Nomination Nation

Legal Affairs "Advice and Consent" Debate

2005-07-25T14:22:00.000-04:00

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"?

Giving Credit Where It's Due

2005-07-20T01:09:00.000-04:00

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)

Tradesports and Nominees

2005-07-19T23:03:00.000-04:00

Professors Jim Lindgren and Orin Kerr, both of the Volokh Conspiracy, are debating whether and to what extent Tradesports.com "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

2005-07-19T23:01:00.000-04:00

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

2005-07-19T22:39:00.000-04:00

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

2005-07-19T22:37:00.000-04:00

"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

2005-07-19T22:17:00.000-04:00

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

2005-07-19T22:08:00.000-04:00

[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"

2005-07-19T20:12:00.000-04:00

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)

Rehnquist Retirement! (?)

2005-07-08T12:28:00.000-04:00

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.

Professors, Politics, and the Whole Truth

2005-07-03T22:11:00.000-04:00

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)

NR's Bench Memos: Not Serious

2005-06-11T15:50:00.000-04:00

The National Review's descent from a serious and intellectually-honest (albeit partisan) magazine into a silly partisan hack rag was perhaps best exposed by Ramesh Ponnuru's hit piece on Professor Tribe, and then his childish name-calling of Tom Goldstein for daring to question his analysis (name calling which was criticized by many serious conservatives). So perhaps it is no surprise that National Review's entry into commentary on judicial nominations with its Bench Memos blog is beyond dishonest.

For example, take a look at this post by Edward Whelan on Justice Ruth Bader Ginsburg:

First, no conceivable nominee will have the record of extremism that nominee [Ruth Bader] Ginsburg had, but will instead surely display a much more sound understanding of the role of judging in a constitutional republic. Second, Ginsburg was altering the previous balance of the Court by replacing Justice Byron White, an opponent of much of the Court’s liberal activism (including Roe).

Record of Extremism!! Recall that Justice Ginsburg was recommended to President Clinton by none other than Orin Hatch, then ranking-minority member of the Senate Judiciary Committee. I challenge the National Review to find a serious legal scholar (eg not R. Ponnuru) who would characterize Justice Ginsburg's jurisprudence on the DC Circuit (or now on the Supreme Court) as "extreme." Compared to true judicial liberals like the late Justices Brennan and Marshall, or Ninth Circuit Judge Reinhardt, Ginsburg is conservative. She has not hesitated to join summary reversals of vacaturs of death sentences by the Ninth Circuit (this sort of procedural speak may be above the author of the post I criticize), and she has routinely affirmed death sentences.

Even on woman's issues, Justice Ginsburg has not been so far to the left in her tenure on the Supreme Court. In US v. Virginia, Justice Ginsburg reaffirmed that intermediate-scrutiny for gender-based classifications was the proper level of analysis under the Equal Protection Clause of the 14th Amendment (I know, I know, this is probably all over Edward Whelan's head). This despite the Clinton Administration's urging that the Court adopt strict scrutiny (which was the standard urged by liberals in the 70's and 80's, and endorsed by Justices Brennan and Marshall).

The colorable point that Mr. Whelan has is that Ginsburg's nomination altered the balance of the Court in a greater way than will the Chief Justice's replacement. This is true to a degree. But only to a degree. Justice White (appointed by JFK) was indeed judicially conservative on many issues -- most notably in his opposition to Roe v. Wade, he and Rehnquist were the only dissenters from the Court's opinion in Roe. But in other areas, Justice White's jurisprudence was similar to Justice Ginsburg's -- he did not believe that affirmative action programs should be reviewed for strict scrutiny, he was a supporter of civil rights laws, etc.

In short, in their new role as mouthpiece for the Republican party and by trying to drum up support amongst the Republican base against "activist" judges (coincidentally with Jewish names which surely will play well with his audience), the National Review must simply depart from any modicum of intellectual honesty. It's sad as those of us who truly understand jurisprudence have to read this cr--.

Janice Rogers Brown to Supreme Court?

2005-06-08T21:48:00.000-04:00

Following up on Pozinski's post re the confirmation of Justice (I guess now-Judge) Brown to the DC Circuit, the speculation must now begin: will Bush nominate her to the Supreme Court if there is indeed a vacancy this summer (which I am not convinced yet there will be)? Tom Goldstein mentions Brown as a "top candidate" for nomination. Such a nomination would drive liberals mad, and would be well-received amongst Bush's core social conservatives. Moreover, such a move would be good strategy given that the Democrats agreed not to filibuster her to the DC Circuit. Although the Dems could argue that "extraordinary circumstances" to the Supreme Court is different from "extraordinary circumstances" to the DC Circuit, such a fine distinction may not be so easily made.

My prediction: Bush does nominate her, and we can prepare for the most bitter confirmation battle in history.

New Supreme Court Nomination Blog

2005-06-08T19:20:00.000-04:00

The lawyers of Goldstein & Howe have started what will fast become the preeminent source for Supreme Court nomination related news and commentary. Entitled The Supreme Court Nomination Blog, this is its first week in operation: you can read the inaugural post here.

Janice Brown Confirmed

2005-06-08T19:17:00.000-04:00

BREAKING NEWS: According to this CNN story, California Supreme Court Justice Janice Rogers Brown has been confirmed to the District of Columbia Court of Appeals. Congratulations, Judge Brown!

(Hat tip: Professor Orin Kerr.)

What a Long, Strange Trip It's Been

2005-05-10T11:10:00.000-04:00

On the fourth anniversary of Bush's first judicial nominations, Byron York takes a look back over at the fledgling Huffington Post.

Frist has the votes?

2005-04-16T13:33:00.000-04:00

Robert Novak is reporting that Frist has 52 votes to uphold the nu-ku-lar option.

WASHINGTON -- Republican leaders count only two or three GOP senators who will vote against the efforts to end, by a straight majority vote, filibusters on confirmation of judicial nominations.
Sens. Olympia Snowe of Maine and Lincoln Chafee of Rhode Island will not support this move, and they are likely to be joined by Sen. John McCain of Arizona. That would mean 52 senators would go along with the parliamentary maneuver attempting to end filibusters on judges. Only 50 are needed.
The only Democrat who might possibly join this effort is Sen. Ben Nelson of Nebraska. But Bush will not press him to break party discipline if his help is unnecessary.

Griffith Clears Judiciary Committee

2005-04-14T18:36:00.000-04:00

In an interesting development, the Judiciary Committee approved Griffith on a 14-4 vote. Schumer, Durbin, Feinstein, and Kohl (WI) all voted YEA. (Which I find quite surprising). If they intend to vote in the same fashion on the floor, that makes Griffith filibuster-proof. (55 GOPers plus the above 4 Dems, plus Ben Nelson of Nebraska who has never supported a filibuster against judicial nominees). So, it seems that Griffith will be the first appellate nominee approved. I wonder if the Dems decided to reduce the number of nominees they will try and filibuster in the hopes of averting the nuclear option.

Leave the Man Alone

2005-03-23T13:51:00.000-05:00

Law professor (and former guest) Tom Baker has this op-ed in The National Law Journal arguing that the media should respect Chief Justice Rehnquist's privacy with respect to his illness and treatment.

In light of the media storm over the Chief's return to the bench Monday (complete with photos of him leaving his house in his L.L. Bean barn jacket), I'm inclined to agree with Professor Baker on this one.

Votes in place to implement nuclear option?

2005-03-15T10:03:00.000-05:00

This article suggests that Republican Senators may have the votes needed to implement the so-called "nuclear option."

Term Limits for Supreme Court Justices?

2005-03-14T16:15:00.000-05:00

That controversial issue is the subject of this week's debate between Judge Richard Posner and economist Gary Becker over at their blog.

Professor William Kelley

2005-03-10T17:59:00.000-05:00

We have it on the most reliable authority that Notre Dame law professor William Kelley has been appointed Deputy White House Counsel, not nominated to a federal court of appeals.

Congratulations, Professor Kelley.

Justice Roberts?

2005-02-19T13:58:00.000-05:00

Tony Mauro reports that D.C. Circuit Judge John Roberts, Jr. may be on the short list for the next Supreme Court vacancy.

On the Road Again

2005-02-15T09:38:00.000-05:00

President Bush has renominated twenty judges that didn't get a vote in the last Congress.

Let the games begin.

Kelley Next in Line for D.C. Cir.?

2005-02-14T13:33:00.000-05:00

Article III Groupie is reporting a rumor that law professor William K. Kelley will be nominated for a seat on the D.C. Circuit soon. If we hear any more, we'll let you know.

Update: Or not.

SPECIAL GUEST POST: Professor Thomas E. Baker

2005-02-12T12:51:00.000-05:00

[Ed. note: The following post originally appeared as an op ed column in the subscription-only Roll Call. Nomination Nation is pleased to be able to bring it to you in full with the permission of the author and publication.]

The Senate and The President: A Call to Arms

Apocalyptic predictions for the gathering battle over the next Supreme Court appointment have led political conscientious objectors to urge the White House and the Senate to practice "moderation," "conciliation" and "compromise" - in other words, to back off from brinkmanship tactics. But if we stop to consider how much power each justice wields, the president and the Senators both ought to have their war faces on.

The Supreme Court of the United States is the most powerful judicial body in the world. Each justice shares in the power of judicial review that amounts to the ability to interpret and, in a sense, amend the Constitution without the people's consent.

Article V of the Constitution provides the procedures for making formal amendments: They must be approved by a two-thirds majority in both houses of Congress and ratified by the approval of three- fourths of the state legislatures. Only 27 formal amendments have been proposed and ratified in more than two centuries, however, and only 17 of those have come since the adoption of the Bill of Rights.

Since 1803, when the Supreme Court claimed the power of judicial review in the landmark decision of Marbury v. Madison, an alternate way of changing the meaning of the Constitution has existed: a simple majority vote by five of the nine justices. Indeed, judicial edicts have accounted for many times more changes in constitutional law than the formal amendments have. The Supreme Court has overturned more than 150 acts of Congress and more than 1,000 state and local laws; the justices have overruled themselves more than 200 times. "We are under a Constitution," former Chief Justice Charles Hughes said, "but the Constitution is what the judges say it is."

Often these changes have had profound consequences, such as Brown v. Board of Education, the 1954 decision that declared an end to "separate but equal" racial apartheid. That historic decision was unanimous. But some of the most controversial issues of the day are in fact decided by a one-justice margin, such as last year's decision supporting racial affirmative action in college admissions and the decision that stopped the Florida recount in the 2000 presidential election.

The Supreme Court majority's preferences determine national policy on many important and divisive issues, such as abortion, euthanasia, the death penalty, remedies for discrimination, and the separation of church and state. And, as Justice Robert Jackson once noted, there is no further appeal: "We are not final because we are infallible; we are infallible only because we are final."

Any combination of five justices voting together wields a power comparable to the supermajorities in the House, Senate and state legislatures. That means that five justices cumulatively count as much as 67 Senators, 290 Representatives and 38 state legislatures.

Thus, every time the president nominates and the Senate confirms a new justice, it amounts to a sea change in the distribution of power. Only the election of a president - arguably - is politically more significant.

Justices serve "during good behavior," effectively for life; Chief Justice William Rehnquist, to take just one example, was appointed by Richard Nixon in 1971. In 1805, the House impeached Justice Samuel Chase, but the Senate acquitted him and the understanding ever since has been that a justice cannot be removed for his or her decisions. Thomas Jefferson concluded that judicial impeachment was an impractical threat, a "mere scarecrow."

The point is this: The nomination and confirmation process is our last chance - indeed, our only real chance - to pass judgment on high court justices.

What Karl von Clausewitz said about war applies to constitutional interpretation: "It is a continuation of politics by other means." Every Supreme Court appointment is a critical battle in the Kulturkampf. The opposing sides are gearing up for more than an academic lyceum. The president should take his best shot. So should the Senate. Then "We the People" should get ready to choose sides in the coming political fight over the influence and the direction of the Supreme Court.

Thomas E. Baker is a member of the founding faculty at the Florida International University College of Law, where he teaches constitutional law. He is a former federal judicial law clerk and spent three years working for the Supreme Court, as a Judicial Fellow and Acting Administrative Assistant to Chief Justice Rehnquist.

Copyright 2005, Roll Call Inc.

Going nuclear for Janice Brown

2005-02-06T11:26:00.000-05:00

Robert Novak, the Republican columnist with perhaps the best sources in Washington, writes that the nuclear option will be used to confirm Janice Brown sometime next month.

The "nuclear option," as discussed previously here on NN, would defeat a filibuster by asking the chair (Dick Cheney, as president of the Senate) for a ruling on whether the filibuster applies to debates on judicial nominees. If the chair rules that it does not, then the Democrats must get 51 votes to overturn that decision. Instead of the 60 votes required for cloture (to end debate and take a vote), this measure only requires 50 Republicans to uphold the ruling of the chair.

Needless to say, this will not help the President find support for Social Security and tax code reform. I wonder if it isn't a bluff.

Handicapping Bush's Judicial Nominations

2005-01-20T13:22:00.000-05:00

An article with that title appears today in Legal Times. It provides a good overview of the challenges facing both the administration and the Senate in the upcoming year(s).

On the lighter side

2005-01-20T13:05:00.000-05:00

The Onion reports that the Supreme Court will break up if Chief Justice Rehquist retires.

"It just wouldn't be the same court without Bill," Justice David Souter said. "He's the heart and soul of this judicature, the one who motivates us to keep ruling. I can't imagine doing it without him."

"Bill kept arguing that no matter what happened, the Supreme Court should continue," Justice Sandra Day O'Connor said. "It was touching to see how much
faith he has in us, but I think the majority opinion is in favor of quitting while we're on top, rather than muddling through a bunch of mediocre judicial sessions and becoming some sort of kangaroo court."Continued O'Connor, "The hardest thing to achieve with a judicial body as large as ours is a rapport. To effectively interpret the law, you need that certain magical something. Without Rehnquist, we'll lose that vibe."

Bernard Tomaine, publisher of the Supreme Court fanzine The Docket, characterized Rehnquist's role as "essential."

"When Rehnquist leaves, it's going to be the end of an era," Tomaine said. "He's absolutely irreplaceable."

Added Tomaine: "I've got a bootleg copy of an opinion that Rehnquist wrote for U.S. v. Verdugo-Urquidez that would blow your mind."

Nuclear Option? Perhaps Not So Fast.

2005-01-16T15:41:00.000-05:00

As the second Bush administration is about to take hold much talk is swirling around the nation's capital about judicial nominees. The big question is whether the Democrats will continue to filibuster some nominees, and if so what will be the GOP response. The most talked about repsonse by the Republicans has been the "nuclear ("nu-ku-lar") option."

This Washington Post article however questions whether or not the GOP will have the votes to implement the option. And of course, the Democrats are threatening retribution should the GOP end filibusters.

In any event it should be a fun fight. Let the battles begin.

Sunken and Lifeless

2005-01-14T10:24:00.000-05:00

This is awful, but noteworthy. There's a first-person account of the Chief Justice's (outward) condition in today's New York Post. It is not good.

A completely Unproven and Totally Speculative Theory

2005-01-11T22:29:00.000-05:00

With today's selection of Judge Chertoff to head the Department of Homeland Security a question and then a thought came to my mind. The question is, why would anyone give up a life tenure on the Court of Appeals (especially if one was appointed to it less than 2 years ago) for an uncertain and politcially charged world of the Presidential Cabinet?!

Although certainly prestigious, the Cabinet provides neither the job security nor the intellectual challenge of the judicial work. And of course it is signifcantly more hectic. Which in turn brings me to my thought. Could it be that Mr. Chertoff is being groomed for the Supreme Court?

It is well known that President Bush selects individuals for important positions largely on the basis of trust and loyalty. Having Judge Chertoff in Washington, D.C., in a position of high sensitivity will undoubtebly give Bush the opportunity to see if he trusts him enough for the Supreme Court appointment. An additional benefit is that Judge Chertoff would not produce partisan rancor. He was confirmed to be Asistant Attorney General by a vote of 95-1 and Circuit Judge by a vote of 88-1. He is liked by Democratic Senators Jon Corzine and Frank Lautenberg, and was well regarded by fmr. Senator Bill Bradley. So he may sail through the Senate. And if someone like Stevens retires (where the replacement would not have to be rock-ribbed conservative in order to keep the Court in place or move it to the right) Chertoff may be a perfect choice.

None of this theorizing has any basis in any actual fact (beyond the fact that Judge Chertoff, President Bush, and the Supreme Court do exist, and that Judge Chertoff was indeed selected to be the next DHS Secretary).

What Time is It? Game Time!

2005-01-05T09:12:00.000-05:00

The Chairman is finally in place. The new Senate is ready to convene. The President has already done his part. Judicial nomination season is upon us.

And it should be interesting. Tempers are already high. But, while Majority Leader Frist publicly seeks swift action and threatens rules changes to combat the Democrats, documents emerge that he himself has participated in judicial filibusters before, and then lied about it. As Frist himself said, this is all a bit "confusing."

Nomination Nation intends to sort it all out for us, and be your source for the latest in judicial nomination news and gossip.

Random Prediction of the Day

2005-01-04T11:07:00.000-05:00

Ever-reliable Cindy Adams, of the New York Post, tells us that Justice O'Connor will "likely resign this summer." While not proffering any real detail on why we should believe her, Adams mentions in passing that O'Connor's husband is not well. If this is true, we wish them both health and happiness for the new year.

"The Judges ... shall hold their Offices during good Behaviour"

2004-12-31T01:04:00.000-05:00

Perhaps not, if a group of law professors have their way. Read "Coming to Terms With Supreme Court Tenure" for more details.

Pozinski

Bush, Getting Ready to Rumble

2004-12-23T15:50:00.000-05:00

According to this New York Times story:

President Bush plans to renominate 20 candidates for federal judgeships who have been unable to win confirmation in the Senate, the White House said today, in a signal that the president is ready for a showdown early next year.

Bitchin' Camaro kindly provided this list of judges whom Bush will renominate:

Court of Appeals:
Terrence W. Boyle (4th Circuit) (first nominated May 9, 2001)
Priscilla Richman Owen (5th Circuit) (first nominated May 9, 2001)
David W. McKeague (6th Circuit) (first nominated November 8, 2001)
Susan Bieke Neilson (6th Circuit) (first nominated November 8, 2001)
Henry W. Saad (6th Circuit) (first nominated November 8, 2001)
Richard A. Griffin (6th Circuit) (first nominated June 26, 2002)
William H. Pryor (11th Circuit) (first nominated April 9, 2003)
William Gerry Myers, III (9th Circuit) (first nominated May 15, 2003)
Janice Rogers Brown (District of Columbia Circuit) (first nominated July 25, 2003)
Brett M. Kavanaugh (District of Columbia Circuit) (first nominated July 25, 2003)
William James Haynes, II (4th Circuit) (first nominated September 29, 2003)
Thomas B. Griffith (District of Columbia Circuit) (first nominated May 10, 2004)

District Courts:
James C. Dever, III (Eastern District, North Carolina) (first nominated May 22, 2002)
Thomas L. Ludington (Eastern District, Michigan) (first nominated September 12, 2002)
Robert J. Conrad (Western District, North Carolina) (first nominated April 28, 2003)
Daniel P. Ryan (Eastern District, Michigan) (first nominated April 28, 2003)
Peter G. Sheridan (New Jersey) (first nominated November 5, 2003)
Paul A. Crotty (Southern District, New York) (first nominated September 7, 2004)
Sean F. Cox (Eastern District, Michigan) (first nominated September 10, 2004)
J. Michael Seabright (Hawaii) (first nominated September 15, 2004)

Please email Pozinski or Senator Spectator if you know anything about the above nominees.

The Yankee Model

2004-12-16T11:44:00.000-05:00

Will Baude, proprietor of the Crescat Sententia blog, has a column online at The New Republic suggesting that Bush should select a replacement for Chief Justice Rehnquist (if/when there is a vacancy) from outside the Court rather than elevating a current justice.

I call this the Yankee model because the New York Yankees (of late) try to build winning teams by acquiring players from elsewhere rather than strengthening their farm system. The results are subject to debate.

What Are the Odds?

2004-12-13T19:51:00.000-05:00

Today's issue of The Recorder contains an article about an online betting site where you can wager on who you think will become the next Supreme Court Justice, or which Justice will be elevated to the position of Chief Justice if that position were to become available. In the former category, Judges Luttig and Wilkinson of the Fourth Circuit are heavily favored. Judges Easterbrook (CA7) and Kozinski (CA9) are long-shots along with Senators Hatch (R-UT) and Kyl (R-AZ).

Justices Thomas and Scalia are predictably favored in the latter race, while you would make a killing in the event of a Souter Chiefship.

Note: Nomination Nation makes no representations regarding the legality or advisability of visiting this site and placing any wagers. Of course, if you want to see the odds for entertainment or other purposes, click on "Propositions & Futures," then "Politics Props." Just sayin'.

The ghost of filibusters future

2004-12-13T14:00:00.000-05:00

From the Washington Post:
As speculation mounts that Chief Justice William H. Rehnquist will step down from the Supreme Court soon because of thyroid cancer, Senate Republican leaders are preparing for a showdown to keep Democrats from blocking President Bush's judicial nominations, including a replacement for Rehnquist.
Republicans say that Democrats have abused the filibuster by blocking 10 of the president's 229 judicial nominees in his first term -- although confirmation of Bush nominees exceeds in most cases the first-term experience of presidents dating to Ronald Reagan. Describing the filibusters as intolerable, Senate Majority Leader Bill Frist (R-Tenn.) has hinted he may resort to an unusual parliamentary maneuver, dubbed the "nuclear option," to thwart such filibusters.
Democrats, however, face several constraints. Democratic strategists said that some of the party's senators from states Bush carried in the presidential election could be reluctant to support a filibuster for fear of being portrayed as obstructionist -- a tactic the GOP used successfully in congressional elections this year and in 2002.
Although frustrated Senate leaders have resorted in the past to tactics involving at least some aspects of the nuclear option, none of the confrontations approached the significance -- or political explosiveness -- of the current dispute, with implications stretching beyond the issue of judicial nominations.
Although it would not directly threaten filibusters on legislative issues, critics believe it could open the door to further erosion of the Senate's long tradition of unlimited debate as a last refuge for political minorities and a brake on precipitous action by presidents and legislative majorities. Although Bush would have an easier time getting the judges he wants, Democrats warn that he could run into trouble on Social Security, tax simplification and other major second-term initiatives that will probably require Democratic cooperation for passage.
Use of the nuclear option "would make the Senate look like a banana republic . . . and cause us to try to shut it down in every way," Schumer said. "Social Security and tax reform need Democratic support. If they use the nuclear option, in all likelihood they would not get Democratic support" for those and other initiatives, he added.

Pickering Retires

2004-12-09T14:06:00.000-05:00

As expected, Charles Pickering announced his retirement from the federal bench yesterday. Pickering made it clear that his retirement was permanent, noting that President Bush could now nominate younger candidates. This would appear to be a dubious victory for Democrats, considering that, as alluded to by Pickering, Bush will now nominate a candidate who is likely to serve much longer than the 67-year old Pickering would have. Moreover, certain racial skeletons in his closet notwithstanding, Pickering was regarded by most informed litigants as a judicial moderate.

Prepping for war

2004-12-08T14:57:00.000-05:00

War is serious business. The New York Times has the details on the Supreme Court nominations to come.

With the presidential race over and Chief Justice William H. Rehnquist ill with thyroid cancer, the Washington advocacy establishment - that vast machinery of special interest groups, research institutions and pundits who thrive on the periphery of politics - is gearing up for the next big fight: the battle over the Supreme Court.

"This will be a repeat, and all the organizations that were engaged in work around the election, from big groups to small groups, will feel that this is their own personal fight," said Nan Aron, the president of the Alliance for Justice, a liberal advocacy group.

Ms. Aron said her office had been flooded with calls from students, lawyers and activists "who were involved in get-out-the-vote work and now want to turn their attention to the Supreme Court."Like the presidential election, a Supreme Court nomination fight will feature polling, paid television advertising and grass-roots organizing. Ms. Aron said she had been "on the road for weeks," recruiting volunteers and trying to build networks in various states. Mr. Neas said liberal groups planned to survey American attitudes on issues like civil rights, the environment and abortion, to gather data for an eventual advocacy campaign.

And like the presidential election, a nomination fight will be expensive. Jay Sekulow, the chief counsel for the American Center for Law and Justice, a conservative group, said his organization expected to spend $3 million to $5 million. The money, Mr. Sekulow said, is already in the bank.

"There's a comprehensive game plan that will unfold upon the retirement," said Mr. Sekulow, who has taken part in the Gray-Meese strategy talks. "It's already in process. It's going to include everything from media, paid media, to grass roots in various states where senators are up for re-election in '06, to position papers on potential nominees."

And the kicker:

There will even be a war room. People for the American Way built it, with 35 computers, Mr. Neas said, to function as "a nerve center" during a confirmation battle.

Reid on Thomas

2004-12-06T13:54:00.000-05:00

According to this CNN story, Senator Harry Reid does not think highly of Justice Thomas:

When asked to comment on Thomas as a possible replacement for Chief Justice William Rehnquist, Reid told NBC's "Meet the Press": "I think that he has been an embarrassment to the Supreme Court.
"I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice."

Oh boy, a preview of fights to come

2004-12-05T18:56:00.000-05:00

The Washington Post reports that Senator Harry Reid (D-NV) wants to play a part in the President's Supreme Court appointments.

He cited the autobiography of Sen. Orrin Hatch, in which the Utah Republican said former President Clinton came to him as Judiciary Committee chairman with suggestions of nominees that could win approval from the other side of the aisle.

Reid suggested he may be open to the possibility of Justice Antonin Scalia as a replacement for ailing Chief Justice William Rehnquist. "This is one smart guy," said Reid. "I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute." Reid called Justice Clarence Thomas "an embarrassment." He added: "I think that his opinions are poorly written. I just don't think that he's done a good job."

Pickering losing heart for confirmation fight?

2004-12-01T08:54:00.000-05:00

This article includes a quote from Senator Lott which indicates that Charles Pickering may have decided to end his quest for confirmation to the Fifth Circuit Court of Appeals. Specifically, the article quotes Lott as follows:

He could be reappointed at some time in the future, but I don't think at this point he wants to... He's a good man, and this has been a smear on his reputation.

If so, it is unclear whether Mississippi's Republican senators are prepared to submit other potential nominees for Bush's consideration or whether they might wait and see if Pickering has a change of heart after, for example, the implementation of the "nuclear option."

Article III term limits?

2004-11-28T14:05:00.000-05:00

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

2004-11-27T23:04:00.000-05:00

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

2004-11-25T11:43:00.000-05:00

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

2004-11-25T11:35:00.000-05:00

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

2004-11-25T11:28:00.000-05:00

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)

2004-11-22T10:27:00.000-05:00

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].

_________________________________________

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

2004-11-22T07:11:00.000-05:00

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

Thomas to the top, Olson to the Court?

2004-11-21T13:23:00.000-05:00

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

2004-11-19T10:19:00.000-05:00

"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"

2004-11-18T15:44:00.000-05:00

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"

2004-11-18T10:46:00.000-05:00

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

2004-11-17T17:59:00.000-05:00

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

2004-11-17T17:27:00.000-05:00

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"

2004-11-17T11:51:00.000-05:00

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

2004-11-15T11:26:00.000-05:00

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"

2004-11-15T10:19:00.000-05:00

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

2004-11-12T23:00:00.000-05:00

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?

2004-11-12T21:29:00.000-05:00

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

2004-11-12T18:33:00.000-05:00

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

2004-11-12T09:22:00.000-05:00

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

Frist Warns Democrats About Filibusters

2004-11-11T23:17:00.000-05:00

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?

2004-11-10T18:16:00.000-05:00

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"

2004-11-10T11:33:00.000-05:00

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"

2004-11-10T11:24:00.000-05:00

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

2004-11-07T17:54:00.000-05:00

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?

2004-11-04T19:17:00.000-05:00

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

2004-11-04T13:59:00.000-05:00

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

2004-11-03T15:16:00.000-05:00

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?

2004-11-01T14:32:00.000-05:00

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?

2004-11-01T14:29:00.000-05:00

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.

Rehnquist's return

2004-10-29T22:14:00.000-04:00

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"

2004-10-29T10:56:00.000-04:00

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.

A Major Recess Appointment

2004-10-28T14:35:00.000-04:00

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.

We Wish the Chief Well

2004-10-25T13:17:00.000-04:00

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.

How we became a nomination nation

2004-10-22T16:55:00.000-04:00

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

2004-10-22T13:54:00.000-04:00

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.

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

2004-10-21T19:46:00.000-04:00

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.

When There are Only Nine, Each Justice Matters

2004-10-19T18:35:00.000-04:00

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.

State of Affairs

2004-10-18T13:53:00.000-04:00

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

2004-10-18T13:41:00.000-04:00

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

2004-10-18T13:00:00.000-04:00

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)

Recess: Not just your favorite school subject anymore

2004-10-14T17:04:00.000-04:00

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.

More Speculation About Bush/Kerry Supreme Nominees

2004-10-12T14:10:00.000-04:00

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."

Bush v. Kerry?

2004-10-07T16:44:00.000-04:00

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

2004-10-07T16:25:00.000-04:00

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.

61*

2004-10-07T11:58:00.000-04:00

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.

Forget New Judges, How About Whole New Circuits?

2004-10-06T10:58:00.000-04:00

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.

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

Senate Republicans backed off cloture votes in September

2004-10-05T11:36:00.000-04:00

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

2004-10-05T09:56:00.000-04:00

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.

"In No Hurry"

2004-10-01T11:14:00.000-04:00

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)

A Plan to Put Us Out of Business

2004-09-30T18:22:00.000-04:00

Angus Dwyer and Will Baude, two Yale Law students, debate the merits of an unusual proposal put forth by Professor Mashaw: What if the Supreme Court appointed the lower federal judges rather than the President nominating judges with the advice and consent of the Senate? I'll tell you what would happen -- this blog would have a lot less to talk about. But that's a different story.

Dwyer does a decent job of explaining why, at least if district and circuit judges are considered "inferior officers," this plan wouldn't present any constitutional problems. He also makes a sensible argument that it might ease some of the gridlock of the current judicial nomination process and (perhaps) result in less political appointees. Will contends that there is a danger that allowing the Supreme Court to appoint its own inferior courts would only entrench the high court's own ideology and bias.

I think Will is pretty close to getting it. The problem here is one of separation of powers. The framers very carefully chose to have the judiciary appointed through the advice and consent model so as to have an independent third branch in which each of the other two had a say regarding its composition. Taken a step further, the Judiciary -- the final arbiter of "what the law is" -- was to be picked by a system resulting from a compromise between national interests (represented by the President) and the states' interests (represented by the Senate). Allowing the Supreme Court to control the process, then, would disrupt these checks and balances. Granted, the nine members of the Supreme Court would still be appointed in the same manner, but that doesn't satisfy the intent of the original system when you consider that the vast bulk of the federal judiciary -- over 850 active judges -- would be picked independent of the advice and consent system.

In short, the idea, while intriguing, wouldn't work. The framers were concerned about improper influence in the appointments process, which is why one faction resisted giving the power solely to the President, and another resisted giving the same to the Senate. To contravene both and give it to 9 (or, I suppose, 5) Supreme Court justices, I believe, would please none of the Framers.

Update: More thoughts from "The Fox."

The Conspiracy Continues?

2004-09-30T10:20:00.000-04:00

Ex-clerks and conservative big-wigs aren't the only ones condemning the actions of those who spoke out about the Supreme Court's decision in Bush v. Gore in the current issue of Vanity Fair magazine. Now several senators have begun pushing for an investigation.

Of course, the senators happen to be prominent Republicans, but you were getting used to the lack of bipartisanship on this issue, right? Senators Saxby Chambliss (R-GA), John Cornyn (R-TX), and Lindsey Graham (R-SC) sent a letter to Sen. Orrin Hatch (R-UT), Chairman of the Senate Judiciary Committee, suggesting that perhaps the subcommittee on Administrative Oversight and the Courts might want to "pay attention" to the matter.

In explaining their reasons for concern, the senators cut and paste from the statement signed by the aforemention group of conservative ex-clerks, then conclude:

Judges throughout the federal judiciary, including the U.S. Supreme Court, rely on the assistance of law clerks to ensure the smooth and expedient administration of justice. If members of the judiciary cannot rely on the confidentiality of their deliberations and discussions with law clerks, the judiciary as we know it simply could not function.

The senators ask Chairman Hatch to "consider hearings or other measures to determine whether there has been misconduct by employees of the United States Supreme Court, and if so, what measures should be taken in response."

Scary stuff. But I doubt anything will come of this. Remember, the Republican-run Judiciary Committee has had its own problems with confidentiality in the past.

(thanks to Professor Volokh for posting the senators' letter)

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In other "Clerkgate" news, Edward Lazarus (who, as Pozinski pointed out, wrote "Closed Chambers," the non-fiction book that lead to the current confidentiality agreement) has a column online today arguing that the Supreme Court is wrong in its "aggressive attempts to suppress investigation of its internal decision-making process."

Lazarus also confirms that, as NN's investigation revealed, most of the signatories who condemned the clerks' actions are "right-wingers."

No Biggie?

2004-09-29T17:31:00.000-04:00

Chris at The Smoke Filled Room argues that it is possible the next president will not have that big of an impact on the Supreme Court's long-term future.

Based on the relative ages of active senators, Chris notes that Justice Stevens could try to outlast a second Bush administration. In that case, Bush would get to appoint at most two justices, and would be replacing two conservative-leaning seats in Rehnquist and O'Connor, so the overall ideaology wouldn't shift all that much. On this last point, I tend to disagree, since it is likely that Bush would appoint an O'Connor replacement with less of a tendency to vote with the liberal wing on certain issues.

If Kerry is elected, Chris argues, he would probably only get to replace Stevens, thus only trading one liberal for another, with the Chief and Sandy holding on a little longer (until the Guliani administration?).

All of this is simply a fun game to keep us all busy. We have no idea what will really happen. After all, any number of things can happen in four years. Thomas could retire to drive around the country in his r.v., Ginsburg could become a professional poker player, Souter could get mugged again, etc.

Only time will tell.

Throwing in the Towel

2004-09-29T13:41:00.000-04:00

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?

Friends of the Five Friends of Bush

2004-09-29T13:21:00.000-04:00

One of the perks of confirmation as a life-tenured federal judge is the ability to select America's top law graduates each year to work as law clerks in your chambers. You can trust your clerks, because ethical rules prevent them from discussing pending cases and require them to disclose any conflict of interest between them and a pending case. The Supreme Court (SCOTUS) not only requires clerks to remain silent about pending cases, but also explicitly requires clerks to sign a confidentiality agreement. This vow of silence bars them from ever talking about anything discussed during their time at the Court. Edward Lazarus, author of Closed Chambers (a detailed account of his time as a clerk to Justice Blackmun), and inspiration for the rule, calls this vow a "rule of secrecy surpassed only by the CIA."

Vanity Fair magazine recently wrote an expose on Bush v. Gore, where they interviewed several former Supreme Court law clerks. Broadly stated, the article's theme was that Bush v. Gore was about politics, not law. Former clerks of the "liberal justices" offered a behind-the-scenes look at the case to support VF's thesis. As the magazine acknowledged, these clerks provided unprecedented access to decision-making at the Court. The clerks' justification for spilling the beans? Since the Court did not follow what they believed to be the Court's proper role in adjudicating Bush v. Gore, the clerks don't have to abide by their gag order. The clerks felt that the Court didn't live up to its end of the bargain.

This caused an uproar. Miffed that former SCOTUS clerks broke their vow of silence, several former clerks rallied and signed a statement of outrage provided to Legal Times:

Although the signatories below have differing views on the merits of the Supreme Court's decisions in the election cases of 2000, they are unanimous in their belief that it is inappropriate for a Supreme Court clerk to disclose confidential information, received in the course of the law clerk's duties, pertaining to the work of the Court. Personal disagreement with the substance of a decision of the Court (including the decision to grant a writ of certiorari) does not give any law clerk license to breach his or her duty of confidentiality or "justif[y] breaking an obligation [he or she would] otherwise honor." (emphasis added)

One would think that, in attempting to confirm their "differing views on the merits of [Bush v. Gore]," the statement's drafters would have amassed bipartisan support by soliciting ex-clerks from the chambers of both liberal and conservative justices. Additionally, this cross-ideology alliance would further show that Bush v. Gore is indeed about law, not politics.

Unfortunately, the opposite is true. Nomination Nation, inspired by A3G's investigative journalism, decided to track down all of the statement's signatories. We then matched each person with his or her justice or, if they are not ex-clerks, with his or her field or political connections.

The results were staggering. Of the 96 signatories (9 of which were never SCOTUS clerks), 65 of them clerked for one of the "five friends of Bush" -- the conservative majority in Bush v. Gore. 4 clerked for minority justices, and the rest of the ex-clerks' justices have retired or passed away, most if not all of which were conservatives (e.g. Chief Justice Burger, Justice White). Perhaps less surprising, the most common justice was Justice Kennedy, who coincidentally takes the hardest hits from the article.

Of those who were not ex-SCOTUS clerks, all are prominent conservatives. Among the signatories: former RNC General Counsel Jan Baran; Bush I Attorney General William Barr; Reagan and Bush I Attorney General Dick Thornburgh; Bush I White House Counsel C. Boyden Gray; Judge Kenneth Starr, who impeached President Clinton; former Solicitor General Ted Olson, who argued Bush v. Gore before the Court; and several high-ranking attorneys from the Office of Legal Counsel and Office of the Solicitor General in the Nixon, Reagan and Bush I administrations.

Not the most diverse group of viewpoints. So how did this list get assembled? One of the signatories, an ex-clerk of Clarence Thomas, tells Nomination Nation that (s)he received the statement from another ex-Thomas clerk and that it "just got passed around from one friend to the next." Either that, or someone has the Federalist Society mailing list saved in their Outlook Contacts.

The lady doth protest too much, methinks.

TO VIEW THE ENTIRE LIST, WITH NAMES, JUSTICES OR OTHER BACKGROUND INFO, CLICK HERE.
PLEASE CREDIT NOMINATION NATION WHEN CITING THE LIST.

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Senator Spectator collaborated on this report.

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For a list of the Supreme Court clerks who were there when Bush v. Gore was decided, check out this post at the blog Underneath Their Robes.

For more on the Vanity Fair article, check out this post at Life, Law, Libido.

Do We Need More Judges?

2004-09-29T10:40:00.000-04:00

The media, the politicians and, well, all of us here at NN tend to focus on current judicial vacancies when discussing who should and should not be appointed, confirmed, filibustered, etc. We talk about judicial emergencies like an entire circuit is on the verge of collapse. We talk about how failure to confirm a nominee may shut down the entire federal court system. But are we missing an even bigger problem? Outside of the (relatively) small number of open seats on the federal bench, is there a need for even more judges?

That was the topic of a hearing last summer of the House Judiciary Committee Subcommittee on the Courts, the Internet, and Intellectual Property. The hearing was convened to discuss the proposal of the Judicial Conference of the United States for the creation of 11 new Courts of Appeal judges, 46 new District Court judges, and to make permanent 5 temporary District Court judges (available here; see pp. 18-20). Among those testifying were Judge Dennis Jacobs (CA2), William O. Jenkins, Jr. from the GAO, law professor Arthur Hellman (Pitt), and Rep. Howard Berman (D-Cal. 28th).

Professor Hellman provided the most thorough and interesting testimony, in not only supporting the Conference's recommendation for creating new judgeships, but also criticizing the failure to push for the creation of even more. In particular, Hellman finds fault with the Fifth and Eleventh Circuits, who voluntarily agree to deal with their growing caseloads by funneling off cases deemed less meritorious to a summary or NOA (no oral argument) calendar for review. According to Hellman, the reliance on staff attorneys and clerks, and the resistance of new judgeships in these circuits, "runs the risk of compromising 'the appearance of legitimacy of the appellate process [and] the quality of appellate justice.'"

By way of numbers, CA5 and CA11 have much higher "adjusted filings" (statistical calculation of cases per judge based on a nationwide appellate baseline) than the other circuits -- indeed, almost twice as many as in the circuits identified by the Conference as requiring additional judgeships. If the recommendations regarding the other circuits were applied to these two circuits, Hellman explained, CA5 would need 28 judges, and CA11 would nearly double in size to 22.

But, alas, the Conference does not recommend an increase in judges unless a particular circuit requests one. And the judges on the Fifth and Eleventh just don't seem to want to grow. I recently had an opportunity to chat with several judges on the Fifth Circuit. While acknowledging that there was a lot of work to be done, they unanimously agreed that it was manageable, and that they didn't want the court to get any bigger. The bigger the court gets, one of the judges explained, the less consistency there would be in the law of the circuit, leading to the undesirable result of more en banc hearings. This view was echoed in the comments of Judge Tjoflat (CA11), reported by Professor Hellman in his testimony. Hellman refutes these concerns by changing the focus to the quality (or lack thereof) of the actual work produced by the circuits:

I have no doubt that the judges of the Fifth and Eleventh Circuits believe that they are giving adequate attention to the cases and have not compromised any of the essential functions of an appellate court. But I am not confident that judges can necessarily recognize when they have gone too far in relying on procedural shortcuts or when they have begun to delegate responsibilities that they should be undertaking themselves. For example: Do the judges too readily accept the drafts of precedential opinions prepared by their law clerks? Do panel members sign on to the authoring judge’s opinion without carefully scrutinizing the statements of law or the rationale? Do the second and third judges on a screening panel defer too much to the judge who initially reviewed the case? These are not lapses that occur overnight. Change is gradual and incremental, as judges imperceptibly find themselves adopting practices that they would have rejected when caseload pressures were less exigent.

Professor Hellman concludes his testimony with a (somewhat) radical proposal to change the process of how we decide whether new judgeships are needed. He says that the Conference should continue to ask the individual circuits if they feel that they need help, but that after the circuit responds, there should be an opportunity for dissenting judges, and the public, to comment on the recommendation before being adopted into the final report transmitted to Congress (in a process similar to administrative "notice and comment" rulemaking).

What do you think? Tell us your opinion in the comments section below this post.

For more on this interesting debate over how to deal with the increasing caseload of the federal judiciary, including anecdotes and views from different circuits, check out what the Greedy Clerks have to say starting with this post and continuing on from there.

(Thanks to GC contributor "JBT33" for the heads-up.)