Legal Commentary

A Few Thoughts on the Mid-Term Election Results

By Orin Kerr

In no particular order:

1. What?s the impact of the changing composition of the Senate on the judicial confirmation process? Presumably this means a tougher road ahead for more controversial lower-court nominees, but it?s not clear to me how the details will work out there. If Obama gets another Supreme Court nomination in the next two years, the extra GOP Senate seats really change the calculus: Whereas the Dems previously had the votes to confirm pretty much anyone, a nomination to fill a future Supreme Court vacancy in the next two years would genuinely be in doubt. Putting the pieces together, yesterday?s election results are good news if you?re Merrick Garland but bad news if you?re Goodwin Liu.

2. The award for New Member of the Senate Who Would Be Most Likely To Blog at the Volokh Conspiracy ? I know, it?s a very prestigious award ? goes to Mike Lee, who was elected to the U.S. Senate from Utah. Mike clerked for Justice Alito, both on the Third Circuit and Supreme Court, and he was both an AUSA and a lawyer at Sidley and later Howrey. (Perhaps he?ll be the first U.S. Senator to guest-blog here?) He also wins the award for First Senator-Elect to Have Argued a Case in My Computer Crime Law Casebook ? I know, that award is very prestigious, too ? for having argued a commerce clause challenge to the federal child pornography statutes, United States v. Jeronimo-Bautista (see pages 547?52). Come to think of it, I think he will also be the first U.S. Senator who is younger than I am (about 48 hours younger ? kids today).

3. Christine O?Donnell did much better than I expected when she received the GOP nomination. O?Donnell only lost to Coons by about 17%, which was a much narrower gap than when she lost to Joe Biden in the 2008 Senate race. It?s interesting to ponder how the dynamic of the Senate would be different if Mike Castle had won the GOP nomination, as he very likely would have trounced Coons. (Castle might have won as a write-in, too, although he opted not to try ? appropriately, I think.) But so it goes.

4. The good news for Christine O?Donnell is that her Senate loss probably has made her career. She can now publish a book about her experience that no doubt will be a huge seller, and she can charge some serious speaker fees to speak to conservative groups. She?ll now make more money, and have more fun, than she would have had in the Senate. That?s not a bad outcome.

5. I suppose it?s time to ramp up the press statements about whether this is a mandate for the GOP, with positions reversed from 2008, which in turn were reversed from 2004? Ah, politics.

6. As Nate Silver points out, ?Only 460 days to the Iowa caucuses!?

Full post as published by The Volokh Conspiracy on November 03, 2010 (boomark / email).