Dahlia Lithwick is sometimes one of the best legal writers around... and sometimes just really weird. Today's Slate piece has the thesis "unlike Richard Epstein, poor Harold Koh is viewed as too extreme for the Supreme Court and that makes liberal law students sad."
my concern here is with the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House. Look at the speakers list of the last national Federalist Society conference and tell me the word filibuster would have been raised if John McCain had tapped most of them. "
Olson is 70 and was passed over as too controversial already. Richard Epstein, I feel confident in saying, will never make it to a shortlist. Kenneth Starr, even though he's already been a judge, will never make it to a shortlist, and there are plenty of Democrats who would filibuster him even if it meant staying awake all night reading aloud from the phone book on the Senate floor. And from the linked Federalist Society speaker's list things look no better. Many are on the list for balance (Jed Rubenfeld: not a rising star of the right!), and many aren't lawyers. But of the rest: yes, I believe Epstein or Randy Barnett or Miguel Estrada would be filibustered. Estrada was filibustered for elevation to the circuit court; that's why he's not there now.
In the world we actually inhabit: Robert Bork was defeated; Clarence Thomas scraped by after hearings that were ugly and brutal even before the Anita Hill story broke, and had enough Democratic opposition to sustain a filibuster; Alito was opposed by enough Democrats to sustain the filibuster that was attempted, though enough his Democratic opponents voted for cloture that the vote was held; and Rehnquist's elevation to Chief Justice was opposed by a majority of Senate Democrats (though not quite 40).
By contrast, Ruth Bader Ginsburg, who should probably count as precedent for the "liberal hero" model, was confirmed 96-3. I believe that Sotomayor was the first modern Democratic nominee to be opposed by a majority among Senate Republicans.
Republican Presidents have responded to this reality in just the way Lithwick says only Democrats have had to: by trimming their sails and appointing or trying to appoint people with thin paper records (David Souter, John Roberts, Harriet Meyers). The popular impression is that this is part of why Michael McConnell stepped down from the federal bench; though he's a very highly-regarded jurist, he was probably never going to be elevated to the Supreme Court by risk-averse Republican presidents. Likewise, no one ever mentioned Richard Posner on Supreme Court shortlists during the Bush administration, even though he has a claim to being the most influential living American judge; everyone knew that Bush would never appoint someone with that thick and controversial a record, no matter how "bright a light" everyone agrees that he is. See also: Alex Kozinski.
I don't get what Lithwick was thinking. "Richard Epstein would plausibly be appointed, would sail through confirmation hearings, and would not be filibustered" as a baseline for comparison about the fate of liberal law professors doesn't pass the laugh test, and she knows enough to know that.