ConfirmThem

It makes no sense for certain conservative Republicans to say that it is now alright to ask questions of Neff concerning same-sex marriage, when they said earlier that it was NOT alright to ask questions of Roberts and Alito concerning Roe and abortion. In either case, the nominee is being asked to answer questions about the constitutionality of cases that may come up in front of him one day. I think Neff is in the right in this circumstance. She should politely reply that she cannot answer questions of that nature without giving the appearance of partiality.

Brownback's hold on Neff appears to have caused Levin to not only hold back Michigan nominees but also 14 other judicial nominess:

"Neff's nomination had been part of a compromise agreement between the White House and Michigan's two senators, Carl Levin and Debbie Stabenow, both Democrats, for filling three seats on the federal bench in Michigan.

In retaliation for Brownback's move, Levin and Stabenow placed holds on the nominations of the two other federal judges from Michigan, considered to be conservatives, in late October, the Associated Press said.

Aides to Grassley said the holds by Levin now have expanded to include 14 nominees, including Jarvey. Levin's office did not respond to a request for comment. Jarvey also did not comment. Nominees generally are instructed to avoid speaking to the press."

http://desmoinesregister.com/apps/pbcs.dll/article?AID=/20061123/NEWS09/...

It's posturing and it's stupid since it breaks an agreement between the GOP and the Dems.

As usual, it will have no end of recriminations.

Come on Sammie, you're not going to be Prez or VP, just let this slide through and go back to being a popular Kansas senator.

Just a pitiful attempt by Brownback to curry favor with Evangelicals towards a POTUS campaign that will likely do as poorly as John Kerry's.

An awful tactical mistake, as well. This will hurt the cause of conservative judges terribly, although it really is just a final nail in the coffin of disasters the last six months have been.

its a mistake yes, but I hardly think its any type of ploy.

The Bush administration must be prepared to name nominees to every vacancy at the start of the next Congress. It was a mistake over the last year to make nominations piecemeal and haphazardly - a trickle rather than a flood. The best move would be to throw them all out at once. The shear volume will force the Dems to address many of them in a timely fashion. It will also permit the most amount of time for confirmation, and for the Reps to use the issue of uncomfirmed nominees most effectively in the next election.

The continued vacancies on the 4th Circuit without nominees are the most egregious, and are really unforgivable on the part of this administration.

While I agree with Brownback that Neff doesn't belong on the bench, that's life now that we lost the Senate. So grow up, lift the hold, and use it as campaign fodder if you think it will play. We need to stop being the "party of the stupid" and begin to pick our fights more carefully, or none of W's nominees will make it through. Levin alone can and will tie us in knots, and while I despise him, I do give him credit for being a better, and dirtier, cage fighter than anyone on the red team.

Has there been any more talk about the possible retirement of John Paul Stevens? My own view is that the story was a leak designed to juice up the conservative base. Afterall, judicial nominees won the elections in 2002 and 2004. Given he recent election, I think it's much more likely that Stevens will hold on for dear life in hopes of having a Democrat President replace him.

Still, if conservatives get lucky and Stevens does retire, I think a lot of thought and consideration should be given to Joy Clement. She may not be the youngest choice or most publically conservative choice, but she has many positives. She was confirmed by Schumer and the boys in 2001 by a vote of 99-0 and she lists Scalia as a friend. Most importantly, she has the backing of Robert Bork.

All this will be for naught though. I doubt Stevens will retire and it could be horrible if he does. Bush wants harmony and accomplishments on the way out. I think one of those harmonious accomplishments may be the desire to get a nominee on the Supreme Court by a vote of 100-0. Say hello to Justice Consuelo Callahan, the newest member of the liberal block on the Supreme Court.

both Schumer and Durbin have come out in about a one- or two- week span to say no more Justices (Durbin may have just said judges) like Alito and Roberts would be confirmed now. I don't know whether that indicates they expect a retirement or not.

Though I can't claim to read the inscrutable mind of Justice Stevens, it is possible that in his view he has the best of both worlds now, with a Republican President (if he still has the loyalty it is reported he once professed) and a Democrat Senate (making it impossible to get a known quantity through).

will no doubt say that it's not good enough to release the hold on Neff. I bet they take the position in this lame duck session that they won't release other holds unless she is confirmed.
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Bipartisanship = give + take. Republicans give. Democrats take.

Whacker77,

Bush has rarely sought harmony (and I mean that admiringly) so i don't see why he would do so in his lameduck years. No, he will not pick a SCOTUS nominee for his/her consensus appeal, we can be pretty sure of that.

I too like Edith Brown Clement quite a bit.

Schumer and Durbin would most likely have said the same thing if the Democrats were still in the minority, so they don't bother me that much. Given the makeup of the new Senate, I wouldn't expect to see another Alito, but I think it will be harder than Democrats think to block a qualified female nominee. Obviously Janice Rogers Brown would be a no-go, but there are conservative women that Democrats have already easily confirmed. That's why I think Joy Clement deserves a serious look if another spot opens.

If Bush is smart (that remains to be seen), he and his allies will note Clement's 99-0 confirmation over and over in the press. The fact that she has the backing of Robert Bork won't be enough to kill her nomination. It's important to me and other conservatives, but it won't have any sway with the public in general. What will have sway with the public is Clement's gender, her 99-0 Democrat controled confirmation, and the lack of an over the top conservative paper trail. Let's see the Democrats attempt to trash her.

Now that we no longer control the Senate, we have to be more pragmatic about our desried choices. I would love to see Edith Jones, Janice Brown, or Miguel Estrada, but it won't happen with Democrats in charge. Joy Clement can definitely work and there is an outside chance that Diane Sykes could work as well. Feingold will have a lot to say about that though.

You make good points. Edith Brown Clement (I know she goes by Joy, but that's too familiar - I don't know her!) would be an excellent nominee for all of the reasons you state.

I'm not sold on the fact that JRB and Miguel Estrada are now precluded due to a Dem Senate and their past controversy/filibusters. Those were COA nominations, and 99% of the American public didn't pay any attention and have no idea what the COAs are. The Supreme Court is another story altogether. Universal around-the-clock media coverage. I don't think Chuckie and Teddy will get away with demonizing the first black female and/or the first hispanic SCOTUS nominees the way they did when they were COA nominees. And don't buy the crap that Cardozo was hispanic - he was descended from Portuguese Sephardic Jews - that's not hispanic.

The timing of any vacancy is crucial. If there's an opening in 2008, there's no way a Democratic congressional majority would allow Bush to fill it. If it's 2007, Bush gets one try, two if he's lucky. There's really no margin for error here. A Clement nomination puts pressure on red state Democrats, but she'd have to come through the hearings without a hint of problems- since Democrats will seize on any excuse to block a Bush nominee. Assuming the next retirement is Stevens, the Dems will do whatever they can to deny Bush his nominee-even an innocuous one like Clement. And if that nominee goes down, there's a high probability Reid and Leahy will run out the clock.

That's why I favor appointing a sitting Senator. In addition to making the Senators squirm, it will put Senate comity in the balance against Democrat obstruction. To deny a colleague the courtesy of a vote and then have to deal with that ex-nominee every day for the rest of their congressional careers is a very unpleasant prospect even for Democrats. Will 51 Senators foul their nest in order to keep a colleague off the Supreme Court?

I think that is where Bush's leverage lies.

JRB, Estrada, Dinh, McConnell, P. Clement, Lee Rosenthal, Easterbrook, EB Clement. Bush should put them up in that order, should any be defeated. Let's see the Dems try to defeat and demonize the first ever black female, hispanic, and Asian-American nominees, respectively. Oh yeah, and they're all brillant, respected, and conservative. Screw the Dems!

Nominating a Senator isn't necessary. If the Dems obstruct successfully and we get into 2008, Bush can (and likely will) recess-appoint someone to SCOTUS, and leave it to the next Senate to confirm. It has been done many times in the past, and can be done again. But I don't think it will be necessary. I think the Dems have much less leverage here than many people realize.

Your view assumes we win the White House in 2008. I want to win it too, but I don't think we can count on it. The prize is a constitutionalist majority on the Supreme Court. We can't be assured that we'll get another chance in 2009.

As much as I would love to put up JRB or Dinh or Clement, consider the timing issue. First, Leahy will "prepare" for the hearings for at least three months, perhaps four. If they can find an angle to demand documents from the executive branch, they'll do that too. Then they will have their circus for several weeks. Then they will vote the nominee down in committee. Then we'll have a big fight about the courtesy of a floor vote (which the GOP may or may not win).

When this is all said and done, at least six or seven months will have passed. If the nomination has failed, Bush will try again. But this time, the time for preparation will take us into 2008. There isn't enough time.

Conversely, the nomination of a sitting Senator brings the institutional weight of the Senate to bear on behalf of the President. We can win this battle, but we need the right strategy.

Here's Bork's answer on a radio discussion Oct. 28, 2005 re which people he would like to see nominated:

"Ithaca, N.Y.: In your judgment, who are the three most desirable persons that Bush should consider nominating to fill the Supreme Court vacancy?

Robert Bork: I haven't got a list of three, I've got a list of about eight and I can't very well pick three from that group. Ted Olson, Raymond Randolph, a judge on the D.C. Circuit Court of Appeals, Frank Easterbrook (also a Court of Appeals judge), Michael Luttig, Jay Harvey Wilkinson, Edith Clement, and Edith Jones. There's also Samuel Alito."

If Brownback cares about the country rather than his deluded '08 presidential ambitions, he will drop the hold on Judge Neff.

The hold accomplishes nothing, and it gives the Dems an excuse to hold up the other two nominees to the W.D. Michigan -- both well-qualified & philosophically conservative (Grand Rapids partner Robert Jonker & MI state trial judge Paul Maloney).

For better or worse, Bush made this deal with the Dems: Neff in exchange for Jonker & Maloney. Having lost the majority, we are not in a position to renege on the deal or demand renegotiation.

Moreover, the Western District of Michigan is swamped with work. There's only ONE SINGLE ACTIVE JUDGE on the court, CJ Bell. They've had to burden their Senior Judges with a full caseload, and conscript judges from the E.D. Mich. to help out. And they're still not able to keep up. Both the quality and timeliness of decisions will suffer, if they haven't already -- through no fault of the WD Mich judges and their clerks.

We have to get Maloney & Jonker to the floor for a vote while we still have the majority. Brownback needs to grow up and drop his hold NOW.

I do not want a sitting senator or any politician for that matter nominated for the Supreme Court for several reasons:

1) Politicians have not worked out well as SCOTUS justices in the past for Republican presidents. Neither former politicians Warren or O'Connor were good choices for conservatives. Too often former politicians are more interested in the political repercussions of their decisions and not the correctness of their preferred form of judicial interpretation.

2) Despite passing laws, most senators are frequently unaware of the legal ramifications of their bills, which usually are written by underlings and reviewed by legal counsels. I do not want a senator with an incomplete knowledge of law in the context of constitutional and statutory precedence who must spend several years trying to play catch-up with other more persuasive, liberal justices. Sitting federal judges have the best credentials for jumping into the day-to-day dynamics of judicial interpretation without falling prey to the ideology of progressive liberals.

On
1) Just because Warren and O'Connor were former politicians and (in our opinion) poor judges, it doesn't mean that all politicians would make bad judges. John Marshall also was a politician. So was Taft. Both were fine judges. It depends on the individual and their capabilities.
"Too often former politicians are more interested in the political repercussions of their decisions and not the correctness of their preferred form of judicial interpretation"
That's a little light on the data, don't you think?

2) Very clearly, there are some sitting Senators who understand the ramifications of this debate. Among this (admittedly) small group who comprehend what's at stake, we have our best chance at a confirmable nominee

For some reason, there is a belief that it would be easier to get a sitting Senator on the Supreme Court. Hugh Hewitt went so far as to say that Rick Santorum is one of the few people, judge or not, that could get through the new Senate. I find this line of thinking as just plain crazy. Why in the world would Democrats allow a conservative Senator an easy confirmation to the Supreme Court?

Each and every Senator has a public voting record that could be twisted in every direction. Attempting to defend a media/Democrat twisted vote would be a disaster. As for Hewitt's suggestion of Santorum, why would Schumer, Kennedy, or any other Democrat allow a guaranteed anti-Roe vote on the Supreme Court? They won't because they play for keeps and they fight in a no holds barred manner. Sometimes, I wonder if Bush understands that.

There is no more Senatorial deference. Sitting Democrat Senators are not going to give a pass to a sitting or former Republican Senator. That type of courtesy may have existed 20 years ago, but it has since died. The Supreme Court is just too important. If another vacancy appears, we have to be pragmatic and realistic about the choice. A high profile choice would give Democrats yet another opportunity to rasie hell with a sympathetic press. We need someone without sharp public edges who can fly under the radar.

I agree. Senatorial deference or courtesy doesn't exist anymore. The Senate has gotten progressively more partisan since 1994. Democrats would never allow former senators like Spencer Abraham or Rick Santorum to be confirmed simply because both made too many enemies during their time in the Senate. Reid and Leahy would have no problem blocking such conservative nominees just out of spite for their past actions as senators. As far as sitting senators go, the only ones who might be viable are those who come from states with a Republican governor. Due to age and judicial experience, Cornyn probably tops that list, but he too has made enemies with the Democrats. Hatch and Kyl are too old, and Kyl comes from a state with a Democrat governor.

I for one would trade a Senate seat to get Kyl on the SC, that's a great deal for our side, now that we are in the minority.

He was on the Texas Supreme Court before going to the Senate.
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Bipartisanship = give + take. Republicans give. Democrats take.

There's a big difference between a former senator and a current senator. There would be a huge price to be paid for denying a current senator an up or down vote. And once you are on the Senate floor, we have 49 votes to start. None of the RINOs will defect. I think we'd be able to find one more Democrat vote.

The vote count for a current senator would start at 48, not 49. Although it may not be illegal, a current senator voting for his own confirmation could very easily be spun as a conflict of interest. In fact, I think the Democrats could very easily demand that a current senator resign his post before a confirmation hearing in order to prevent such an appearance of undue personal gain.

The last sitting senator to be nominated for the Supreme Court was Harold Burton in 1945. If I remember correctly, he had to resign before his confirmation vote.

One of the many factors in JRB's favor is that she has never worked for a RPOTUS Admin or major corporation, so there won't be any hubbub over document access.

I'm sure Arnie & Pete Wilson would immediately release anything related to her time in Cali gov't before she was appointed/elected to the StateSC.

It will be absolutely impossible to paint her as a crony/insider. She has no connections at all to the Bush family, and Wilson was a moderate governor.

But, again, it's most likely there will not be another vacancy.

If there is, it will be WWIII even if it's Callahan, Prado, or Mahoney, so we might as well go down swinging with our top guns. There is little difference most of the time between a moderate Justice & a liberal one, as Nino has most eloquently state.

FWIW I think the renominations of Bolton & the Fatal Five are indicative that Bush WILL nominate JRB if there's an opening, assuming she really is his top choice. Nothing to lose, everything to gain, and a huge rallying cry.

As for EClem's 99-0 confirmation to the COA, Alito was also confirmed unanimously & widely admired in legal & academic circles.

The more important drum to bang continuously is that Haynsworth, Carswell, Bork, & Thomas all got floor votes in Dem controlled Senates. And nothing could have been more important to Dems than replacing Earl Warren, and Burger went from nomination to confirmation in 18 days in, yes, a Dem controlled Senate.

IMO no RINO would vote against JRB, Nelson would very likely vote for her, and Casey, Tester, & Webb would be sorely tempted to, at a minimum.

Wonderful theatre, I hope it happens. But the WH, Senate, RNC & advocacy groups would have to hit the ground running.

Cornyn would prolly get confirmed & be a fine Justice, but I don't like it on principle. Any other Repub politician that gets mentioned here has no chance and/or is unqualified.

I think if EClem was going to get picked it would've been instead of Miers. Someone mentioned the "new list" of JRB, Keisler, Kavanaugh is indicative of a slate-cleaning, & thus might be the real deal, and I agree with that.

I think Bush has given up on the idea of a Hispanic. All of the Hispanic candidates have problems, to put it mildly.

but there is a big, big difference between the two: Alito was confirmed unanimously 15 years ago, when COA appointees were almost entirely non-controversial. Joy Clement was confirmed unanimously in 2002(? give or take), with the petty partisanship and nefarious obstructionism at its (still unabated) alltime high.

We want judges to STOP LEGISLATING FROM THE BENCH, so why the heck would we want to put a LEGISLATOR ON THE BENCH!? It's just crazy!

It is my contention that once a person has tasted the power of legislating, it is simply too powerful for them to resist in a role as a Supreme Court justice where the only thing holding him or her back from becoming a super-legislator is self control. I think that it is too much to ask of a person. It is better to have someone drafted from the judicial monestary and legal think tank whose primary concern is applying the law as is, not viewing it through the highly tinted prism of how he or she would have crafted the law.

My list probably goes something like this:

1. Edith Jones (I know, I know...but she's still the best)
2. Miguel Estrada
3. Janice Rogers Brown
4. Michael McConnell
5. Frank Easterbrook
6. Edith Brown Clement
7. Paul Clement (future Supreme Court Justice)
8. R. Ted Cruz (future Supreme Court Justice if he doesn't go into elective politics)
9. Viet Dinh (future Supreme Court Justice)
10. Priscilla Owen
11. Lee Rosenthal
12. Peter Kiesler (will probably be on Supreme Court short lists for years to come)
13. Brett Kavanaugh
14. Raoul Cantero
15. Diane Sykes
16. Karen Williams

That "new" shortlist was leaked before the election, and has to be revised in light of it. Certainly, someone like Kavanaugh is off the table given this new Senate. The others are still possible, but less likely given the new Senate.

I'm not sure it's fair for us around here to group Mahoney in with Prado and Callahan. My sense is she is far more conservative than people are giving her credit for. She was/is on the wrong side of affirmative action, but perhaps with Roberts and Alito that will no longer be much of an issue in the future. In this climate, with this Senate, she would probably be an excellent nominee. She's not my preference by a long shot, but I'd deal with her if I had to.

As an Evangelical pastor (I know Brownback's a Catholic, but he's also comfortable with Evangelicals), I wish Sen. Brownback would release his hold so many fine conservative nominees can be confirmed.

I think the confirmation votes of Alito and Joy Clement are very different. As someone else pointed out, Alito was confirmed unanimously 16 years ago, but Michael Luttig was also confirmed in 1992 after helping Clarence Thomas through the Supreme Court nomination process. The big difference with Joy Clement's confirmation vote was that it occured in 2001 when Democrats controlled the Senate.

In this age of hyper-partisanship, especially from Democrats, Clement's 99-0 Democrat controlled confirmation can't be overlooked. In fact, I think it should be a pivotal factor in the decision process. Just imagine the news on the day of her nomination. Most likely, many news broadcasts will beign with comments that go something like this.

"Today, President George W. Bush nominated Judge Edith Brown Clement of the Fifth Circuit Court of Appeals for the United States Supreme Court. In 2001, she was unamimously confirmed by a vote of 99-0 to her current position by a Democrat controlled Senate."

Those are landscape setting comments that can quickly set the stage for wide public support. Just think back to the nomination of John Roberts. Immediately, positive information about him was broadcast to the public before the Democrats had time to unleash their nuclear attacks. In effect, they were nuetered by the positive press coverage. To win this fight, we must set the ground rules quickly and gain the support of the public before Democrats can impose a negative view.

Most likely, many news broadcasts will begin with comments that go something like this.

"Today, President George W. Bush nominated Judge Edith Brown Clement of the Fifth Circuit Court of Appeals for the United States Supreme Court. In 2001, she was unamimously confirmed by a vote of 99-0 to her current position by a Democrat controlled Senate."

Do you really think they would present the information that way? I certainly don't. I believe the vote would be completely omitted, because mainstream media won't want her to be confirmed. For that reason, they will omit anything that would paint a nominee in a positive light.

Sorry, the best that would be said might be, "Today, President Bush nominated Edith Brown Clement to take the position of retiring Justice [name] on the United States Supreme Court. She is currently a judge in the Fifth Circuit Court of Appeals." Note the absence of the vote, the absence of the fact that it was a Democrat controlled Senate, and the fact that she is a current COA judge is mentioned later, denying her the prestige of "Judge Edith...", and no mention of when she was confirmed. Oh, and they have to raise the fact that she is taking the position held by a liberal, so we are very conscious of a conservative replacing a liberal, etc.

The italics should have included the second paragraph, the one starting, "Today, ..." My formatting error...

It would probably go more along the lines of:

"Today, President Bush has nominated a fire-breathing, right-wing activist judge from the most conservative court in the country to replace one of the court's most moderate members, the sainted retiring Justice John Paul Stevens. She was widely thought to be the runner-up to now Chief Justice John Roberts when he was first nominated to fill the vacancy created by the retiring Justice Sandra Day O'Connor. Together, she and Edith Jones, among other controversial members of the 5th Circuit, fought to rob victims of the jackpots handed over by juries as well as to beat civil rights laws into the dark ages much like pouchers club baby seals. Her record stands in stark contrast to the justice she would replace if she is confirmed."

:-)

Although Mahoney is likely superior to Callahan & Prado, nobody would be surprised at all if she went Soutery. Forewarned is forearmed.

Also, her article in the WHR tribute issue of Harvard Law Review greatly disturbed me in a way that's hard to explain. Very similar to the way Estrada's not properly handling Schumer at his confirmation hearings greatly disturbed me.

Both are off my list. Better safe than sorry. I would take JoyClem & Cantero in a heartbeat over those two, tho why bother when there are many superstars available?

EZ, where's Pryor on your list???????? :)

I agree that I probably wouldn't lump Mahoney in with Prado and Callahan. I'd probably prefer her to either of them, but she doesn't make my Top 15, either. Granted, she would be more qualified than many in my Top 15, I just don't know about her method of judging. I'd like to see some opinions from her on the 4th, 7th, or DC Circuits before she were elevated to the Supreme Court.

The women on my list probably go something like:

1. Edith Jones (yes, I know...)
2. Janice Rogers Brown
3. Edith Brown Clement
4. Priscilla Owen
5. Diane Sykes
6. Karen Williams
7. Lee Rosenthal
8. maaaybe Maureen Mahoney here.

Lee Rosenthal is 54 and, like Mahoney, she is a graduate of The University of Chicago School of Law where she also went to undergrad. Maureen Mahoney went to The University of Indiana - Bloomington. She is 2 years older than Maureen Mahoney and has 14 years of judicial experience at the trial level. Thus, she is more of a known quantity than Mahoney.

This is kind of unfortunate because on one hand, it is difficult for me to imagine that a Rehnquist clerk would be anything other than a tremendous justice. I mean, the one we currently have on the Supreme Court is awesome. And, it really is a bit unfair to judge her by the clients she has represented - but that's why we need to see her on a circuit court before she is elevated. That said, when listening to her argue before the Supreme Court and read about her talking about Grutter, it is difficult for me to tell if she is just so self-absorbed that she effuses such enthusiasm simply because she has won a case that brought her a great deal of notoriety, or if she really agrees with the opinion. The question to me is, does she give any indication as to whether or not that is, more or less, the opinion that she would have written?

At the age of 52, if she wants to be a Supreme Court justice, she should really be lobbying hard for a position as the DC Circuit's 12th judge or a position on the 4th Circuit if she wants to get on SCOTUS anytime soon. If she were confirmed for a circuit court vacancy sometime next year, she would probably be the leading candidate for the next Supreme Court vacancy - presuming that she doesn't make any missteps. Maybe we can get a package deal and get Mahoney and Haynes through together.

Agreed. You can almost hear it now... "Just like we later found out President Bush lied about WMD in Iraq, we found out he lied about the fairness of Judge Clement. No way can she be confirmed. He fooled us once, but not again."
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Bipartisanship = give + take. Republicans give. Democrats take.

The media would prolly refer to EClem as "being part of a controversial triumvarte of conservative female judges on the 5th Circuit COA along with Edith Jones & Priscilla Owen; Clement is also a favorite of failed SCOTUS nominee Robert Bork."

As for Mahoney, it's a shame she didn't get thru in '92. I think the ideal spot for her would be replacing RBG in '09, assuming a new Dem POTUS and a new Repub Senate, although that pick will almost certainly go to Sotomayor and she'll be confirmed unanimously within two weeks of being nominated (you see how much faith I have in Republican senators).

I share your enthusiasm for many of the names you've listed, and I would add Sixth Circuit Judge Richard Griffin. He's a brilliant jurist and adamantly opposed to judicial usurpation of legislative or executive authority. In 2005 the Senate confirmed Judge Griffin to the Court of Appeals UNANIMOUSLY (95-0 with 5 not voting).

Good call. I agree that Judge Griffin is an excellent judge and would make for an excellent SCOTUS nominee. But do we really want to take a good conservative off of the 6th Circuit from Michigan and let Levin and Stabenow fowl it all up again?

I meant foul. Still thinking of Thanksgiving dinner.

I'm starting to wonder if some of us here are not mistaken about our certitude that Bush, given he has no further elections and thus nothing to lose, will hold nothing back in putting forward and seeing confirmed a truly outstanding conservative originalist from the many possibilities out there.

I think Bush does feel that way, but is not thinking about a true originalist and/or conservative. I think, given Bush has nothing to lose, he's thinking, as he always has, about Gonzales. Gonzales is his buddy, his confidant, and Bush obviously believes he is a brilliant attorney. Bush has two legacies: courting and sustaining the movement of hispanics towards the Republican party (relatively speaking), and fighting the war on terror. In Gonzales, Bush has someone who will advance both objectives/legacies.

The more I think about it, the more I believe this may be a distinct possibility should a vacancy arise in the near future. Gonzales also would be considered by the administration as a "moderate conservative" (cringe), and thus would be used to defuse liberal fears of replacing a liberal (the Dems will say moderate) Stevens/Ginsburg/Souter with an "ultra-conservative" (which they now call Scalia and Thomas, and would no doubt call anyone else Bush nominates). All the supposed conflicts that arose with Miers re White House Counsel would conveniently disappear with Gonzales.

Bush will not do anything to undermine his already challenging task of prosecuting a war. Gonzales would need to answer too many questions. I think Bush will try to do two things:

1) nominate a principled constitutionalist

2) deprive the Dems of an easy way to defeat his nominee.

That's why I expect a Clement-type choice or a sitting Senator.

Matthew,

I basically agree with you. I think Bush would love to nominate Alberto Gonzales to the Supreme Court, but I wonder if such an action wouldn't open up an unnecessary can of worms. Democrats would instantly be able to subpoena all sorts of documents associated with Gonzales' roles as White House Counsel and Attorney General. Does Bush really want to give the Dems access to documents that could be used later in a series of anti-Bush congressional investigations? The Dems would subpoena everything they could find concerning the Patriotic Act, Guantanamo Bay, Abu Ghraib, Iraq and the GWOT in general. Would Bush really want to open up any of those controversial issues even further by nominating Gonzales?

If Dubya wants to nominate AGAG, he should nominate R. Ted Cruz. They're both 1) Hispanic, 2) Texans, 3) Harvard Law graduates. Except that R. Ted Cruz is more conservative than AGAG and had clerkships with J. Michael Luttig and Chief Justice William Rehnquist. As one of the most skilled orators in the nation, he would dazzle the Senate Judiciary Committee and the nation like AGAG could only dream.

Alberto Gonzales needs to troop down to Texas and run against another former Texas Supreme Court justice, Lloyd Doggett, in the TX25 congressional district. It's a majority Hispanic district that stretches from Austin to the border that is represented by a white, radically left-wing liberal Austinite.

Alberto Gonzales would be a perfect fit for the district. If he ran for and won that seat and U.S. Ambassador to Mexico Tony Garza came back to knock off the aging Solomon Ortiz in TX27, we could have two very powerful new Hispanic members in the House GOP Caucus. It might even be enough to convince Club for Growth-endorsed Henry Cuellar in TX28 to switch parties.

If all of those dominoes fell, the Texas GOP delegation would be up to 24 (including the almost certainty of taking back TX22 as long as there is an R on the ballot.) That would be 4 of the roughly 15 seats we need to win back in order to win the House back.

I think we all make a mistake when we assume Bush is committed to appointing another Roberts or Alito to the Supreme Court. I actually don't think he is committed to remaking the Supreme Court. If he was, Harriet Miers would still be an unknown to a large majority of the country. Unfortunately, her nomination was a key factor in the crackup of the conservative coalition that provided Bush election victories in 2000 and 2004.

If you don't believe my views about Bush and the Supreme Court, take a look at Bush's history with the Texas Supreme Court. Bush didn't use his power of appointment to entrench conservatism. Instead, he used his power of appointment to score political points with various interest groups. Otherwise, why would he have named Alberto Gonzales as the Chief Justice. The general consensus about his appointments in Texas was that he turned a conservative court into a more moderate one.

I think Bush may actually feel liberated by the terrible losses we suffered in the election. In his own mind, he may not feel obligated to bow down to conservatives anymore. If this is the case, I don't think we should expect anything when it comes to another Supreme Court nominee. I suspect scoring political points will be the main aim of any future nominee. Given those factors, I don't look for a nominee that will create a fight of any kind. In fact, the only fight may come from conservatives unhappy with a moderate (liberal) selection.

As I've said before, I think Joy Clement is an ideal nominee given the situation in which we find ourselves. I won't make the case for her again, but she may be the very best we can do considering we must deal with a Democrat majority and a wavering President. Unfortunately, I doubt Clement will even get a look. I look for cheap political points to be scored through the consideration of Gonzales, Callahan, or Mahoney. Hell, Bush may even try to appoint Karen Hughes.

Interesting perspective on Texas politics - thanks!

But I have to disagree with you regarding Cruz. Yes, I love him, and yes, he is lightyears better than Gonzales for SCOTUS, but they are quite different in their hispanic roots. Gonzales is of Mexican descent while Cruz is Cuban-American. Mnay if not most Cuban Americans are already Reps/conservative, while the Mexican Amiercan population is much less so. Bush understands this, and has been trying to appeal to this reality for some time. It's part of his Texas roots as well, I believe.

Gonzales was not the chief justice in Texas, only an associate justice, but your point is well-taken.

Bush's heart screams for Gonzo, and if Sandy had retired in '02, up there he'd be.

Supposedly, Bush has offered it to him all three times and he's turned it down all three times.

Wise man. It would be a terrible mistake and there's no way in the world Gonzo has 50 votes to confirm. And that has nothing to do w/his fitness for SCOTUS, which is another matter entirely.

Note that Miers also turned Bush down once, but could not resist the second arm-twist.

Bush simply does not understand judges, but thankfully the JRB-Keisler-Kavanaugh 'list', if accurate, seems to indicate he's at least past both the crony stage & the Rove-Specter-Laura wishlist stage.

I think we probably sell him a bit short here, and though far from my first choice, I wouldn't oppose him (and if we're going for diversity points I prefer a woman, for the day Roe falls, and the only Hispanic woman with any known prospects is Connie Callahan, the only person I would oppose (though I suppose she could only surprise me in good ways)). There are some good things about AG. We can be reasonably confident he would differ significantly in 2 major case areas from Stevens - capital punishment and the war on terror. and considering those are two of the main areas we see the creeping influence of foreign law in SCOTUS decisions, we might reasonably expect AG to reject that approach, which could positively spread to other case areas as well.

I don't know where he stands on gay marriage, and there are concerns about abortion, though I think there are perhaps reasons to hope here (showing signs of doing what he thought the legislation required, not really signalling anything on the abortion issue itself, and perhaps hinting that his own preferece might be different). obvisouly there is probably a problem with aff. action, though as with Mahoney, if that's his only problem, I'd make the deal, since we already have 5 votes there (assuming Roberts and Alito).

and he has done a few things that have raised him in my estimation: his stand on the Jefferson papers, for one; and the one that stands out most, when Lindsey Graham was getting his whiney RINO on: "We are nothing like our enemies, Senator."

again, he's far from my first pick, but he's certainly not my last, and he'd be a big improvement over Stevens. he may or may not complete the transformation of the court, but he'd move it another half step, and allow a Republican president in 08 to complete it. Bush's SCOTUS record will still be the best of any president this century (again, assuming Roberts and Alito stay golden) even if AG is a partial miss (and I think he'd likely still be better not only than JPS, but than AMK, except on aff. act.), and unlike so many here, I DO think Bush cares about the court, and if he trusts AG, I will too.

on aff. act. his "moderating" influence on the line the gov't took in the Michigan cases is probably what gave us half a win there, so that's a mixed blessing, I suppose.

again, he wouldn't get my enthusiastic support, but I'd stand aside rather than oppose. just playing some devil's advocate here, thinking the wailing and gnashing of teeth is probably not warranted (or at least to make sure everyone actually ponders carefully before wailing and gnashing teeth reflexively :D)

The Senate Judiciary Committee has a hearing on Judicial Nominations scheduled next week. Does anyone have any information on whose hearing?

Frist ain't running for POTUS.

Insert joke here.

Not a surprise, as the judicial fights will stain both him as well as McCain. George "Macaca" Allen should bow out too since like Gore, he couldn't win his home state!

http://today.reuters.com/news/articlenews.aspx?type=politicsNews&storyid...

As far as Alberto Gonzales goes, I think he may feel this is his time to shine when it comes to the Supreme Court. I don't know whether he turned down the opportunity both times last year, but it wouldn't surprise me if Bush offered it to him both times. Bush is nothing if not stubbornly persistant. He also favors loyalty above all else and that includes political views.

If Bush goes to Gonzales a third time, I think the odds are much higher that he may accept the offer. Why? Several things have changed. First, Republicans don't run the show and they don't have the same ability to create nomination trouble. Second, Bush has no more elections to lose and probably feels no sense of loyalty towards conservatives. If we raise a stink, he won't care. Afterall, Democrats may cry foul about the torture memos, but end up voting for Gonzales because it's clearly one of the best they can get.

Although conservatives were relatively weak over the last two years even with 55 Senators, we have absolutely no power now. We are at the mercy of a non-conservative Republican and a vociferous and semi-powerful Democrat majority. We can only hope that Josh Bolten and Dick Cheney can reign in some of Bush's more liberal nomination tendancies.

Gonzo's hearings would go torture-torture-torture-crony-wiretap-torture. Plus, Bush'd have to cough up all his papers from when he was Counsel and also come up w/a new AG.

And the base would not be happy. I can't imagine the Dems consider AGAG on the level of Callahan or Prado. I think it would be an unmitigated disaster that unlike Miers would not quickly disappear.

He'd be better than Stevens and maybe even AMK, but I can't see how he'd even get out of committee.

You may be right about the Gonzales hearings, but I doubt Bush would be concerned about the reaction of the conservative base.

about the base betraying Bush than Bush betraying the base

not running, according to reports. I'd imagine few if any tears would be shed at this site on this news, but I thought you'd want to know if you hadn't already heard.

to start a new thread--open or otherwise?

Gonzo's hearings would go torture-torture-torture-crony-wiretap-torture. Plus, Bush'd have to cough up all his papers from when he was Counsel and also come up w/a new AG.

No matter how many papers were turned over, we'd hear one of the following:

• "There are still these other papers they've refused to turn over."
• "These create more questions than answers."
• "We find the information in these papers troubling."

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Bipartisanship = give + take. Republicans give. Democrats take.

Next week, there is a SJC confirmation hearing set for Tuesday (12/5). I hope it is for Deborah Livingston. So far, there are no executive business meetings planned. In order for any of the Fatal Five or Keisler to be ready for a confirmation vote by December 15th (the probable date that the 109th Congress will be adjourned), they must be voted out of committee sometime next week (by December 8th).

As I have stated before, I think Specter will bring up The Fatal Five and Keisler sometime next week. Probably all, except maybe Keisler, will be delayed by the Dems one week. If the initial consideration of the six occurs on Thursday, December 7th, and the Dems delay by one week, then the six will only become eligible for a final vote late in the afternoon on Thursday, December 14th. That is too late for an extended debate leading to a cloture vote and final confirmation on Friday, December 15th.

If Specter schedules the committee votes like I describe, he in essence satisfies both of his promises - to push the nominees through the committee ( a promise to Republicans) but guarantee that none will be confirmed during this lame duck session of Congress (a promise to the Democrats).

Even if they all get voted out of committee the first day they meet, the Dems will make sure none of them get a vote in the full Senate. Specter is irrelevant at this point.

The only question left is whether Specter saves a little face. None of these people will get confirmed. The only exception is if Neff's hold is released, then she'll be the only one confirmed.
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Bipartisanship = give + take. Republicans give. Democrats take.

I am not so sure you are right. Circumstances are lining up now that may allow some of the blocked nominees to get votes in the next two weeks if they get out of committee in time. With Frist not running for President now, he may be more up for a fight over judges - especially since I've heard he'll have plenty of time on his hands for debate and cloture votes. Supposedly, conservatives have decided NOT to allow any of the appropriations bills through because they want the Dems forced into solving them in the 110th Congress. That means some time for judges.

but I see absolutely no reason for the Dems to cooperate in any way shape or form. It's not like the GOP has any sort of leverage over them to make anything happen during this lame duck session, so I see no reason to expect anything useful to get accomplished whether we're talking nominations or anything else.
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Bipartisanship = give + take. Republicans give. Democrats take.

Here's the outline of a deal the donks might buy. Withdraw the Fab Five and promise not to renominate them, since they are dead and we are getting NO political mileage from them, either. Renominate Randy Smith for the Idaho seat on the 9th. Get Brownback to remove the hold on Neff and approve her, along with the other two Michigan judges. Then give R. Smith and Keisler floor votes.

Dems can claim a big victory, and we get two COA judges. If they don't go for this, Frist could hold the session over, perhaps even go nuclear at this late hour. This approach is worth a try, because the alternative may well be that Reid runs out the clock.

I like your idea, but I think Bush is too stubborn to withdraw the Fatal Five. He will probably wait for them to be sent back to White House at the end of the 109th Congress before he decides what to do with them next.

Bush could still do this next year, but why waste time? We are the minority now, and Leahy is an unfortunate reality. I suspect we will have to do even more unseamly things to get most of Bush's nominees through.

What really kills me is that a lot of this can be done much more easily if the WH drove the process. There are non-controversial nominees, like Levi for the 9th and possibly even Keisler, who can get through even with Leahy running the SJC. But they won't make it if Bush does stupid stuff like send up dead nominees that tie up the "clean" ones that otherwises would be approved. Let's get past the theoretical and down to brass tacks. Make deals when necessary, take what is on the table, fill up the pipeline, put district judges onto the bench if COA approvals are slow. This is not hard, but it needs to get done, and the lame duck is a great place to start.

Unfortunately, Bush (or whoever in the White House is actually controlling the process - Harriet maybe?) seems incapable of aggressively wheeling and dealing to get good nominees confirmed.

What does this really mean? Seems to me it means anybody the Dems decide not to oppose, which means there is no such thing. The only one sitting out there the Dems would say in non-controversial is Neff. I recall a couple months ago the talk of how all these various nominees would sail through. OOPS!

It's clear the Dems don't care about qualifications and things like that. They want 100% control to who gets picked whether they have have a majority of votes or not. Their interpretation of the Constitution is:
1) Dem President and Dem Senate: President nominates; Senate approves.
2) Dem President and GOP Senate: President nominates; Senate approves or gets branded as racist sexist hatemongers.
3) GOP President and Dem Senate: President gets to name his choice from a list supplied by the Dems; Senate approves.
4) GOP President and GOP Senate: Same as #3 if there are least 41 Dems.
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Bipartisanship = give + take. Republicans give. Democrats take.