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.

Monday, July 25, 2005

Legal Affairs "Advice and Consent" Debate

This week at Legal Affairs, Erwin Chemerinsky and Brannon Denning debate this topic:

The Constitution gives the president the power to appoint justices to the Supreme Court, with "advice and consent" from the Senate. To some, this advice should be limited to a vote, but others say that it demands questioning everything from the nominee's judicial temperament to his politics and legal ideology.

A contentious confirmation battle looms about the nomination of John Roberts. How should the Senate provide its "advice and consent"?

Wednesday, July 20, 2005

Giving Credit Where It's Due

K. J. Lopez of The Corner was the first to predict that Judge Roberts would be nominated to the Supreme Court. Whether she took a wild guess or not, she took a chance. And she got it right.

(Hat tip: Orin Kerr)

Tuesday, July 19, 2005

Tradesports and Nominees

Professors Jim Lindgren and Orin Kerr, both of the Volokh Conspiracy, are debating whether and to what extent "works," where works means doing something other "just mirror the collective common wisdom of newspapers and blogs":

Kerr: It doesn't work. It's just a bunch of ignorant people making bets based on the predictions of other ignorant people. By "ignorant," I don't mean stupid. I just mean ill-informed. In this context, the President and two or three other people know the answer. And they're not talking. Everyone else is ignorant. Tradesport's market is thus nothing but a computer program tracking pluralistic ignorance.
Lindgren: You're wrong. It worked. It predicted Roberts.
Kerr: It "predicted" Roberts after a bunch of ignorant people starting "thinking" Roberts would be nominated.
Lindgren: It worked. It predicted Roberts.
Kerr: Right. It "predicted" Roberts after a bunch of (again, ignorant) people predicted Roberts. What's so special about that?
Okay, there's more to the debate than that. I think. You can read the full thing by reading this post and then reading the "Related Posts." Is anyone from Legal Affairs reading? Turn the Kerr-Lindgren discussion into a Debate Club.

John Roberts' Cases

A partial listing of cases John Roberts argued while a lawyer (in private practice and as a government lawyer) can be accessed at the Oyez Project, here and here.

The Ginsburg Rule

Republicans have already been using what has potential to be a powerful rhetorial device.

During then-D.C. Judge Ginsburg's confirmation hearings, she refused to answer questions on specific cases or controversies that she might have to resolve as a Supreme Court Justice. Tonight, Senator Charles Schumer said that he will demand that Judge Roberts answer questions on specific cases. Senate Republicans are arguing that Judge Roberts cannot - and should not - answer any such questions.

They're relying on Justice Ginsburg's refusal to answer questions as authority for Roberts to evade or refuse to answer certain questions. And they're calling this The Ginsburg Rule. Brilliant.

Schumer's Burden Shifting

"The burden is on the nominee to prove to the Senate that he is worthy to be apointed to the Supreme Court. The burden is not on the Senate to prove that he is unworthy."

Reaction to the Roberts Nomination

The blogosphere is a little slow on the draw, given that Roberts is a shocking nomination. Here are some responses:

Orin Kerr:
Bravo: It's all over the news that the President is nominating John G. Roberts to replace Justice O'Connor. He's an inspired choice. Robert is probably the best Supreme Court litigator of his generation, and is considered a total star within the DC legal community (on both sides of the aisle). Bravo.

John Adler:
Setting aside ideology — and he has a sterling conservative reputation despite the relative lack of a paper trail — he is close to the Platonic ideal of what a Supreme Court nominee should be.

Adam White:
I'd be pleased to see more diversity -- in the fullest sense of the term* -- on the Supreme Court. But assigned seating belongs in classrooms, not on the Court. Good job, President Bush.

Tim Wu:
But nonetheless, hidden in that [John Roberts' student comment] is one of the holy grails of the Exile philosophy– the heightened scrutiny using the contract clause that Lochner itself proclaimed.

Ethan Leib:
Why do the Democrats do such stupid things sometimes? Did Leahy and Schumer really need to have an immediate response to the nomination? And such an unnecessary and disorganized one? It makes us look bad.

Scott from L-Cubed:
I may not like him, but he's qualified.

Amy Howe is also collecting reactions, and she has several links here.

"Live"-Blogging John Roberts' Nomination

[Ed's note: I was away from my computer when watching the press conference. But I took notes, which are transcribed below.]

Wow, John Roberts looks distinguished. He's smiling from ear-to-ear. Not a smirk. But the smile of someone who has worked hard, and who has the pride only someone of genuine accomplishment can have.

As the camera faces him, it looks like his big eyes are welling up. Yes, they are. My God, this legal superhero looks like he's about to tear-up. This is amazing.

His speech is short, but gracious. He really seems like he's in awe of what's happening. I have never seen such humility.

If I had to describe what I'm seeing in just one word, it would be gravitas.

"It's John Roberts"

John Roberts of the D.C. Circuit Court of Appeals will reportedly be nominated to the United States Supreme Court. CNN has the details.

(Hat tip: CTA7 Alum)

Friday, July 08, 2005

Rehnquist Retirement! (?)

According to the Drudge Report:

Rehnquist Retirement Reports Hit Washington; No Official Indication

An poster at the Greedy Clerks Board with an inside connection reports:

A friend of a friend who is a staffer on the Senate Judiciary Committee was told to get to work early today because Rehnquist was announcing. Take it to the bank, rumormongers.

Sunday, July 03, 2005

Professors, Politics, and the Whole Truth

After reading one blawger criticize a liberal law professor for playing fast-and-loose with Supreme Court case holdings, I was inspired to share a conservative professor's sleight of hand. A USD law professor wrote:

At the time [Clinton nominated Ruth Bader Ginsburg], no one argued that Clinton was obligated to appoint a candidate who would continue in White's somewhat conservative tradition. And Clinton surely did not do so. He appointed Ruth Bader Ginsburg--a movement liberal who had served for many years as the ACLU's General Counsel. This is approximately equivalent to appointing the former general counsel to the National Right to Life Coalition to the Supreme Court--or perhaps the National Rifle Association. Nobody batted an eye. Somehow the members of the Senate got it in their heads that a President ought to be given substantial discretion in these matters.

Really now? Senator Orrin Hatch would disagree. In his autobiography, he wrote:

[It] was not a surprise when the President called to talk about the appointment and what he was thinking of doing.

President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. Bruce, a well-known western Democrat, had been the governor of Arizona and a candidate for president in 1988. Although he had been a state attorney general back during the 1970s, he was known far more for his activities as a politician than as a jurist. Clinton asked for my reaction.

I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side. I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease.

Of course, we can quibble over what giving the President "substantial discretion" means. But I'm an old-fashioned guy who thinks law professors ought to tell the whole story when educating the non-lawyer public. The USD professor, in failing to note that Senate Republicans played a major role in the SCOTUS nomination process during Clinton's presidency (indeed, naming the justices), omitted materials facts. This is, at best, poor form. At worst, it's calculated to deceive.

Or, perhaps the good professor did not know the role Senator Hatch played in the nomination of Justices Ginsburg and Breyer. I'm not sure which is worse: willfully omitting material facts, or not knowing the facts.

(Hat tip: L-Cubed)

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