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NINOMANIA:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Tuesday, September 27, 2005 ::
I will be, as matter of fact, with Justice Scalia. He is teaching a CLE on separation of powers, with Prof. John Baker, through the Federalist Society. "With" must be understood in context: I will be one of about 300 participants drinking in Our Hero's words and elbowing folks to get closer to him at the hors-d'oeuvre table. Been there, done that, doin' it again.
If I get a chance to ask him a question, it will be about the nondelegation doctrine, and whether his opinion for the Court in Whitman v. American Trucking means that it is in effect (if not in theory) non-justiciable.
I wonder if a lot of people will be pumping him for his views on Roberts and/or the next nominee. In a way I hope so, because he can't and won't answer such questions, and will therefore find my pedantic little concerns about nondelegation somewhat of a relief.
So anyway, sit tight, visit Confirm Them and other distinguished sites, and I'll blog at you when I blog at you.
:: David M. Wagner 3:56 PM [+] ::
* doubts about Owen
* a case for 4th Cir.'s Karen Williams (see comment 12, but note that Doug Kmiec is not pro-Roe; on that see comment 29)
* a cartoon
:: David M. Wagner 2:50 PM [+] ::
You read it here yesterday. CNN now says:
As for minority candidates, Bush advisers are not ruling out former Deputy Attorney General Larry Thompson as one of the names on the short list.But there's more than that to the story. We also read:
The officials also said the White House is mindful of the fact that Democrats have suggested they would filibuster female candidates Priscilla Owen and Janice Rodgers Brown.Plus, CNN also says Edith Jones is out. That the President is cowering before filibuster threats when there are 55 Republican Senators is very disheartening. However, there's still more, and it's interesting:
Bush earlier in the day hinted he was leaning toward a woman or minority candidate.This has been widely taken to mean that the finalists consist exclusively of women and minorities, which would be fine if the best female and minority candidates weren't being disqualified because of excessive harmony with the President's stated views.
But a closer look at what Bush said about "diversity" shows that he was considering not (or not only) sex and race diversity, but also diversity of "walks of life." If that means anything, its most natural meaning is that he's considering some people who aren't appellate judges or present or former high DOJ officials.
Law professors? Practicing attorneys?
Last time, before Roberts was announced on July 20, this thinking brought Harvard's beloved Mary Ann Glendon into the range of speculation. I humbly suggest that she is indeed being considered. Granted, I've about had it up to here with Harvard nominees, but there's no question Glendon has the kind of gold-plated resume and smoothness under fire that served Roberts so well.
And practicing attorneys? Well, at the risk of perpetuating the Harvard motif, today's featured mentionee on ConfirmThem is Miguel Estrada!
SENATE: But he has no judicial experience!
PRESIDENT: Well who the heck's fault is that?
SENATE: Yours, because you didn't turn over every memo he ever wrote in his entire life.
PRESIDENT: Well I didn't do that on Roberts either so eat my shorts.
One can dream.
:: David M. Wagner 10:00 AM [+] ::
The blogs are all saying the former Deputy AG Larry Thompson is now way down on the list. But a chain of communication four removes from the President has just brought me the (claimed) news that Thompson is "99.9" certain to be the choice. I do not assert that this chain is infallible, only that it includes knowledgeable persons and is asserted to go back to a recent conversation with the President.
I don't know much about Thompson's profile. Conservatives seem to be unexcited about him, but not apoplectic the way they are about Gonzalez. Use the contact button supra to e-mail me about this -- or anything else.
:: David M. Wagner 6:32 PM [+] ::
:: David M. Wagner 6:04 PM [+] ::
Word in legal circles is that Priscilla Owen is set to become the next justice appointed to the United States Supreme Court. Unfortunately, I have received reliable information late this afternoon that Karl Rove, among others, is making a last minute push for the President to consider Alberto Gonzales, despite previous assurances from inside the White House, Justice Department, and Senate that Gonzales was not being considered.That's not good enough. Conservatives got one good year out of Souter (see Rust v. Sullivan), and more than that out of Blackmun.
The President might do better than Owen in terms of intellectual heft (Jones, Luttig) or the ol' Semper Fi spirit (Garza). But Owen is qualified and would make "the base" happy. Pick Gonzalez, or anyone who doesn't cause Chuck Schumer to split a gusset, and the base stays home in '06, Dems retake the Senate, Schumer dictates any '07 or '08 Court nominees, and the Dems retake the White House in '08. I can't believe Karl Rove doesn't see that, or doesn't care.
:: David M. Wagner 2:42 PM [+] ::
:: David M. Wagner 1:09 PM [+] ::
Abraham did not, as Anuzis claims, found the Harvard Law Review. What he founded was the Harvard Journal of Law and Public Policy, which soon after its founding merged with the then-nascent Federalist Society, and has flourished ever since as the Society's quarterly. Abraham is also ranked as one of the Society's founders. All this gives Abraham quite a legal resume (to go with his political one), without making him over a century old.
First Lebanese-American on the Court?
:: David M. Wagner 7:56 PM [+] ::
[W]ith a second vacancy on the court, Mr. Reid could be using his vote to send a message to the White House, which must replace Justice Sandra Day O'Connor, a critical swing vote on the court.What message?
REID: Mr. President, nominate someone I like or I'll vote no.
BUSH: But you're voting no anyway.
REID [Gumby voice]: OH!
:: David M. Wagner 4:55 PM [+] ::
RedState says two names are in play: Edith Jones and Larry Thompson. "Yes," they write, "you heard it here. Edith Jones is in play and it is not just a conservative dream." If the list is literally down to those two, Jones fans should be on the edge of their seats, because Laura Bush is known to favor picking a woman.
Back on July 14, before John Roberts had been nominated for either seat, The Supreme Court Nomination Blog said Jones was "off the table" because of her critique of Roe in her special concurrence in McCorvey v. Hill. On the other hand, in the August 1 Weekly Standard, Fred Barnes reported that the President has got religion on the Court issue, and has built anti-Souter filters into his screening system.
The psy-war being directed against such resolution is intense. E.g., Specter's and Leahy's comments, and frequent "news analysis" remarks such as this in the L.A. Times: "a more contentious confirmation fight over Bush's pick to replace O'Connor — even if it ends successfully for him — could further damage the president at a time when criticism about Iraq, high gas prices and the federal response to Hurricane Katrina have weakened him politically."
To the same effect is a remark (also in a supposed news story) from the New York Times, reprinted here in the Contra Costa Times:
The shifting calculus reflects the increased stakes in replacing the retiring Justice Sandra Day O'Connor as the court's swing vote as well as the expectation that the new nominee will be measured against Judge John Roberts, who was hailed by both parties for his performance during almost 20 hours of confirmation hearings for the post of chief justice.See? Roberts's reticence on speaking about issues likely to come before the Court, far from setting an example, is precisely what Democrats (and possibly Specter) will not let the next nominee do -- or so the NY Times wants Bush to believe.
Otoh, Ed Whelan at NRO has three reasons why the Roberts questioning process makes it more likely, not less, that the next nominee will be a conservative.
If Barnes and Whelan are right, Bush will remember that the GOP has 55 Senate seats. He can lose Collins and Snowe and three others and still confirm a worthwhile nominee. And that's not counting any red-state Democrats who could be brought over. A filibuster would probably be politically unsustainable in the case of a Supreme Court nomination, and in any event could be broken with the Constitutional Option.
Bob Novak says here (scroll down to "Filibustering Priscilla") that Sen. Reid has told the President Judge Owen would be filibustered if nominated. One hardly imagines Owen is alone on this list.
But again, I don't think a filibuster could actually be sustained for a Supreme Court seat; this is just more psy-war. PFAW et al. know that the best way to prevent a conservative from being confirmed is to prevent one from being nominated. While "Borking" can be fun, the Left is more concerned about who actually gets on the Court, and they know that with the current Senate, "Borking" can't be relied upon to work.
Related: MSNBC asks, Which Democrats will vote "yes" on Roberts? Their answer: Nelson (NE) and Pryor (AR). That doesn't mean they'd automatically vote for a conservative nominee for the other seat, but it would mean they are sensitive to pressures in that direction, that the opposition would have to expend resources to rein them in, and that their votes are gettable.
:: David M. Wagner 1:00 PM [+] ::
Conservative strategists are drafting a letter to Democratic members of the Senate Judiciary Committee demanding the release of hundreds of internal memos detailing contacts between the lawmakers and liberal interest groups opposing John Roberts’s nomination to the Supreme Court.
:: David M. Wagner 12:06 AM [+] ::
:: David M. Wagner 11:28 PM [+] ::
BIDEN: That is not true, Judge. Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on. Did she, in fact, somehow compromise herself when she answered that question?
ROBERTS: She said no hints, no forecasts, no previews.
BIDEN: No, no. Judge, she specifically, in response to a question whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland said explicitly: I agree with the majority, and here's what the majority said and I agree with it.
My question to you is: Do you agree with it or not?
ROBERTS: Well, I do know, Senator, that in numerous other cases -- because I read the transcript --
BIDEN: So did I.
ROBERTS: -- she took the position that she should not comment. Justice O'Connor took the same position. She was asked about a particular case.
BIDEN: Oh, Judge --
ROBERTS: She said, It's not correct for me to comment. Now, there's a reason for that.
BIDEN: But you're going from the --
SPECTER: Wait a minute, Senator Biden. He's not finished his answer.
BIDEN: He's filibustering, Senator. But OK, go ahead.
SPECTER: No, he's not. No, he's not.
ROBERTS: That's a bad word, Senator.
BIDEN: That's if we do it to you. Go ahead. Go ahead and continue not to answer.
ME: You'd think a legal epsilon like Biden would show more respect for an alpha like Roberts, but actually, no one who has watched him when he chaired the Committee -- scolding Thomas for believing in natural law, and Bork for not believing in it (there's different kinds of natural law, don't you know) should be surprised.
Back during the Thomas hearings, one of my sons, who was four years old at the time (young enough so that the obscene attacks went over his head), pointed to Biden on the telly and said, "The one with the hammer doesn't know what's going on."
:: David M. Wagner 10:55 PM [+] ::
KYL: There's a story, it may be apocryphal. If so, you can disabuse us of it now. But is it really true that you were required to argue a case before the Supreme Court on two day's notice and on that same day argued a case in the District of Columbia Circuit Court? Or is that not a correct story?
ROBERTS: No, that's the way it happened. I was scheduled to argue in the D.C. Circuit, and what happened is, the Friday before the Monday argument the clerk of the court called. We had a new lawyer who was not yet a member of the Supreme Court bar in the office, and I think we considered it kind of a pro forma matter.
We were moving his admission pro hoc vice so he could argue that day. And I think this was the Supreme Court's way of telling us that they didn't consider it a pro forma matter.
So we got notified the Friday night before the Monday argument that they were not going to grant the pro hoc motion, which is, of course, to let him argue the case even though he wasn't a member of the bar, and it fell to me to pick up that case, to be prepared to argue it Monday morning. Then in the afternoon I went and did the argument in the D.C. Circuit, which had been previously scheduled.
KYL: How'd you do in the two cases?
ROBERTS: Well, the court got it right in each case.
KYL: Enough said.
Intimidating. But consistent with what I saw, the one time I got a chance to watch Roberts in action (before this week, of course).
:: David M. Wagner 10:31 PM [+] ::
:: David M. Wagner 11:00 PM [+] ::
KOHL: Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception. Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?
ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) [presumaby "penumbras" -- DW] and emanations that were discussed in Justice Douglas' opinion. And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.
Emphasis added. It will be interesting to see whether law profs's frantic phone calls to liberal Senators and staffers lead to closer grilling of the nominee on this point on the second round.
:: David M. Wagner 2:19 PM [+] ::
:: David M. Wagner 1:18 PM [+] ::
SCHUMER: ...Just explain to me why you can say it about Griswold, which I'm glad that you did, but not about Wickard. Both of them have been litigated -- tangentially, at least -- in the last five or six years.
ROBERTS: Well, Wickard was litigated directly in the Raich case. I don't think that the issue in Griswold is likely to come before the court. It was unlike...
SCHUMER: Isn't Lawrence an outgrowth of Griswold in terms of what the right of privacy is to consenting adults in their bedroom?
ROBERTS: Well, that's one of the issues. But the difference between the issue that was presented in Griswold and its ramifications of the analysis, those are two very different issues.
ME: I think what he meant was, there's a big difference between a precedent being cited and a precedent being challenged. The continuing validity of Wickard -- challeged by at least one concurrence (Thomas) in Lopez -- was at issue in Raich. The role of Griswold in Lawrence, by contrast, was merely its now-customary place in the "privacy" string-cite that usually starts with Pierce.
:: David M. Wagner 12:21 PM [+] ::
And we are the poorer for it as a society.
All the members of this body know a young man with Down's Syndrome named Jimmy. Maybe you've met him, even. He runs the elevator that takes the senators up and down on the Senate floors. His warm smile welcomes us every day. We're a better body for him.
He told me the other day -- he frequently gives me a hug in the elevator afterwards. I know he does Senator Hatch often, too, who kindly gives him ties, some of which I question the taste of, Orrin...
... but he kindly gives ties.
HATCH: It doesn't have to get personal...
BROWNBACK: And Jimmy said to me the other day after he hugged me; he said Shhh, don't tell my supervisor. They're telling me I'm hugging too many people.
BROWNBACK: And, yet, we're ennobled by him and what he does and how he lifts up our humanity and 80 to 90 percent of the kids in this country like Jimmy never get here....
:: David M. Wagner 12:09 PM [+] ::
When he wasn't drafting opinions in the Thomas chambers, Mr. Yoo sometimes played squash with Justice Antonin Scalia, another conservative hero. Mr. Yoo says he didn't let the justice win, as some other clerks did. A Supreme Court spokeswoman says the justice recalls the matches but doesn't remember losing.
:: David M. Wagner 9:37 PM [+] ::
* Sen. Pat Leahy "will remind us that he was a prosecutor in earlier days (leaving out that it was in Vermont, and mostly of cow tippers)."
* Sen. Orrin Hatch "is under attack back home by a credible conservative challenger who points out that Mr. Hatch has authored hundreds of failed constitutional amendments and sponsored more legislation declared unconstitutional than any other Republican."
* Sen. Joe Biden "graduated near the bottom of his law school class, and he will show it in two ways: He will spend more time posing his questions than listening to the answers, and he will mention terms like 'constitution in exile' as if he were a scholar."
* Sens. Kohl and DeWine: "If PBS and C-Span viewers do not get a sandwich during Mr. Kohl's speech, they will during Mr. DeWine's."
* Sen. Schumer "will start with the premise that everyone in the room is there to see him.... As in his 2003 hearings, Judge Roberts will frustrate Mr. Schumer most, and he'll enjoy doing it."
* Sen. Durbin "is both the most insipid and the most ruthless member of the committee, if not the whole Senate."
* Sen. Brownback: "A rising star with social conservatives, Mr. Brownback is expected to speak truth to power...."
* Sen. Coburn "is perhaps the most fearless Senate Republican, and perhaps the most conservative. He has the advantage of being new to the committee and not wedded to its reindeer games."
Read the whole thing.
:: David M. Wagner 9:20 PM [+] ::
:: David M. Wagner 7:57 PM [+] ::
:: David M. Wagner 7:50 PM [+] ::
It would be great to have "Scalito" on the Court. Btw, one of Judge Alito's very recent clerks tells me that the judge is, in this clerk's experience, the only man he's met in the upper echelons of law who genuinely possesses the virtue of humility -- not the kind of backslapping niceness that masks a huge ego, but the real thing.
His only "issue" is that when Planned Parenthood v. Casey hit the 3rd Circuit, Alito was the only panel member to vote to uphold all the regs, including spousal notification, the only one the Supreme Court ended up disallowing. His answer, at his hearings, should be: "That's what the legislature decided, and I believe in showing respect for the legislature, don't you, Senator Specter?"
NOW and NARAL will buy loud ads saying the world is ending, but they're doing that to Roberts too, and nobody believes them.
:: David M. Wagner 11:22 AM [+] ::
Similar reasons go for Justice Thomas as well, who, I'm just sure, would love to sit down again at that ol' witness table in 325 Russell and talk about ol' times with Joe Biden. Yup.
No, let them do what they've been doing. If Roberts fits the emerging picture -- a "minimilist" conservative with bonhommie coming out his ears -- he'll make a perfect Chief.
Meanwhile, on the Other Seat Watch: the standard list from last July is being endlessly repeated. A Wall Street Journal editorial today mentioned most of the possibilities I did, but regreattably leaving out Garza, and adding Wilkinson and McConnell. I'm not sure what Wilkinson has done to justify the high regard in which conservatives are constantly said, by the msm, to hold him. As for McConnell, I'd support him, but quite frankly, for me he's a B-lister because he would mean the end of Smith, which I think was rightly decided and very important, as I ranted here.
Edith Jones is widely mentioned, but Red State wonders if all that mentioning isn't perhaps just to keep conservatives happy. Chowderheaded strategy, if so, because conservatives will either be happy or not when the nominee is announced. If it isn't Jones, they won't be a bit happier for having been teased with the possibility, I'm here to tell you.
Red State also says fuhgeddabout Janice Rogers Brown b/c she's just too conservative. Otoh, she's an African-American woman from a Katrina-affected state.
Newsmax, but no one else, is mentioning Senator Mel Martinez, R-FL.
:: David M. Wagner 11:10 PM [+] ::
:: David M. Wagner 2:39 PM [+] ::
:: David M. Wagner 1:44 PM [+] ::
:: David M. Wagner 1:40 PM [+] ::
A Nixonian law-and-order kind of guy, he was Nixon's only success, in four Court vacancies, in appointing a consistent conservative. Once there, he often took on the role of the isolated dissenting prophet of the conservative vision, a role he later passed on to Our Hero, who arguably has now (in part) passed it on to Justice Thomas.
I thought he was sometimes quite wrong. It was a shame, for instance, that in Maryland v. Craig, in his law-and-order zeal, he failed to see the luminous correctness of Justice Scalia's original-intent dissent. But, for having originally and consistently stood as a bulwark against Roe, Rehnquist has earned the praised of what one hopes will be wiser generations of the future.
Thoughtful liberal academics are noting the late Chief's abilities. UVa's A.E. Dick Howard says:
The next chief justice, whether chosen from within or outside the court, has a very high mark to follow. Ideology aside, it's going to be difficult to run the court any better than he did. We will look back on the Rehnquist court as one of the smoothest in the court's history.One hopes (but scarcely believes) that liberals are embarrassed by the antics of Alan Dershowitz, who barely waited for the body to get cold before uncorking all the slanders that were aired, to no avail, when Rehnquist was elevated to Chief. OpinionJournal writes here about Dershowitz's "jaw-dropping performance."
Whom should Bush nominate -- and should he switch Roberts's nomination to Chief and then pick someone else for the O'Connor seat? Roberts strikes me as a "Chiefy" type.
A non-white non-male? By all means. EDITH JONES! EMILIO GARZA! PRISCILLA OWEN! JANICE ROGERS BROWN!
The New York Times mentions Brown here.
Emily Bazelon writes at Slate that Gonzalez is now a possibility because conservatives have been thrown their bone with the Roberts nomination. WRONG-O.
I'm not among those arguing Roberts isn't conservative enough, but he certainly has not left much of a conservative paper-trail, and alternatives who did were available. The biggest fear of conservatives, re S.Ct. nominations, is that the Left will succeed in setting up Roberts as the right-most edge of possiblity. Bazelon's column illustrates this perfectly.
We'll hear a lot in the near future: "You got Roberts, what more could you want?!" The answer: Jones. Luttig. Garza. Alito. Owen. Brown. Roberts is good, but he doesn't set conservatives dancing in the streets. His cautious career demonstrates that he never really wanted to. Thought his bread was better buttered without all that, no doubt. Fair enough. But it would be a mistake for the Bush Administration (a) to think of conservatives as an interest group demanding goodies, and (b), if it commits mistake (a), to think Roberts is goodie enough.
For Bazelon, Edith Clement is "relatively palatable" (that should be the kiss of death right there), but other women eligible for the High Court -- she specifically names Jones, Owen, and Brown -- are "dragon ladies." Whoa! MRAIRRRRRR! Velvet, Emily, velvet! Good kitty. Now. Why are these ladies so unpalatable to you?
Owen and Jones don't simply oppose abortion; they've expressed deep disgust for the procedure itself and the feminist principles it symbolizes.I'll leave it to Mrs. Roberts and her colleagues at Feminists for Life to debate whether an ideology that despises fertility is really feminist. I'll only note here that even proponents of its continuing legality have "expressed deep disgust for the procedure itself," and that feeling that disgust (whatever conclusions you may draw from it) should be a threshold requirement for "judicial temperament."
:: David M. Wagner 9:01 PM [+] ::