Throwing in the Towel
Since we have nothing better to do until a Supreme Court justice actually retires than speculate about possible replacements, I thought I'd mention one prominent circuit judge that has probably successfully removed herself from the running. Judge Edith Jones of the Fifth Circuit is widely mentioned as a potential nominee if Bush gets to appoint a justice (click some of the links in my prior post for what I mean).
At least until a couple weeks ago.
Jones wrote the opinion for a unanimous panel in McCorvey v. Hill, a case brought by the original plaintiff in Roe v. Wade, who has since had a change of heart and seeks to nullify the case. The court denied her requested relief. Jones then took the unusual step of concurring in her own opinion, writing an additional view advocating for the re-evaluation of Roe and everything for which it stands. Needless to say, it was quite odd, and garnered an awful lot of attention from the media and bloggers alike. In my opinion, it was a baffling move. And, as one current 5th Circuit clerk remarked to me last week, "No one knows what that had to do at all with the case."
Seeing as though abortion is the hottest of all hot-button judicial issues, and often cited as a "litmus test" for nominees, most judges with their sights set on the high court try to stay away from saying anything publicly about their views, let alone publishing an opinion railing against it. As the Greedy Clerks pointed out the day after the opinion was released, this may be the proverbial nail in Judge Jones' coffin (start here).
As Chris Geidner notes at the blog De Novo, this represents a marked diversion from Jones' attitude when she was being considered by Bush I for the seat that eventually went to David Souter. At that time, Judge Jones said that one of her goals as a judge was "not to grandstand from the bench. I like to write to the point and on the issue that is at hand."
Riiiiiiight. Think Luttig and Wilkinson put her up to it to get her out of their way?