them. (None of them, fortunately, deal with torture.) Tim does labor under the disability of being white, which means that there is no fun ethnic “the first ____ on the Court.” Of course, he would be the first Mormon, but we are not an “ethnic” group that provides much mileage. Tim’s Mormonism, however, might defang Harry Reid a bit, or at least mute his criticism a little. This is not without precedent. For example, it is a method that Clinton seems to have used on at least one occasion. When I worked on the Hill, lots of GOP staffers that I knew were puzzled by Hatch’s willingness to give Richard Paez, a liberal nominee to the Ninth Circuit, a free-pass in the Judiciary Committee. I argued that Paez was a Mormon and a BYU graduate and that gave him added traction with Hatch.
P.S. — George Sutherland, Utah’s lone contribution thus far to the high court, was a justice during the first part of the 20th century. (If I recall correctly, he was appointed by Taft and retired under FDR.) Sutherland, however, was not a Mormon. His father, an English convert who made the trek to Utah, became a Jack Mormon. As far as I know, Sutherland was never baptized, and he began his rise to power as an operative for the Liberal Party in Utah Territorial politics. (The Liberal Party was the anti-Mormon Gentile party, while the People’s Party was the Mormon party at the time.) With statehood, Sutherland became a Republican and later a Senator from Utah. He was, however, a BYU (then Brigham Young Academy) graduate. It goes without saying, of course, that the U. of U. has yet to get anyone on the Court.