Nomination Nation

News, views, and gossip about judicial appointments. Please send your tips to Pozinski [at] gmail [dot] com or Senator [dot] Spectator [at] gmail [dot] com.

Friday, October 29, 2004

Rehnquist's return

Chief Justice Rehnquist has left Bethesda Naval Hospital. He is expected to be back at work on Monday, when oral arguments resume.

We here at Nomination Nation wish him a speedy recovery.

"Enormous Challenges"

Accoring to ex-Solicitor General Walter Dellinger, "There has never been a time when the chairman of the Judiciary Committee has assumed such importance as it is expected to have during the next four years." As I first pointed out in this post, that chairman will likely be Sen. Arlen Specter (R-PA). You can read more about Specter, the uncertainty of his chairmanship, and the impact it is having on his reelection campaign, in this article from today's Philadelphia Inquirer.

Thursday, October 28, 2004

A Major Recess Appointment

This Roll Call article (subscription required) ledes:

Some analysts believe President Bush could make as many as three Supreme Court appointments if he wins a second term. But could he make one if he loses?The revelation this week that Supreme Court Chief Justice William Rehnquist has been hospitalized for cancer treatment raises one more intriguing prospect in an election season already awash in intriguing prospects.

If Bush fails to win re-election, he may yet be presented with a vacancy to fill on the high court - and a tempting chance to make history before leaving office by using his authority to make recess-appointments.

Nomination Nation doubts that Bush would make a recess appointment. However, if you have reason to believe otherwise, please email Pozinski or Senator Spectator.

Monday, October 25, 2004

We Wish the Chief Well

From the Greedy Clerks we learned this awful news:

U.S. Chief Justice William Rehnquist, 80, has been diagnosed with thyroid cancer and is in the hospital after undergoing a tracheotomy, the Supreme Court said in a statement on Monday.

Nomination Nation will temporarily abstain from discussing who might fill the potential vacancy with the hopes that the Chief mades a swift recovery.

Update (from Senator Spectator): We also note that two other justices have previously undergone successful surgery to treat cancer. Sandra Day O'Connor survived breast cancer surgery sixteen years ago to the day that the Chief entered the hospital, and Ruth Bader Ginsburg survived colon cancer about five years ago. There's absolutely no reason to think that Chief Justice Rehnquist won't make a similar recovery and be back on the bench in no time.

Friday, October 22, 2004

How we became a nomination nation

The New York Times has an article exploring the history of the current fight over nominations.

First, the new president and his aides turned to the Federalist Society, a
conservative lawyers' group, to help select candidates. Of Mr. Bush's first
batch of nominees, 8 of 11 were proposed by the society. There could have been
no clearer signal that Mr. Bush intended to follow the pattern set by his father
and President Ronald Reagan of shifting the courts rightward and reaping the
political benefit of pleasing social conservatives.

Then, at a weekend retreat in April 2001, Democratic senators adopted an aggressive new strategy in dealing with judicial candidates. Under Mr. Bush's Republican predecessors, the Democrats believed they could block only candidates with egregious faults. But that weekend, two prominent law professors and a women's rights lobbyist urged the senators to oppose even nominees with strong credentials and no embarrassing flaws, simply because the White House was trying to push the courts in a conservative direction.
Nothing really earth shattering, but a good primer on where we've been and where we might be headed.

Cheat Sheet

I know you may be getting sick of these, but a reader emailed me another article predicting potential Supreme Court nominees of both Bush and Kerry. However, this one, by Stuart Taylor at the National Journal, is the most comprehensive review to date. Taylor provides background information on each candidate (11 for Kerry; 10 for Bush) as well as analysis of the pros and cons regarding possible confirmation. Print this out and keep it handy -- you can use it as a cheat sheet when a justice retires and the speculation begins for real.

Kathleen Sullivan appears again as a possible Kerry nominee, perhaps proving (as the comments to this post indicate) that she may be better known than I gave her credit for. One person conspicuously absent from the Bush list: Judge Edith Jones. Maybe we were right that she shot herself in the foot.

Update: Courtesy of the NY Times, you can now put a face to the names of some of those mentioned as potential nominees.

Thursday, October 21, 2004

O' O' O' O' O' O' O' O' O'Connor

Professor Tung Yin on the possibility of a Court full of Sandra Day O'Connors:

The law would not be stretched to contemplate results suggested by either "conservative" or "liberal" judges. The end result might be the same, but it would be less satisfying.

One Justice O'Connor on the Court is a good thing, especially if she is the deciding vote on a lot of issues and can moderate the extreme swings of her colleagues. But too much Justice O'Connor can be a bad thing.
Read the rest here.

Tuesday, October 19, 2004

When There are Only Nine, Each Justice Matters

The official Blog of the American Constitution Society has introduced a feature entitled "Clarence Thomas' America." Here is its lede:

Stare decisis is one of the most well established principles in the law. Simply put, it means that courts will not overturn established precedent without an extraordinary reason to do so. It is also a doctrine not held sacred by all nine Justices. In Justice Antonin Scalia's words, Justice Thomas "doesn't believe in stare decisis, period."

Because Justice Thomas does not feel bound by precedent, his opinions often call for substantial shifts in the law. These next two weeks, ACSBlog will explore several of these cases, explaining the history behind Thomas' disfavored doctrines, and suggesting how America would be different should Thomas' vision ever become law. We hope these pieces will be helpful in understanding the man President Bush calls a "model" Supreme Court Justice.

The first post, entitled "In Clarence Thomas' America, There Is No Negative Commerce Clause" can be found here. The second post, "In Clarence Thomas' America, There Is No Campaign Finance Regulation" is here.

Ed's note: Nomination Nation is non-partisan and does not endose or adopt the views of any organization.

Monday, October 18, 2004

State of Affairs

The Alliance for Justice (a liberal-leaning non-profit advocacy group) has this report on the status of President Bush's judicial nominees. The report notes two interesting facts that I did not previously know: (1) we currently have the lowest judicial vacancy rate in a decade (doesn't sound like an "emergency" to me); and (2) the federal judiciary is now made up of a majority (55%) of Republican appointees. For more interesting tidbits, check out the full report.

(link via How Appealing)

Crystal Balls

Today's issue of The Recorder contains two articles on potential Supreme Court nominees -- one for Bush, one for Kerry.

The Bush picks are largely unsurprising (Luttig, Wilkinson and Gonzales have been on everyone's short list for years). The author (a San Francisco IP lawyer -- not sure how he's qualified to predict things like this -- but then again, who am I?) also mentions two Bush Justice Department officials, former SG Ted Olson and former Deputy AG Larry Thompson as possible nominees. Both are interesting picks, but Olson, after barely sneaking by the Senate before, and Thompson, a Thomas-like conservative black lawyer, may face harsh confirmation battles.

The Kerry picks are a bit more interesting. Judges Tatel and Sotomayor, and former SG Drew Days, have all been mentioned before. But the last two -- California Chief Justice Ronald George (a Republican) and former Stanford Law School Dean Kathleen Sullivan (a relative unknown in legal and political circles) -- seem to come from left field. Given the fact that nominees often come out of nowhere to surprise a lot of people, however, these authors (appellate attorneys from California) might be on to something.

Justice is Blind, But Well-Connected

The Center for Investigaive Reporting (a non-profit, non-partisan, news research organization) has launched a new website, called "Courting Influence," which tracks Bush's judicial nominees and their ties to special interests and corporations. In addition to providing resources on the federal courts and the nomination process, the site also includes a searchable database of all of Bush's nominees to the federal bench which provides the questionnaire and financial disclosure statements given to the Senate. I haven't had a chance to play around a lot with this site yet, but it looks like a very interesting resource. Leave a comment if you see anything that catches your eye.

(link via How Appealing)

Thursday, October 14, 2004

Recess: Not just your favorite school subject anymore

Via Southern Appeal, we learn that the Eleventh Circuit has ruled (in an opinion you can access here) that President Bush's recess appoinment of William H. Pryor, Jr. to that court did not exceed his constitutional powers. See Art. II, sect. 2, cl. 3.

The issue is not over, though. This case will likely result in a cert petition to the U.S. Supreme Court, which may or may not decide to wade into this contentious (and very political) issue.

What the Court will do with it is anyone's guess. But the conservative justices' positions are less certain than one may think. As Professor Rappaport -- a self-proclaimed supporter of President Bush -- explains in a recent paper, an originalist view of the Constitution actually weighs against the constitutionality of recess appointments for Article III judges.

Stay tuned.

Tuesday, October 12, 2004

More Speculation About Bush/Kerry Supreme Nominees

This article offers some speculation about which judges Bush and Kerry might nominate to fill any Supreme Court vacancies:

"For George W. Bush, the buzz about potential nominees includes J. Harvie Wilkinson and Michael Luttig, both federal appeals court judges on the Fourth Circuit in Virginia; Emilio Garza, an appeals court judge on the Fifth Circuit in Texas; and Samuel Alito, a Third Circuit appeals court judge in New Jersey. Also mentioned are White House Counsel Alberto Gonzales and Utah Sen. Orrin Hatch."

"For John Kerry, speculation is that he might tap Sonia Sotomayor, a Second Circuit appeals court judge in New York. Also mentioned are David Tatel and Merrick Garland, both federal appeals court judges on the D.C. Circuit in Washington; Sandra Lynch, a First Circuit appeals court judge in Boston; and Walter Dellinger, a Duke University law professor and acting solicitor general in the Clinton administration."

Thursday, October 07, 2004

Bush v. Kerry?

Could Colorado be the next Florida?

Chris from Politics Blog says, "Yes,"

A proposed amendment to the Colorado Constitution would award that state's 9 electoral votes proportionally based on percentage of the popular vote (instead of winner take all). It seems likely to pass, and will take effect on November 3rd (the day following the election). It is intended to apply to this year's vote in the electoral college.

Chris suggests that Colorado's amendment, if enacted, could be vulnerable to state and federal constitutional and statutory challenges. Although he does not answer the legal questions involved (he's a political pundit, not a tea leaf reader!), he certainly highlights the legal issues that will arise if the Colorado initiative passes.

It could be an awful mess, and if ever we needed a federal court to relaxen its justiciability requirements, it's now.

You can read the full post here.

Judicial Friendships

Those who are confirmed may soon find that their friends seek ways to influence and manipulate them. One such judge who may need to reconsider some of his friendships is Justice Anthony M. Kennedy.

Bush v. Gore caused us to challenge our assumptions about a lot of things. Did courts create the law to serve their political ends, or to impress the editors of the New York Times? For years conservatives explained Roe v. Wade, Miranda v. Arizona, and Mapp v. Ohio as "made up law" designed to impress the cultural elite. And about twenty years ago they formed a society to combat judicial activism.

The Federalist Society proudly proclaims its motto "that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." Many of us felt that in Bush v. Gore, through judicial fiat, the Supreme Court did not say who the President "was" but who "it should be."

A recent Vanity Fair article on Bush v. Gore, partially confirmed our suspicions. Through unprecedented access to former clerks, we learned some harrowing truths about the judicial process. But Nomination Nation is not here to re-analyze the case. We're here to question whether one of its authors should remain friends with his supposed "supporters." In the VF article we learn:

[Conservatives] had never forgiven [Justice Kennedy] for his votes to uphold abortion and gay rights, and doubted both his intelligence and his commitment to the cause. Convinced he'd strayed on abortion under the pernicious influence of a liberal law clerk--a former student of the notoriously liberal Laurence Tribe of Harvard Law School, who was representing Gore in the case--they took steps to prevent any reoccurrences. Applicants for Kennedy clerkships were now screened by a panel of right-wing stalwarts.

One of these alleged stalwart was one of Justice Kennedy's former clerks - Miguel Estrada.

According to two doomed applicants:

Both [of whom] were unwilling to be identified by name for fear of reprisals. The first told me: "Since I knew Miguel, I went to him to help me get a Supreme Court clerkship. I knew he was screening candidates for Justice Kennedy. Miguel told me, 'No way. You're way too liberal.' I felt he was definitely submitting me to an ideological litmus test, and I am a moderate Democrat. When I asked him why I was being ruled out without even an interview, Miguel told me his job was to prevent liberal clerks from being hired. He told me he was screening out liberals because a liberal clerk had influenced Justice Kennedy to side with the majority and write a pro-gay-rights decision in a case known as Romer v. Evans, which struck down a Colorado statute that discriminated against gays and lesbians."

I also interviewed a young law professor and former Justice Department attorney who told me a very similar story. "I was a clerk for an appeals court judge," the professor told me, "and my judge called Justice Kennedy recommending me for a clerkship with him. Justice Kennedy then called me and said I had made the first cut and would soon be called for an interview. I was then interviewed by Miguel Estrada and another lawyer. Estrada asked most of the questions. He asked me a lot of unfair, ideological questions, a lot about the death penalty, which I told him I thought was immoral. I felt I was being subjected to an ideological litmus test. Estrada was being obnoxious. He was acting like it was his job to weed out liberal influences on Justice Kennedy. I was never called back by anyone." (emphasis added)
I have no position on whether it's right or wrong for justices to choose ideological clones. But I do know friendship. Friendships are based on respect and love, not disdain and manipulation.

The implication from the evidence above is unseemly. Does the Federalist Society and Miguel Estrada think so lowly of Justice Kennedy's talents that they must protect him from 26-year old liberals? As someone who respects Miguel Estrada and the Federalist Society (I am a member), I sure hope not.

An explanation - or an apology - would be appropriate. Thus, in the interest of a equal time, and in the interest of discovering the truth; anyone who thinks the above criticism is overly harsh or unfair, can email me. I will publish your response - anonymously, if you prefer - in full. The only caveat is that you must have personal knowledge of Justice Kennedy's hiring practices. We don't do hatchet jobs at Nomination Nation. We just want the facts, ma'am.


It will still take 60 votes to get a controversial judicial nominee through the Senate. In this ruling, the U.S. District Court for the District of Columbia turned away a constitutional challenge to the tactic of filibustering judicial nominees filed by Judicial Watch. Judge Kollar-Kotelly did not reach the merits of the challenge, however, because she found that Judicial Watch did not have standing to bring the suit.

Full report from Lyle Denniston at SCOTUSblog here.

Judicial Watch's briefs laying out their constitutional argument (imposing a supermajority requirement contravenes the Article II appointments process) here.

Wednesday, October 06, 2004

Forget New Judges, How About Whole New Circuits?

Yesterday the House of Representatives voted to split up the Ninth Circuit and create brand new Twelfth and Thirteenth Circuits.

The current Ninth Circuit would represent California, Guam, Hawaii, and the Northern Mariana Islands and keep its headquarters in San Francisco and L.A.; the new Twelfth would cover Arizona, Nevada, Idaho, and Montana and be based in Vegas and Phoenix; and the new Thirteenth would represent Alaska, Oregon, and Washington and sit in Portland and Seattle.

The proposal to split the circuit was added by an amendment to a bill increasing the number of federal judgeships. By my count, the new design would create 5 new appellate judges in the former Ninth Circuit. Currently the Ninth has 28 authorized judgeships, while the new plan would leave 19 in the Ninth, place 8 in the Twelfth and 6 in the Thirteenth, for a total of 33. (Note: the bill also adds 4 judges elsewhere -- 1 to the CA1, 2 to CA2, and 1 to CA6.)

As this news item notes, the Senate is strongly opposed to the plan, so it is unlikely to become law. Depending on who you ask, this will either eliminate the liberalness of the Ninth Circuit, by splitting it up and creating new judgeships (to be appointed by the next president -- Bush?), or enhance it, by isolating California, where the hippies are.


For more on creating new judgeships in general, check out this post.

Tuesday, October 05, 2004

Senate Republicans backed off cloture votes in September

This article notes that Republican Senators backed off their previous strategy "to brand Democrats as obstructionists by scheduling nine cloture votes [in September] on President Bush’s federal appellate-court nominees."

In my view, this reflects the reality that any voters who are outraged over the Democrats' obstructionist tactics are likely to be died-in-the-wool Republicans anyway. I doubt that many "swing voters" will be influenced by this issue.

The Specter of Next Year's Judiciary Committee

We have discussed the possibility of President Bush or Senator Kerry having the opportunity to nominate several Supreme Court justices in the next four years (in addition to numerous lower federal court judges), but an equally important and interesting question is what will happen in the Senate, the body with the last word on judicial confirmations. In a post last week I linked to Chris's predictions for the make-up of the Senate after November's elections. Although some polls and pundits think there's a chance that the Democrats will take back control of the Senate, Chris (and most others) believes it will remain Republican, albeit still lacking the votes to end any filibuster that may take place.

If the Republicans retain control, we will have a new Chairman of the Senate Judiciary Committee, because Orrin Hatch (R-UT) is completing his eighth and final year as required by party term limits. Next in line is Arlen Specter (R-PA) who is currently coasting to re-election for a fifth term. That prospect makes many Republicans uneasy.

Specter, a moderate Republican, is probably most famous for helping to derail the nomination of Judge Robert Bork to the Supreme Court back in 1987 (side note: Bork apparently holds a grudge -- he endorsed Specter's rival, conservative Pat Toomey, in the primaries). Specter is pro-choice, and has repeatedly stated that he supports the Court's decision in Roe v. Wade. Specter has recently become the Justice O'Connor of the Judiciary Committee, casting the crucial swing vote in contentious hearings such as the confirmation of William Pryor. Needless to say, the conservative right is not really excited about the prospect of having Specter deciding who gets a vote and influencing whether and when certain nominees get approved. (By contrast, if Republicans retain control of the Senate and Kerry wins the presidency, we may see a somewhat less hostile process with Specter in control.)

There's not much the Republicans can do, however. As this article notes, their only options are to try to buy out Specter by offering him a chairmanship of another committee, or completely break tradition and award the Judiciary Committee to a less senior member. Neither of these options seem likely. Specter is already a less-than reliable vote for the Republicans, and further angering and alienating him could cause the party some serious problems in a closely-divided Senate.

Bottom line: The presidential race isn't the only thing worth watching this fall if you are interested in future nominations to the federal bench. There will be a lot of fun stuff going on behind the scenes, and NN will be there to keep you informed.

Friday, October 01, 2004

"In No Hurry"

Chief Justice William H. Rehnquist turns 80 today. And, according to the Associated Press, "he remains invigorated by the job and appears in no hurry to give up the title of the nation's top judge."

The article goes on to mention that he has hired clerks through 2006 (a few of whom are friends of Nomination Nation, and certainly hope retirement won't prohibit them from becoming members of "the elect"), and that he made no mention of stepping down to any of his past, current, or future clerks.

Of course, the article also cites neutral law professors who say it's about time for him to step down, but what do they know?

We'll keep you posted on rumors of the Chief's departure when and if they happen. You keep us posted as well.

(link via How Appealing)

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