Article III term limits?

The Washington Post has the story:

Six in 10 Americans say there should be a mandatory retirement age for Supreme Court justices, according to an Associated Press poll.

People over 65 were among those most likely to favor mandatory retirement, according to the poll conducted for the AP by Ipsos-Public Affairs.

The question on retirement mentioned no specific retirement age. Lifetime appointment of Supreme Court justices is dictated by the Constitution and could be changed only by an amendment.

"The justices hold office year after year," said Opal Bristow, an 84-year-old Democrat and retired teacher who lives near San Antonio. "Some of them are old codgers who need to get out of the way and let the younger folks with fresh ideas come in."

The article also has some reaction to a nominee who would overturn Roe v.
Wade:

The survey found that 59 percent of respondents said they favor choosing a nominee who would uphold Roe v. Wade, while 31 percent wanted a nominee who would overturn the ruling.

Chief Justice update

Via the New York Times:

Chief Justice William H. Rehnquist, who missed the Supreme Court's November argument session while being treated for thyroid cancer, will be absent for the December session as well, the court announced on Friday.

Kathleen Arberg, the court's public information officer, said Chief Justice Rehnquist was continuing to receive chemotherapy and radiation treatments as an outpatient and was meeting with his law clerks and court officials at his home. Ms. Arberg said she had no information on when the 80-year-old chief justice might return to the court.

We here at Nomination Nation wish the Chief Justice a quick and full recovery.

Congress gives federal judiciary a raise

In a move which should temporarily ameliorate the federal judiciary's budget crisis, Congress has granted the federal courts a 4.3 percent budget increase over the previous fiscal year.

Pickering to resign soon; future remains unclear

Charles Pickering's recess appointment to the Fifth Circuit Court of Appeals is coming to an end, and he will soon be forced to take retirement. However, it remains unclear whether President Bush might grant Pickering a second recess appointment and it is further unclear whether Bush might nominate Pickering once again and resume the hearing and confirmation process once again. In the previously linked article, Pickering was noncommital as to whether he would accept such a nomination.

Senate Confirms Texas District Judge

The Senate has confirmed Micaela Alvarez to serve as district judge for the Southern District of Texas.

The Honorable Ellsworth A. Van Graafeiland (1915-2004)

Second Circuit Judge Van Graafeiland passed away Saturday from a heart attack and related complications. A well-respected and dedicated jurist, a tireless teacher, and a loving family man, Judge Van Graafeiland will be missed by all those who had the privilege of interacting with him.

We here at Nomination Nation offer our thoughts and prayers to his family, his colleagues, and everyone whose lives he touched.

You can read an obituary here in his hometown newspaper [link via How Appealing].

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Judge Van Graafeiland took senior status in 1985, so his passing does not create a vacancy on the Second Circuit.

Senate Confirms Mississippi District Judge

Keith Starrett has been unanimously confirmed as district judge for the Southern District of Mississippi.

Thomas to the top, Olson to the Court?

Robert Novak reports that Justice Thomas is the favorite to be elevated to Chief. He also adds a new name to the short list of prospective Justices. Former Solicitor General Ted Olson, 63, is being considered for Thomas' vacancy. There is also a movement to make Olson the new Chief Justice.

What are Olson's chances? There are younger (Judge Michael Luttig and Judge John Roberts are 50 and 49, respectively) and equally conservative choices. If Novak is right, 63 year old Olson is the oldest person being considered by President Bush (Judge Harvie Wilkinson is 60). The choice wouldn't score any demographic points (as would Judge Emilio Garza, soon to be Attorney General Alberto Gonzales, or Justice Janice Brown). Safe money should remain on someone else.

Even Swap

"Milbarge" at the blog Begging the Question has these insightful thoughts on how things wouldn't change much if Judge Wilkinson (CA4) were nominated to replace Chief Justice Rehnquist (when and if he were to step down).

Specter Set to Chair Judiciary, Equivocal on "Nuclear Option"

Judging from this article, it appears that Senator Arlen Specter's (R-PA) festival of contrition is coming to an end, and he seems to have successfully beat back conservative challenges to his becoming chairman of the Senate Judiciary Committee.

Nevertheless, his position on the most momentous issue affecting judicial nominations- the so called "nuclear option," remaing unclear. The article provides an intriguing indication, however, that this moderate Republican Senator may have been prodded into supporting the option. Specifically, the article notes that "Specter's draft statement says there are precedents that could uphold a change in Senate rules to make it clear that only majority support was needed for a judge's confirmation."

While far from an explicit endorsement of the nuclear option, one must wonder whether Specter's promise not to obstruct the exercise of the option was a prerequisite for his gaining the support of conservative Senators such as Trent Lott.

Lott says he has the votes for "nuclear option"

In this article, Senator Trent Lott (R- MS) claims that he has the necessary votes to implement the "nuclear option." Moreover, Lott indicates that, in his view, Republicans should not wait until Democrats resume their filibusters of judicial nominees to change Senate rules permitting such filibusters.

Supreme Court Appointments Panel

Tom Goldstein posted this annoucement at SCOTUSBlog:

For those of you who are in DC and are interested in the discussions regarding a possible Supreme Court nomination in the near-term, American University's Washington College of Law will hold a lunch-time panel on that issue this Thursday from 12:00 to 1:30 in Room 603. According to the announcement (noted here), "pizza will be served." You can contact Steve Wermiel (swermiel@wcl.american.edu) at the law school for further details.

Two Nominations

From the AP comes this story:

President Bush on Tuesday nominated two individuals to replace retiring jurists on federal courts in the Washington area.

Bush nominated Jennifer M. Anderson for a 15-year term as associate judge of the Superior Court of the District of Columbia, replacing Steffen W. Graae. ***

Bush also nominated A. Noel Anketell Kramer for a 15-year term as associate judge of the District of Columbia Court of Appeals, replacing John Montague Steadman.

Sen. Reid Concedes Dems Can't Stop "Nuclear Option"

This article contains an interesting (indirect) quote from Senate Minority Leader Harry Reid (D- Nev.) in which Reid concedes that there is "little Democrats could do to prevent Republicans" from changing Senate rules permitting the filibuster of judicial nominees. In fact, Reid's only "threat" in this regard was to note that Republicans might one day find themselves in the minority and unable to block Democratic nominees. This should put to rest any doubts as to whether the "nuclear option" is viable as a matter of Senate rules and procedures. The relevant considerations for the Republicans, as alluded to by Reid, appear to be political.

For Life

Former Solictor General Theodore Olson told a group at the Federalist Society Annual Convention "The presidential election was merely about the next four years. A Supreme Court justice is for life. It will not be pretty." The AP story covering Mr. Olson's talk is here.
(Hat tip: SCOTUSBlog)

Senator Frist Calls Nuclear Option "Viable"

In this LA Times article, Senator Frist is quoted as follows regarding the "nuclear option"

"And I think [that] clearly becomes a viable, viable option if we see a minority denying the majority the opportunity to express advice and consent."

This statement by Frist is the clearest indication yet that the upcoming Congressional session may be the most contentious (and exciting) one in recent history, as far as judicial nominations are concerned. Democrats have threatened to shut down the Senate as a whole if the threat to "go nuclear" is carried out, but can they really risk being seen as obstructing the entire business of the Senate?

Senator Hatch pushing Griffith nomination to the DC Circuit

The folks at the Committee for Justice Blog posted this news release from the the People for the American Way (PFAW) which notes that outgoing Senate Judiciary Committee chairman Orrin Hatch has scheduled a hearing for this coming Tuesday, apparently to deal with the nomination of Thomas Griffith, General Counsel of Brigham Young University, to the U.S. Court of Appeals for the D.C. Circuit. Griffith appears to have few fans at PFAW, who assert that he "apparently has been engaged in the unauthorized practice of law in Utah for the past four years" based upon his alleged failure to pay bar dues. Moreover, fans of womens' collegiate air rifle will be dismayed to learn that Griffith proposed radical changes to Title IX during his time on the Commission on Opportunity in Athletics.

Clear Sailing For Two North Carolina Judicial Nominees?

As noted in this article, the election of Richard Burr (R - NC) to the US Senate will very likely mean that the previously stalled nominations of three North Carolina judges will be brought before the Senate Judiciary Committee.

Previously, Senator Edwards had declined to return so-called "blue slips" indicating his approval of the three nominees from his home state, thus preventing them from coming before the Senate Judiciary Committee. Edwards' Republican replacement Burr has no such reservations about Bush's three nominees, however, and it appears highly likely that all three nominees will be quickly confirmed by the Republican-controlled Judiciary Committee.

It seems highly likely that district court nominees Bob Conrad and James Dever will be confirmed with little or no opposition from Democratic Senators, who have, in recent years, concentrated their attention on circuit court nominees. Democratic Senators will likely scrutinize U.S. District Judge Terrence Boyle's nomination to the Fourth Circuit Court of Appeals much more closely. The conservative Fourth Circuit occupies a special place of loathing in the hearts of many liberals, and Judge Boyle, a former aide to ex-Senator Jesse Helms, has evoked predictable criticism from left-leaning judiciary observers.

Judge Boyle may have forgotten that he is still a nominee for the Fourth Circuit, considering that he was first nominated to serve on that court by Bush- George HW Bush, that is - in 1991! Nomination Nation strives for impartiality, but it cannot help but be moved by Judge Boyle's lengthy judicial odyssey, although it seems doubtful that Ted Kennedy and Co. will be similarly moved. Stay tuned.

An Article on Nomination Nation

Today the ABA Journal E-Report published an article about Nomination Nation entitled "SCOOPING UP THE JUDICIAL DISH: New Blog Wants to Be the Web Source for News on Confirmation Process." Ari L. Kaplan, the article's author, was a pleasure to speak with.

Heady days at Federalist Society

This Philadelphia newspaper article describes the predictably upbeat mood among Federalist Society members.

Frist Warns Democrats About Filibusters

This New York Times article makes it seem even more likely that Senate Republicans are prepared to go to war over Bush's filibustered nominees. However, Senator Frist didn't specifically threaten to "go nuclear," and the Republicans may only intend to use the threat of doing so to ensure that Democrats are more docile this time around.

Is Gonzales out of the running?

White House Counsel Alberto Gonzales was nominated by President George W. Bush to succeed John Ashcroft, who resigned.

Was it a bittersweet day for Gonzales? Prior to this, he was the focus of heavy speculation as a future Supreme Court nominee.

At a minimum, his selection as Attorney General has to limit his chances of being chosen to fill a high court vacancy.

It is widely speculated that the President would like to nominate a Hispanic to the Supreme Court.

Could Gonzales' loss (if becoming Attorney General can ever be described as a "loss") be the gain of Emilio Garza or Miguel Estrada?

Lott endorses "nuclear option" and "sooner rather than later"

This article from The Hill contains an on-the-record quote from Senator Lott that he supports changing Senate rules to permit 51 Senators to confirm a judicial nominee. And Lott notes that he supports changing the rules "sooner rather than later." This is the most explicit indication I've seen so far that the "nuclear option" is very much on the table, at least for some Republicans. Senator Lott's views on this issue may be more relevant than those of the average Senator, considering that he is the chairman of the Senate's Rules and Administration Committee.

Lott has always been extremely intersted in seeing Charles Pickering confirmed to the Fifth Circuit and this may motivate his push for this rule change. Incidentally, one must wonder why the opposition to Pickering among democrats has been so fierce. Pickering has always been a rather moderate judge in his rulings (why do you think mega-trial lawyer Dickie Scruggs supports his nomination?), and his age ensures that he won't be on the Fifth Circuit very long regardless. Indeed, he has openly talked about retiring. That being the case, it appears that he is more of a symbolic target for Democrats, in light of certain race-related skeletons in his closet.

Judiciary committee seen as "tinderbox"

This article from the Washington Times discusses how the stage is set for very acrimonious hearings in the Senate Judiciary Committee, which will need to confirm a new attorney general, and quite likely, a Supreme Court justice in the near future. The article also seems to hint that Bush will continue to push for confirmation of his filibustered nominees and that Senator Specter has apparently survived a push by some conservatives to prevent him from becoming the next committee chairman.

Academics on the Confirmation Process

The Chronicle of Higher Education has this article discussing the delays common to the confirmation process. It begins:

When Kenneth W. Dam, a professor at the University of Chicago Law School, received word in January 2001 that he would be nominated to serve as deputy secretary of the treasury, he was delighted. A former top official in the Reagan administration, he viewed government work as "a great privilege" and was eager to begin.

But it wasn't that easy. First Mr. Dam had to fill out a bevy of forms and questionnaires from the White House Office of Government Ethics, the Federal Bureau of Investigation, and the Senate Finance Committee. At one point the White House lost his file for a week. Then came the FBI's background investigation, which took until March, and a confirmation hearing before the Finance Committee. Finally, his nomination was sent to the Senate.

Senate Republicans Considering Changing Filibuster Rules?

This article raises the possibility that the Senate will change its rule requiring 60 votes to defeat any filibuster of a judicial nominee.

It's not clear if this is merely speculation, but it is clear that this is a more attractive possibility for Republicans than it was before the election. Before the election, the Republicans had to fear that, if they changed the filibuster rules, they might lose the presidency and also lose sufficient Senators to put them in the position of a minority opposing a Democratic president. In such a situation, the Republicans would certainly like to have the filibuster at their disposal to block more liberal nominees. Now, however, changing the filibuster rules would give the Republicans, at the very least, four years to shape the federal courts as they alone see fit. Such a power grab may prove irresistible to the Republicans in the Senate, although it may well prove to be counterproductive in the long run.

Note: after posting originally, I found this and this article which also discuss the possibility of the Republican Senators changing the filibuster rules.

Since it definitely appears that changing the filibuster rules is a strong possibility, it may be helpful to review an old article discussing the issue of whether the use of filibusters to block judicial nominations is even constitutional. In addition, this interesting article discusses the procedural and substantive difficulties the Republicans would face in seeking to change the Senate rules permitting the filibuster of judicial nominees. The latter article notes that, at the time it was written, it would be difficult to get all 51 Republican Senators to sign off on the plan, but finding 51 such Senators would obviously be much easier today.

Republicans may use filibustered judges as political hammer

This article seems to suggest that Republican Senators will urge President Bush to re-nominate his filibustered judicial nominees. It seems unlikely that a democratic minority led by Sen. Reid will be any more receptive to Pickering et al than they were under Daschle, considering that Sen. Reid was quite outspoken on this subject in his capacity as minority whip. But Senator Allen's comments make it clear that the Republican Senators see an opportunity to score political points on this issue, regardless of whether the judges in question are actually confirmed by the Senate. And let's be quite clear: the average Republican Senator is far more interested in gaining additional Republican Senators than whether Priscilla Owen actually sits on the Fifth Circuit Court of Appeals.

Judge Pickering, for his part, indicated last night that he would be welcome confirmation by the Senate, but that he "not holding his breath" in light of his prior experiences in seeking confirmation.

Indeed

Howard Bashman states the obvious:

As matters now stand, it appears certain that President Bush has won reelection, and Republicans appear poised to control a total of 55 seats in the U.S. Senate. At least two Justices serving on the U.S. Supreme Court are likely to retire from the Court before the end of President Bush's second term (the Chief Justice and Sandra Day O'Connor), and more vacancies are always a possibility.

Assuming that Republicans emerge with 55 seats in the Senate, it will be very interesting to see whether the Senate's new Democratic leadership will continue to use procedural maneuvers, such as filibusters, to block [certain] judicial nominees.... [W]hile the Senate's new composition may move Republicans closer to defeating judicial filibusters, it may not be sufficient to do so. On the other hand, more moderate Democrats may view the use of filibusters to block judicial nominees as less desirable....

The list of U.S. Court of Appeals nominees who are currently the subject of a filibuster in the Senate is quite lengthy. ... Look for whether the White House gives Judge Pickering a second recess appointment in anticipation of achieving his confirmation in 2005. And only time will tell whether the U.S. Court of Appeals for the Sixth Circuit will receive any new judges from Michigan in President Bush's second term.

When it comes to judicial nominations and confirmations, the next four years should continue to be quite interesting.

Indeed. And of course, Nomination Nation will be your best source for exclusive news and commentary on the judicial nominations process in the coming weeks, months, and years.

Her Honor?

Could Hillary Clinton become Justice Clinton?

One scenario making the rounds in Washington is that if Sen. John Kerry is elected, he'll nominate New York's Sen. Hillary Rodham Clinton to the U.S. Supreme Court. There she'd judge as a "law-and-order feminist" to build credentials to eventually run for president after Kerry. Sound crazy? Senate and even White House insiders said some moderate and female Republican senators might go for it and OK the confirmation.

Via Orin Kerr.

Term Limits for Supreme Court Justices?

David Bernstein, blogging at the Volokh Conspiracy, has posted this very provocative post where he suggests that "Rehnquist deserves the contempt of all Federalists in good standing" and that Supreme Court justices should be subject to one 15-year term.