NINOMANIA

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:: Wednesday, July 20, 2005 ::

ROBERTS!

Real quick, since I'm at the Southeast Association of Law Schools conference on Hilton Head, life is rough, yeah yeah I know.

I've seen Judge Roberts in action at an appellate argument, and he is an awesome lawyer. He is not, afaik, closely associated with specific interpretivist and/or conservative positions, but he has been an advocate in conservative administrations.

His philosophical credentials my at first glance seem less than Justice Kennedy's (Kennedy used to represent the California Catholic bishops on life issues back in Sacramento, didn't he?), but otoh Roberts has one thing that has been proved necessary for reliability on the Supreme Court: Washington experience. Not to put too fine a point on it, if they were gonna get him, they'da got him.

More as we go on.

:: David M. Wagner 9:42 AM [+] ::
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:: Monday, July 18, 2005 ::

Nomination expected soon; the name of Mary Ann Glendon begins to surface. "Glendon of Oz, the Good Witch of the North," I've always called her!

:: David M. Wagner 9:39 PM [+] ::
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:: Saturday, July 16, 2005 ::

D.C. Circuit, in suit brought by congressmen, holds FEC must issue tougher regs under McCain-Feingold.

Oh boy, the issues for appeal:

* legislator standing
* nature and degree of deference due to agency interpretation of statute
* power of courts to remands regs to agency after Whitman v. American Trucking
* The First Amendment, in case anyone still cares about that, which in the McCain-Feingold context it appears they don't.

:: David M. Wagner 3:16 PM [+] ::
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No Rehnquist resignation.

Casebookmeister Doug (click here for casebook) says at NRO that this is good because "every factor in the nomination process was going to use multiple vacancies to politically horse-trade to the ultimate disadvantage of the integrity of the Court."

Lyle Denniston says: "This puts all of the emphasis on O'Connor's replacement, and will likely increase the demands of his strongest political followers that he put forward a presumably reliable conservative[.]" Human Events profiles the groups that constitute the presumed anti-nominee players.

:: David M. Wagner 2:52 PM [+] ::
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:: Wednesday, July 13, 2005 ::

Various sources are reporting Bush's remarks that he might consider someone not presently a judge.

In The New York Times's piece on this theme, we also read:

Democrats were said by two officials familiar with what took place on Tuesday to have broached the names of at least three judges of Hispanic background who they believed had a strong chance of being approved without a tumultuous confirmation fight: Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit, Judge Edward Prado of the United States Court of Appeals for the Fifth Circuit and Judge Ricardo H. Hinojosa of Federal District Court in Texas. Mr. Leahy would not confirm that those names were mentioned, but said he saw them as strong candidates. These particular judges have not been among the top possible nominees mentioned by Republican allies of the White House.

Emphasis added. Since Hinojosa's name has now come up, I am at liberty to mention something told me by another blogger who wishes to remain pseudonymous but whom I trust, specifically, that a person or persons unknown reached his blog via the search string "Ricardo Hinojosa gay." My friend stresses that the search turned up no evidence to support the implied rumor.

:: David M. Wagner 5:17 PM [+] ::
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"Rehnquist hospitalized for fever." No word on whether he is being given an MRI to see whether he plans to resign.

A Caspar WY paper touts Colorado Supreme Court Justice Rebecca Love Kourlis, a "moderate Republican" (which usually means abortion enthusiast) appointed by a Democratic governor. Note that the kind words from the office of the present Republican governor, Bill Owens, are as warm as day-old tea. Let's hope this is mere stroking of Sen. Ken Salazar (D-CO), the way Reagan and Bush I used to stroke D'Amato (who shouldn't have needed stroking, but what the hey) by pretending to consider 2nd Circuit Judge Roger Miner.

:: David M. Wagner 5:06 PM [+] ::
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:: Tuesday, July 12, 2005 ::

Back to the Ten Commandments issue

With Supreme Court rumors temporarily locked into a holding pattern, let's go back to MacReary, the decision striking down the Kentucky courthouse display of the Ten Commandments.

The opinion by Justice Souter for the Court breaks no new ground, but it clarifies the state of play. It is based on three pillars: original intent, precedent, and religion as divisive.

1. Original intent. Justice Souter virtually concedes that there is substantial evidence of noncoercive governmental endorsement of Christianity in the founding era, but insists that by tossing Jefferson's refusal to issue a Thanksgiving proclamation into the mix, and tossing in after it some second thoughts by the aging and long-retired Madison, he can flip the original intent factor over to his side. According to him (and I guess the Court, at least for now), evidence of public secularism by the Founders supports his point, while evidence of their public Christianity only means "Homer nodded," as Souter puts it, quoting from his own Weisman concurrence.

2. Precedent. Boils down to: Even if we've been getting the Establishment Clause wrong for 58 years, still, 58 years is a long time, and stare decisis, you know. Actually it's hard to see that many expectations have formed in reasonable reliance on Everson and its progeny; to the contrary, local governments will keep putting up all these sodding creches and Commandments displays, won't they? It seems that far from relying on Everson and Lemon et al., people are relying on their eventual overruling. But never mind.

3. Religion is divisive. This is a regularly recurring trope in the Everson line, especially in McCollum (with only Zorach as an unexpected exception). Oh, the rivers of begged questions:

* Is religion always divisive? Was Scalia wrong in arguing that the graduation prayers in Weisman were a unifying experience, multicultural in the best sense?

* Even if religion is always divisive, does that have anything to do with the text we're supposed to be interpreting? That text's commandment (so to speak) is: don't set up a state church; not, keep all public space antisceptically secular.

* Even if religion is always divisive and the Establishment Clause licenses the Supreme Court to enforce the consequences of that 17th century insight (generally seen as derived from the Thirty Years War and the Peace of Westphalia), does keeping public spaces rigorously secular, by court order, really conduce to religious peace? Does anyone think religious tensions were lessened in McCreary and Pulaski Counties, KY, by the Court's decision? I have no reason to think they were actually inflamed by it, but neither is there evidence that they were inflamed before, unless the litigation itself proves religious inflamation. After the McReary decision, however, one must assume that Christians in those counties are angry. Funny how making Christians angry is so often seen as the way to prevent "religious divisiveness."

:: David M. Wagner 11:39 AM [+] ::
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:: Monday, July 11, 2005 ::

Could somebody have read my Standard op-ed? The Baltimore Sun reports: White House in no rush to pick court nominee.

:: David M. Wagner 3:39 PM [+] ::
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Drudge: REVEALED: INSIDE A MOVEON SUPREME COURT HOUSE PARTY; TAKE 'BUSH LIAR' T-SHIRTS OFF

:: David M. Wagner 12:45 AM [+] ::
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:: Friday, July 08, 2005 ::

The Daily Standard:
Toss Away the Left's Schedule Sheet
Why the president should wait to announce his Supreme Court nominee(s).
by David M. Wagner
07/08/2005 3:00:00 PM

:: David M. Wagner 4:40 PM [+] ::
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:: Thursday, July 07, 2005 ::

Sobering. Novak says:

1. Rehnquist will probably resign too, making the announcement within days.

2. Bush is personally piqued by criticisms of Gonzalez, and could nominate him just to show he sticks by his friends. If there are multiple vacancies, this is all the more likely, but also less destructive, assuming the other nominee is from the A-list (Alito, Brown, Garza, Jones, Luttig, Owen, Roberts).

While the Democratic huff-and-puff has been about the advice-and-consent function as an ideological check (by the left against the right, not the other way around, cf. confirmation process of Ginsburg, Breyer), Novak -- with Gonzalez foremost in his sights -- reminds us of what the Senate's role in Supreme Court appointments is really about:

The Founding Fathers put the Senate ''advise and consent'' clause into the Constitution partly to combat cronyism. In Federalist No. 76, Alexander Hamilton opposed the president's nominees ''being in some way or other personally allied to him.'' Thus, the wonder in Washington is that a peeved Bush would defend Gonzales' selection on grounds of personal pique. So much is at stake in these Supreme Court nominations that surely the president must realize this situation transcends loyalty to a friend.

:: David M. Wagner 10:48 PM [+] ::
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:: Wednesday, July 06, 2005 ::

Drudge: SEN. SCHUMER CAUGHT ON CELLPHONE: 'WE ARE GOING TO WAR' OVER SUPREME COURT.

Since Schumer isn't waiting for a nominee, here's a strategic suggestion for the administration: make Schumer -- and Teddy K. -- the issues. Especially if it's a pleasant-looking nominee like Emilio Garza. "Hey America, do you like this guy, or one of these guys?

Actor-politician Fred Thompson has already been chosen to lobby the Senate for the nominee (again, w/o waiting for a nominee announcement).

:: David M. Wagner 4:11 PM [+] ::
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:: Friday, July 01, 2005 ::

Drudge:

Sen. Arlen Specter, the Republican head of the Senate Judiciary Committee that will take up the nomination, said he would hold hearings in August if necessary. "The judiciary committee is prepared to proceed at any time," he said.

:: David M. Wagner 8:19 PM [+] ::
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Justice O'Connor's resignation letter: her resignation is to be effective upon the confirmation of her successor, so apparently, if this administration messes up confirmation politics as badly as it messed it up (mainly by doing nothing all summer) in the case of Judge Bork, and it takes until February to confirm a successor, then O'Connor will be on the job and functioning until then.

Meanwhile, The Washington Post says:

The White House said later no announcement will be made until the president returns from the G8 summit in Scotland. He is scheduled to return on July 8.

Now, me, I can't see any reason to name a successor any time before Labor Day. That's long enough before the first Monday in October to give the Senate time to do a serious and proper advice-and-consent job, the more so since both "sides" already have thick files on all possible nominees. What a Labor Day announcement does not leave time for is a concentrated, professional, grass-roots campaign against one particular nominee. And the White House shouldn't leave time for that.

If a nomination is announced earlier, it should only be because either or both of two conditions prevails:

* Sen. Specter has promised to hold hearings during the summer, rather than waiting until September, and there are political hostages to make sure he keeps that promise;

and

* Activist groups supporting the President's nominee are organized and ready to go this time, in a way they weren't in 1987.

:: David M. Wagner 1:03 PM [+] ::
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O'CONNOR RESIGNS.

:: David M. Wagner 11:38 AM [+] ::
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