ConfirmThem

Thanks, Curt, for pushing this issue.

Do you have any news and/or rumors about pending vacancies? Any idea who Bush will nominate for the 3d/4th/5th Circuits and when? This is unbearable.

not to drop a couple of nominees for the 4th on the SJC already. I can see waiting on the 3rd and 5th for action on Hardiman and Southwick (though if he added an African American to the slate for the 5th, that might take away the diversity whine from Leahy about Southwick). Hillman's been long rumored for Alito's old seat, any news there?

all in all, I'll be happy if Specter's goal of 15 is reached rather than McConnell's 17. I think he'll do it too, or pretty darn close, unless there's a 3rd SCOTUS opening. If my numbers are right, 15 would equal Bush with Clinton not only for his last 2 years, but also the 8-year total.

because we can't count on ANY Circuit nominees getting a confirmation vote in the last 6 months of Bush's term. The Dems think they're going to take the White House, and the closer we get to Jan. 2009, the less incentive they have to "let" us fill any seats that Hillary can fill instead.

We'll need closer to 2 Circuit confirmation a month for the next year.

And we'll also need Bush to finally renominate Kethledge & Murphy for the 6th Circuit vacancies in Michigan...

This whole numbers game business is ridiculous. If there were a 3rd SC opening during Bush's tenure, should we expect to see the following:

"Since the passage of the 20th Amendment limiting Presidents to two terms passed three generations ago, no President has appointed more than two Supreme Court justices. In order to uphold this precedent, we will refuse to act on any nomination President Bush may make for this seat. It will remain open until the next President is inaugurated in 2009."

That's pretty much what we've come to, isn't it?

Huh??

Nixon and Reagan both had more that 2 appointments to the Court. No Supreme Court vacancy has ever been deliberately held open that long so as to allow an incoming president to be able to fill it. It wouldn't happen. The repercussions against the Dems would be severe.

I didn't trust my memory and misread some info, so my attempted humor/satire was a bust. Sorry about that.

I think you are incorrect. Due to a comedy of errors, like the nomination an unethical Abe Fortas in 1968 for the position, the confirmation of a successor to Warren Burger was strategically delayed by Republicans in the Senate in order for a new president (Nixon) to fill the job of Chief Justice in 1969.

Americaforever:
Your comment reminded me of some research that Specter's staff did for his Jan 4 floor speech on judicial nominations. Referring to the so-called "Thurmond rule" Specter asserted that it never really existed as Leahy and the Dems now seem to think. For example, using the last year of an incumbent President's term, during an election year, historically we've seen:
Since 1980, 110 judges were confirmed after July 1st of a presidential election year, 17 of those were to the COA. Using Sept 1 instead, we've seen 63 judges confirmed after that date, 12 to the COA.

In 2000(entire year), the Senate confirmed 8 COA and 31 District court nominees.
In 1992, 11 COA and 53 District Court nominees confirmed.
In 1988, 7 COA and 33 District Court nominees confirmed.
In 1980 (when Thurmond supposedly inaugurated his "rule", there were 10 COA and 53 District Court nominees confirmed, including 4 COA nominees between June 1 and Sept 1(including Ruth Ginsburg),2 more COA nominees afte Sept 1 (including Stephen Reinhardt and Stephen Breyer, the latter being nominated on Nov 13, 1980 and confirmed on Dec 9.

Of course, Pat Leahy is a historical revisionist and will say and do whatever he wants, but it's nice to see Specter calling his bluff right out of the box.

What I meant to say was,

" the confirmation of a successor to EARL WARREN was strategically delayed by Republicans in the Senate in order for a new president (Nixon) to fill the job of Chief Justice in 1969."

Burger, of course, was the man Nixon eventually chose to replace Warren.

I am a little hesitant to use the raw number of 15 as a benchmark for the number of confirmations that Bush should be allowed. Both Reagan and Bush I got around 65% of their COA nominations confirmed during their last two years. Clinton got a dismal 44%. Using 65% as a more appropriate benchmark, that means the Bush II should get around 12 of the present 19 vacancies filled. Calculating in a lost six months to a year due to Leahy's use of a revised Thurmond Rule, it does appear that the Senate should be confirming about one COA nominee every month.

At present, there are four outstanding COA nominees - Livingston, Keisler, Hardiman and Southwick. Going at a pace of one a month, Leahy should have all of them confirmed by July 1st. The White House needs to have the new batch of nominees ready by the end of March to make sure that they have time to be evaluated by the ABA by July so Leahy can start have hearings and committee votes on them this fall.

Thanks :)

But you're right, Leahy & Company may well refuse to confirm any Circuit nominees as we get close to the '08 presidential elections - lack of historical precedent be damned.

Just one quibble: are there 19 Circuit vacancies? The judiciary's website lists only 15, down to 14 now that Smith has been confirmed to the 9th.

http://www.uscourts.gov/cfapps/webnovada/CF_FB_301/index.cfm?fuseaction=...

Btw, there will be two more Circuit vacancies on July 1, when Wm Wilkins (4th) and Harold DeMos (5th) take senior status.

By my count, the total will then be 16 Circuit vacancies.

Although I used 65% as the benchmark in my previous comment, as I have explained before, I actually think Bush II's confirmation rate for his last two years will much more likely be around 50-55% with 8-11 confirmations (including Randy Smith's one yesterday).

First Circuit - 1
Second Circuit - 1
Third Circuit - 3
Fourth Circuit - 5
Fifth Circuit - 3
Sixth Circuit - 2
Ninth Circuit - 1
D.C. Circuit - 2

Good point, though that was more a function of choosing a bad nominee on LBJ's part than the senate's pure obstructionism. And let's remember the Dems had a considerable hand to play in sinking Fortas's nomination.

I think it is entirely possible that if a SCOTUS vacancy opens up in the next two years, Leahy and Reid will do everything procedurally possible to delay filling it. This will be true even if the nominee is a "squishy" moderate. Because they are so desperate to make sure the next justice is a liberal, the Dems will delay in the hope that some new unforseen event will occur that will force Bush to withdraw the nomination within six months of the end of his term. That will allow Leahy to invoke the newly revised Thurmond Rule to stop further consideration, which will in turn effectively allow a new Dem president to fill the position in 2009.

Romney is going to win in November 2008, so...it doesn't much matter how long the Democrats stall. :-)

Unless a justice retires by March of 2008, I cannot envision a scenario that allows a Bush SCOTUS nominee a vote in the Democrat Senate. Should a vacancy occur prior to that cutoff point, I think it's entirely likely that Democrats may totally cutoff the COA nominee votes. We already saw that when the Senate was under Republican control. We may have to trade one Supreme Court justice for 10 to 12 COA judges.

As far a possible vacancy on the Supreme Court, I've conversed through email with both Rich Lowry of National Review and Erick Erickson of Redstate. Both informed me there is simply no buzz whatsoever about a possible Supreme Court retirement. The only bit of information I gathered was in reference to John Paul Stevens. Erick continues to say the health of Stevens in not great.

Unless a bolt of lightening strikes, it may be time to stand down on a Supreme Court nominee for several years. Knowing that death was immenent, I can understand why Rehnquist chose to die in office. Assuming the health of Stevens is acceptable, I can only surmise that he remains on the Court in order to outlast George Bush. If this is loyalty to the Republican party, then loyalty deserves a new definition.

I think Stevens tells people he is a conservative and considers himself as a Republican as a tongue-in-cheek method of sticking it in the eye of the true conservatives that he detests so much. I think Souter could also care less about the president or party that put him into power. He probably feels vindicated in hating conservatives because of the way he has been constantly ridiculed in their press. The conservative mantra of "No more Souters!" must be humiliating to him.

Bush would not leave a vacancy open on SCOTUS in the unlikely event the Dems could hold up a confirmation. He would simply make a recess appointment as many presidents have done in the past (sadly, that's what Eisenhower did with Brennan!).

Although there likely won't be an opportunity to nominate another justice, a recess appointment would be worthless. If a Democrat wins the presidency and a the Democrats increase their Senate majority, the recess appointee would never receive a vote. He or she would simply lose the seat at the start of the next Congress. Other than Robert Bork, what conservative would be willing to go thorugh such a farce? It would be inetersting to see Bork finally sitting on the Court though.

Don't worry, that's a mistake even Harriet Miers could make ;)

Matthew, I agree about a recess appointment if the Dems choose to go that foolish route. And though I wouldn't nominate him under other circumstances, the perfect recess appointment is Miguel Estrada.

I like your optimism, and hope you're right! What would you like to see? Mitt-Rudy? Mitt-Condy? Mitt-?

I heard a Rudy fan call Hannity a couple days ago and suggest Rudy-Mitt!

is my favorite right now. though Newt seems cozy with Rudy atm.

Can the GOP really vote for two guys with 6 marriages between them?

I think that if Rudy gets the nomination, he's going to need Newt to cover his right flank. No ifs, ands, or buts about it. Newt also brings the Washington experience to the table that he needs.

If Mitt gets the nomination, his strategy seems like it would be more up in the air. He is running to the right, so it doesn't seem like he really has a right flank to cover. In this case, I think that bringing Newt onto the ticket would be unnecessarily inflammatory to moderate and independent voters that Romney is going to need to assauge.

I used to be big on the Romney/Rice idea, but the tales of her losing control of the management of the State Department so much so that Negroponte had to be brought over to bring things under control really worry me. It leads me to the conclusion that she would be better in a deliberative body than in an executive role. So, I'm more in favor of the idea of her going back to California and running for Diane Feinstein's seat when it comes available.

I think that Mitt needs a midwesterner more than a southerner to round out his ticket. Not to take the south for granted, but I think that the south will line up behind him solidly simply because there is so much lingering animus towards Hillary (who WILL be the Democrat nominee, I'm certain.)

I think that some great midwestern VP candidates are Mike Pence of Indiana, Ken Blackwell of Ohio, and Tim Pawlenty of Minnesota.

Additionally, I think that Linda Chavez could be an attractive, albeit outside shot, from a ideological as well as demographic point of view. She is from New Mexico and went to undergrad at the University of Colorado.

And finally, Michele Bachmann - though a freshman representative from Minnesota - would be a real force to be reckoned with. She is a strident, Club for Growth-backed conservative and a (very attractive) female from a state that almost went to Dubya in 2004. It's possible that a Minnesotan on the ticket might be enough to swing it for the GOP. If Romney/Bachmann was the winning ticket, Mark Kennedy could go back and run for his old seat, too - which he abandoned to run for the senate seat that Amy Klobuchar now holds.

I like the idea of Mike Pence the most because he would be a great candidate to succeed Romney in 2016, and since Romney is a governor, he is probably going to need someone with Washington experience to round out his ticket. Blackwell and Pawlenty don't bring this to the table.

However, it is possible that - even though he lost the election in 2006 - Blackwell's status as a favored son might be enough to nail down Ohio. Blackwell would also be a great choice to succeed Romney in the future. He also brings diversity to the table - although, as I've commented over on RedState, I don't think this will move many black voters to the GOP column. It could, however, allay fears of moderate white voters when some disturbing teachings of Mormonism on race come out during the course of the campaign.

In the end, though, I think that a Hispanic on the ticket would be best positioned to move the most votes to the GOP - which is why I like Linda Chavez, too. Now, her humanitarianism towards an undocumented person may have hurt her in senate confirmation hearings, but I don't think that it would hurt her with the general electorate. In fact, it would lend a soft face and personality of compassion to the "secure the borders" idea. Now, Linda Chavez as a future potential presidential material? I dunno about that. I'd rather her go back to New Mexico and run for one of those senate seats than run for president.

Then there is Michele Bachmann. Now, she is someone that I think we would be proud to call the first female president of the United States!

I think that the Democrat ticket is going to be Hillary Clinton/Mark Warner (65%), Hillary Clinton/Barack Obama (25%), or Hillary Clinton/Bill Richardson (10%).

Romney should force Clinton to make the first move. If Clinton chooses Mark Warner, I think Romney should take Mike Pence (or possibly Michele Bachmann.) If Clinton takes Obama or Richardson, I think that Romney should really take a hard look at Blackwell, Chavez, and Bachmann.

So, after writing all of this, I think that I've convinced myself that Romney/Pence and Romney/Bachmann are my favorite combinations. :-)

Intriguing list for Romney. I'm comfortable with Rudy, Newt, and Romney in any position on the ticket, and by the time my state's primary come along, it'll be all over, so my voice is somewhat weight-less, all things considered.

On Bachman, have to agree, she's rather endearing and attractive, as well as a good pick for a running-mate. However, her one claim to national fame is trying to make-out with the President at the SotU. How does she overcome that?

Well...it probably sews up the 35% who still approve of Dubya. :-)

1. Bush's last opportunity for a SCOTUS appointment will be this summer should Stevens or Souter retire. If there is no vacancy this summer, Bush will not get another appointment.

2. Should Bush get a pick this summer, he can get a conservative nominee through, even in a D-controlled Senate.
Why? Two reasons:

A. There are a number of red state D's up for reelection in 2008 including Landrieu (LA), Johnson (SD), Pryor (AR), Baucus (MT).

B. And the D's will not be able to filibuster a minority or female candidate. I think Bush would be wise to pick a Miguel Estrade or Alberto Gonzales. Estrada if he wants a fight, Gonzales if he wants less of a fight. Both would be a great improvement over Stevens should he retire.

3. Finally, we need to win the presidency in 2008 to firm up the judiciary. I support Rudy because he has articulated the best position on judges. And I agree that he needs to firm up his right flank with a VP pick. Newt would be a good choice, but I would rather see Newt as a Domestic policy advisor. A better choice VP would be Rick Santorum. The best choice would be Michael Steele, especially if Obama is on the D ticket.

I'm interested to find out what makes Dienekes think Newt is cozying up to Giuliani. Last I checked, Newt was talking up Gov. Romney.

As for EZ's analysis of potential runningmates, scratch Gov. Pawlenty off of the list. He's in Sen. McCain's back pocket. I would also scratch off Rice. It's not happening and she wouldn't be a good president (God forbid) anyway. Blackwell lost, so he's also not on any list.

Michele Bachmann is unacceptable. Way too inexperienced for a running-mate during wartime.

Pence is an excellent choice. Romney should definitely look into him.

My personal pick for the '08 ticket:

Romney/Thompson

"I think Bush would be wise to pick a Miguel Estrade or Alberto Gonzales. Estrada if he wants a fight, Gonzales if he wants less of a fight. Both would be a great improvement over Stevens should he retire."

Surely, you gest with these comments. It would be wise for Bush to pick Gonzales only if wise means alienating conservatives and liberals at the same time. Conservative doubt him on abortion and affirmative action while liberals can't stand him because of the torture memos and the fact he's a friend of Bush. Outside of believing Romney and Newt can win the presidency, this is the craziest thing I've seen written on this site.

I do agree that a conservative nominee can easily win confirmation in the new Senate. In fact, it may be a blessing that Republicans hold a 49 seat minority. McConnell and Lott can do far more to shape the circumstances of a Supreme Court debate from the minority. It's much easier for the minority to shut down the Senate than the majority.

According to Jan Crawford Greenburg, the White House is in the mood for a fight on the Supreme Court. She says Brown, Owen, and Sykes are at the top of the list. Although I believe a conservative can be confirmed, I doubt the Brown and Owen fit into that group. They became radioactive in 2005 and I doubt limp wristed Republicans would back either woman. I look for Sykes and Estrada to be the top two contenders if a spot opens. I don't believe a spot will open though.

Just one last thought. I doubt Owen is worth the fight anyway.

They coauthored a piece in the Wall Street Journal a few weeks back about national security and border security. It was an interesting read.

DEALING WITH HARRY

In the opinion of Senate insiders, the quick and quiet confirmation of a Republican appellate court nominee Thursday would not have happened had the Senate Republican leadership not acquiesced to Senate Majority Leader Harry Reid’s omnibus appropriations bill.

After the Senate Wednesday night voted 81 to 15 to pass the money bill dictated by Reid without permitting even an attempted Republican amendment, Reid scheduled a Thursday vote on Idaho State Judge N. Randy Smith’s confirmation for the 9th U.S. Circuit Court of Appeals. He was first nominated by President Bush on Dec. 16, 2005.

The 94 to 0 vote for Smith’s confirmation can be attributed to the fact he was recently named for an Idaho seat on the 9th Circuit after his earlier nomination for a California seat was blocked by Sen. Dianne Feinstein of California. However, Senate sources say Smith would not have been confirmed any time soon if Senate Republican Leader Mitch McConnell had prevented cloture from being imposed on the appropriations bill.

N more CCA nominations where N equals the number of bills that Harry Reid really wants to pass?

yet it doesn't look good.

an open thread?

I know I'm behind the times, but i just started reading Jan Crawford Greenburg's book, and it's a great but VERY frustrating read. It's frustrating because it's just unbelievable how many mistakes and bungles occurred to give us O'Connor, Kennedy, and Souter, instead of Bork, Ginsburg, Silberman, Winter, Starr, Jones, even Hatch. It seems Bush 41 was quite close to nominating Starr and then Jones until his snake chief of staff Sununu and the liberal Rudman convinced him to go with Souter. Bush even considered Thomas at that point but it was suggested to him that Thomas was too young at that point. Lee Liberman, assistant to C. Boyden Gray and co-founder of the Federalist Society, wanted Easterbrook, but that wasn't even considered.

Totally depressing. I almost feel like stopping my reading of the book. Luttig was against Souter, but he's the one who shot down Starr which paved the way for Souter, so he deserves some blame for Souter. I believe Starr would have been excellent - perhaps not a Scalia, but certainly far better than a Kennedy or Souter. What a disaster.

You said "Starr, Jones".

Hehehehehehehehe.

Luttig deserves his fair share of blame for Souter, though there's more than plenty to go around. The title of that chapter, "The Devil You Don't" says it all. An historic disaster that will be talked about for as long as there is a Supreme Court.

I'm very hopeful that the JRB-Owen-Sykes list is accurate. If it is, I think JRB easily gets the nod. Both Gonzo & Estrada have adamantly refused to be considered on multiple occasions, and it's hard to see either changing their mind. Plus, turning it down once is an automic, permanent disqualifier in my book. See Powell, Lewis for starters. Same goes for Owen & Corrigan.

They, Gonzo, & Estrada would all likely be good, maybe even great Justices, but they'd all be mediocre at best *nominees*.

Quite frankly, if it must be "no white males", JRB's #1 by a mile, and IMO Sykes, Batchelder, & KWilliams all are far behind in one way or the other. Nobody else really appears to be, nor should be, on the radar.

I'm not hopeful at all Bush gets another pick, but you never know. Stevens or Souter could try to have it both ways (retire under a crippled RPOTUS), gamble based on last November's results, and lose badly. It's not only conservatives that screw up SCOTUS decisions, though it often seems that way.

The health of an 87 year old man (or a frail 73 year old female cancer survivor) can turn on a dime, genetic freak or not. Souter is eccentric, to put it mildly. And there would be a tremedous karmic balancing to Souter retiring seemingly out of the blue and being replaced by JRB. The main problem to me is the circumstancial evidence pointing to both Stevens & Souter disliking Bush personally, not just politically.

Dick Cheney has proven that veeps don't matter in elections, unless you're a crook like LBJ that can have his crew hand-deliver a homestate. People vote for the guy on top of the ticket.

That said, I think Newt would be a tremendous veep, both on the campaign trail and in office. Obviously, there'd be some ego issues between him and McCain, Rudy, or Mitt, but I do think Newt is sincere about wanting to get things done, and was humbled & focused by his 'exile' years.

There is a new article up on Jeb quietly supporting Romney: http://www.msnbc.msn.com/id/17187253/

I think there'll be lots of chatter about Jeb in '08, but I'd be shocked if he runs and speechless if he accepted the veep slot.

Here's a suggestion for how Republican Senators should deal with Dems if JRB is nominated.... ;)

http://msnbcmedia.msn.com/j/msnbc/Components/Photos/070216/070216_elepha...

What about Karen Henderson of the DC Circuit? The opinions of hers I've read suggest she's a strong judicial conservative. Anyone know more about her?

Don't forget Lee Rosenthal and Allison Eid. Both highly qualified, both conservative. Rosenthal is an extremely distinguished district court judge who would sail through confirmation. Eid is exceptionally qualified for such a young jurist.

Don't forget Lee Rosenthal and Allison Eid. Both highly qualified, both conservative. Rosenthal is an extremely distinguished district court judge who would sail through confirmation. Eid is exceptionally qualified for such a young jurist.

As I understand it, Karen Henderson is a female version of Clarence Thomas and rarely makes speeches or speaks in oral arguments. Jan Crawford Greenburg has emphasized that one of the main reasons that both Roberts and Alito were chosen were their collegiality. If Henderson is such a quiet person, maybe the White House doesn't think she will be able to effectively use her conservative jurisprudence to persuade the more liberal justices.

As for Rosenthal and Eid, both lack experience as a federal COA judge. Again, as Greenburg points out, COA experience now appears to be a prerequisite for a Supreme Court nomination. The last nominee who wasn't a COA judge was Rehnquist and that was in 1971 when law was a lot simpler. That does not mean that either Rosenthal or Eid would not make a great justice, it just means that they have gaps in their resumes that need to be addressed. Maybe Rosenthal will get one of the 5th Circuit nominations.

As far as I am aware, Rudy Giuliani is the only major candidate this cycle to have argued, and won a case in fornt of the Supreme Court. In fact, if elected, he just might be the only President ever to have argued and won a case in front of the SC. I can't think of any others of the top of my head. Certainly not in the last 50 years.

The case was Bell v United States from 1983. It involved interpretation of a federal statute involving bank theft. Rudy argued for the US and won 8-1. You can read the transcript at Oyez.com. Interestingly, the only dissenter was Justice Stevens.

More interestingly, Stevens is the most likely Justice Rudy would replace if he wins in 2008.

As they say, revenge is a dish best served cold.

There may be questions about Rosenthal's conservatism, but she'd be a quality appointment to the 5th Circuit for sure. I would love to see her and Ted Cruz nominated and confirmed for the Texas slots.

I already posted the below and I don't mean to repeat, but it was posted in the thread pertaining to that silly story about Scalia's daughter -- not the best place for more substantive discussion.

Here's a potential female nominee. Is she too qualified for a district court nomination?

"Fielding just brought her in to work for the WH Counsel's office. Federalist Society member, former Thomas and Luttig clerk, Harvard, top law firm, now WH Counsel's office. And Fielding personally recruited her, so I think it's fair to assume she's impressive not just in a resume sense. And her spouse is part of the conservative legal movement as well. An eye should be kept on her for the future -- our number of well-qualified conservative female potential nominees is embarrassingly low.

http://72.14.209.104/search?q=cache:2Y4b9i93nRIJ:www.wileyrein.com/direc...

Courtesy of http://www.abovethelaw.com/2007/02/musical_chairs_fred_fielding_b_1.php

Sorry. She seems to already have been taken down from the law firm website. This should work.

http://72.14.203.104/search?q=cache:y_SloWWbwEcJ:www.wileyrein.com/direc...

Conservatives are setting themselves up for one hell of a disappointment if they expect anything better than a Kennedy out of Giuliani.

The same Kennedy who thinks terrorists should have Geneva Convention rights, the death penalty is unconstitutional in a wide variety of circumstances, that terrorists have habeas rights and should get lawyers, that the Supreme Court should make tactical decisions in wartime, who's ruled against police and law enforcement in a number of cases?

I don't think so.

I certainly haven't seen any evidence that he admires Kennedy or views him as a model Justice.

Furthermore, as we saw when it came to Harriet Miers, the President does not make the pick in a vaccum. The conservative legal groups, the interest groups, the blogosphere, the conservative meda, the conservative caucus in the Senate etc... simply will not let another Kennedy be nominated. Especially to replace Stevens. The stakes will just be too high. Only someone with an Alito like track record who has been thoroughly approved and vetted by the Federalist Society, the DOJ/OLC, and all of the conservative "pundits" will be acceptable.

Basically, the Miers episode removed the appointment from the President. It's now the conservative movement that makes the decision and the President has to go through them first. The era of the stealth candidate is over.

OTOH, even if you're right, and I don't think you are, I'd take another Kennedy any day over another Ginsburg, which is what we'll see from President Clinton or Obama. Kennedy in a few months will likely provide the decisive votes to a)uphold a ban on partial birth abortion and reverse Carhart b)strike down affirmative action in schools and c)strike down McCain-Feingold and reverse McConnell. Ginsburg and Breyer of course, will dissent in all 3 cases. If the choice is between the two of them, it's and easy one to make.

Certainly a middle-of-the-road judge is preferable to a liberal, but neither should be acceptable under a Rep president. With Hillary or Osama Obama, we'll get 1) Judge Sonia Sotomayor of the 2d Circuit, an activist liberal who would also give the Dems the first latina justice, or 2) Elena Kagan, who though well respected even by conservatives, would be an extremely liberal justice in the Ginsburg mode.

Rudy would be solid on judges, as would Romney, and probably even McCain.

Yes, Kate Todd has an impressive resume, and she's gorgeous on top of it. A bit young at this point, but certainly someone to keep an eye on for the future.

The conservative movement does not control Giuliani. And we certainly don't control Sen. McCain (who is more interested in getting along with the Democrats in the Senate than pleasing us).

Any Giuliani appointment might be decent on law and order/war on terror issues, but if you're looking for a solid conservative nominations because we're just so powerful, you're fooling yourself.

My guess is that another moderate member would team up with Kennedy to hijack the court on all the social issues.

isn't liberal on all social issues. I think he's ready to be the 5th vote to uphold ban on partial birth abortions. And there have been other votes where he and Alito have provided votes 4 and 5.

I'm not defending Kennedy across the board. And I certainly don't want another "Vanilla Conservative" as Jesse Helms called him. I just don't want to see absolute statements made about ANYONE, if they're not true.

Sorry. I forget I'm speaking to people familiar with the law's precision.

The point stands, a 2nd moderate on the court is more likely to push Justice Kennedy to the left than push the court to the right.

I was probably affected by the Afterword of Orson Scott Card's thriller "Empire." I like much of what he writes, but I'd like to find his e-mail so I can join Rush in asking for information on the (never written) book called "Great Moderates of History"!

Not a personal e-mail, but his website does have a contact area.

http://www.hatrack.com/contact.shtml

http://www.intergalacticmedicineshow.com/cgi-bin/mag.cgi?do=content&arti...

your answer disproves your own point. Kennedy is not decent on war on terror issues(he was in the majority in Hamdi, Rasul and Hamdan)nor is he decent on law and order issues(Roper, Atkins, Dickerson, etc...) So, even by your own standards, Giuliani wouldn't select anyone like Kennedy.

If you look at the current court and you ask ,"who is decent on war on terror issues and law and order", the answer is Scalia, Thomas, Alito and Roberts, amazingly the same Justices Rudy said he'd look to bolster on the Court.

Giuliani said Scalia and Roberts (or was it Alito?), but your point is well taken helveticus.

Haridman and three District Court judges will be voted out of committee at the next Business Meeting of the SJC.

http://judiciary.senate.gov/meeting_notice.cfm?id=2554

Does anyone know why Jarvey and Lioi have not been voted on in the full senate yet? They were on the floor with N Randy Smith and those other two DJ before the recess. What is the hold up?

I bought Supreme Conflict last night and couldnt put it down. I just finished a little bit ago. I was surprised at how bad Luttig came off in the book. He was a favorite of mine till I read the book. He really should have followed Alito's advice about how to act when the lightning just doesnt hit you. Instead he had to quit and give up an important seat on the 4th. Im also convinced that as much pressure there is to appoint a woman, it is more important to appoint the best person for the job. The only people left that I believe are ideologically pure and also superbly qualified are Easterbrook and Estrada. Bush should look to them first. If Ruthie doesnt like it, she can go join Sandy in retirement for all I care.

anyone know how conservative he is? he's another young one (turns 42 this year). along with Keisler (47), Livingston (48), and hopefully eventually Paul Clement (41), its good to see Bush is getting some young guns on the bench in the last 2 years. not expecting many others under 50, or even 55, but that's not too bad.

If anyone questions what type of justice we might see under a McCain presidency, read the comments he made today. He said Roe vs. Wade should be overturned. His campaign also announced that Frank Keating, who considered his own run, and Phil Grahm endorsed McCain. Keating went so far as to say that McCain was the only true Reagan conservative in the race. McCain is clearly gunning for weary conservatives.

thanks Whacker. while there are plenty of other reasons to be annoyed at McCain, I've never had much doubt he would appoint decent judges. I'm much more skeptical of Rudy (his likely results, if not his intentions).

I know lots of conservatives are mad at McCain for the Gang of 14, but he would be great at making solid conservative nominees to the court.

I am very willing to forgive and forget, and support McCain, especially due to my fear of Hillary.

I have even less confidence in Sen. McCain than I do Giuliani.

Beyond the Gang of 16 deal we also have his belief in Campaign Finance Reform and his embracing of Hamdan.

You want a guy like this picking your next Supreme Court justice? Aside from opposing abortion, what evidence do you have that he won't cave to Sen. Leahy on the subject?

While you may not like McCain, to say that you trust him even less than Guiliani is just not credible. At least with McCain, we have record of mostly conservatism. While he may have supported campaign finance reform, he has crusaded against pork spending, fought for fiscal discipline, and supported the military. Most importantly, he has always been conservative on the issue that drives this website, the judiciary.

McCain was elected to the Senate in 1986 and his first really tough vote came in October 1987 when he voted to confirm Robert Bork. If there was ever a moment for a moderate to shine, that was the time. Still, he voted for a losing cause and has, throughout his career, voted for conservative judicial nominees. I was unhappy with the Democrat filibuster, but the Gang of 14 gave us Roberts and Alito. Were if not for McCain and his gang, it's far more likely that Bush would have caved to the left with more moderate appointments.

We simply have no reason to believe that Rudy would appoint true conservative judges. How do we know that he wouldn't portray a nominee as a Scalia or Alito knowing full well the nominee was another Kennedy or Souter? We don't. Mentioning names does nothing to speak to his beliefs. Afterall, Bush knows Michael Chertoff, would he have been another Scalia or Thomas? I'm sure Bush would have portrayed him that way though.

William Howard Taft was Solicitor General during the Benjamin Harrison Administration from February, 1890 to March, 1892. He is the only president that I know of to argue cases in front of the Supreme Court, but I may be wrong.

Rudy is a fraud as is Mitt Romney. Neither took a conservative position on anything until they were running for president; even then their records are dubious. They both talk like conservatives but they are almost certainly to well to the left of George W. Bush who is a full-blown leftist on many issues. (pushing amnesty for illegal aliens, trying to givre the terrorist Palestinians a state, Medicare prescription drug coverage, spending like a druken president (oh wait, he is), calling islam a rerligion of peace when it is a terrorist religion, signing McCain-Feingold after vowing its unconstitutionality, putting unqualified cronies in high governmental positions, etc.) If either Rudy, McCain or Mitt is the nominee, conservatism will be doomed nearly as much as it would be under Hillary. Newt Gingrich would be a fantastic nominee, but only one former Speaker of the House (James K. Polk) has ever become president. I don't think that would mean much, but Newt probably doesn't want to be president.

Tom Tancredo and Duncan Hunter are the only candidates that I can see myself supporting right now. Both are fantastic on the border and are true conservatives. The Denver Post even reported that Tom Tancredo was the first GOP member of Congress to publicly come out against Harriet Miers. This shows that he would be very unlikely to appoint anyone other than a strict constructionist/ orginalist on the court. However, both Hunter and Tanredo will probably not be in the race for long, unfortunately.

It's refreshing to see someone call Bush what he is: a big-spending socialist who has induced real limited-government types to go along because of the tax cuts. By exploding non-defense spending FAR above the rate of inflation year after year, Bush has created a string of enormous deficits.

Those deficits, in turn, allow the Dems to make the false but superficially appealing claim that "tax cuts cause deficits."

We shouldn't support any candidate unless he has a proven record of cutting taxes AND SPENDING. I'm heartened to learn that Rudy eliminated the sales tax on some clothing purchases and the tax on commercial rents outside Manhattan. But I'd like to know the exact numbers on City budgets, income tax, and sales-tax rates under Guiliani.

Having said that, my top choices are Congressman Tom Tancredo and Congressman Ron Paul.

How did the Gang of 14 deal give us Roberts and Alito? If Sen. McCain had supported the nuclear option we would have easily had enough votes to employ it. All the Gang of 14 deal did was ruin the prospects of about ten good Circuit Court nominations and put President Bush in such a box that he was willing to put forward Harriet Miers.

You're engaging in some serious historic revisionism if you think the Gang of 14 was good for us.

In any case I don't trust either McCain or Giuliani, so I'm not going to quibble about which one would be worse. They're both disasters in the making.

On one hand, Santorum got thumped badly by Casey in the '06 Senate race, which makes me wonder whether he can win statewide. We should rarely pick a Veep who can't even be assured of carrying his home state.

On the other hand, if you think Santorum could swing PA our way, that would be a very strong argument for picking him. Just swinging PA our way could break the Democrats' back: PA has the 5th-most electoral votes (21, tied with Illinois) and went for the Dems in every presidential election in the last 16 years (1992, 1996, 2000, 2004).

Based on how the other states are likely to vote, it would be difficult for the Dems to win without Pennsylvania's 21 EVs.

Whacker77, I trust Giuliani more on judicial nominations than McCain, also.

The votes to end the judicial filibuster simply were never there. At best, a successful rules change would have been portrayed as a hyper political move. Just as importantly, Republicans would have lost the right to block future Democrat judges who they viewed as outside the mainstream. The possibilty also existed that Democrats would simply reinstitute the rule when they regained Senate power.

Was the Gang of 14 deal a letdown in my mind? Absolutely. Still, the result was that many of the blocked nominees now sit on COA's and the Supreme Court. Janice Rogers Brown, William Pryor, and Priscilla Owen would still hold their old positions were it not for the deal. More importantly, I think it's very likely that Sam Alito would still be a judge on the Third Circuit. Obviously, other judges were victims, but that's politics.

I think people forget who tied up the Senate was under the leadership of Bill Frist. He was a terrible leader who committed acts of political insanity over and over again. Rather than sutting down the Senate, he called for cloture vote after cloture vote. When no harm came, Democrats weary of the blocking tactics became emboldened and never looked back. Not one Democrat Senator committed to the cloture vote option would have changed his or her position on a Supreme Court nominee. After two years, it was clear that no harm would come.

If you think it's revisionist history to praise the deal, you're right. It's not revisionist history to believe it worked well for Republicans. Just ask David Frum of NRO. He said that very thing the day the deal was announced. Without the deal in place for SCOTUS nominees, I don't believe John Roberts and Sam Alito would now be justices.

On what basis do you trust Guiliani more than McCain on judges? Is it the fact that Guiliani is pro-choice? Is it the fact that Guiliani is pro-gay rights? Is it the fact that Guiliani is pro-gun control. If a zebra can't change its stripes, then Guiliani is a liberal in the mold of Gerald Ford with no devotion to judges in the mold of Scalia. If Guiliani does not hold these views today, then he's someone who has at one time changed his views to meet the needs of the office for which he has run. Is this a profile in political courage?

It's easy to say that Ronald Reagan changed his views, but in fact his views never changed while the Democrat party's did. To simply mention Scalia, Roberts, and Alito is worthless when Rudy's past is viewed. Catch phrases and code words are not enough to overcome at least 20 years of strongly held views. None of this is to say that McCain is perfect, but to view Guiliani more favorably seems to me to be a reflection of anti-McCain feelings. Don't forget that on September 10, 2001, Guiliani was not viewed well by New Yorkers.

Both of them look very promising. Hopefully a 10th Circuit slot from Colorado will open up that we can get Eid into so she can be in the que for SCOTUS. Same with Todd for either the 4th Circuit or DC Circuit.

With McConnell, Gorsuch, and possibly Eid one day, the 10th Circuit could soon be more heavy on Supreme Court material than even the DC Circuit. The 5th Circuit's bevy of potential Supreme Court material looks like the sun is about to set on them as they are getting older. Same with Karen Henderson of the DC Circuit. She'll be 64 in 2008. A bit old for a new Supreme Court justice for my taste. I think that 60 should be our cutoff.

Would love to see Diane Sykes or Miguel Estrada ascend to Stevens' seat.

I trust Giuliani more than McCain because there is a difference between a political conservative and a judicial conservative. Giuliani is not a political conservative, but I do believe he is a judicial conservative.

John McCain, while not a liberal, is neither. In fact, in 1999 I understand that he said that he thought Roe v. Wade should be upheld. That's different than thinking abortion should be legal - it's FAR WORSE. I think that Giuliani thinks abortion should be legal, but that it should be decided by the political branches instead of by the judicial branch, and that Roe should be struck down.

I think that John McCain's problem is that he doesn't understand what a strict constructionist is. Giuliani does.

The votes to nuke were there. The no votes were McCain, Chaffee, Collins, Snowe, and Warner. Spector was the only other maybe and the decision was pending on his vote. If Sen. McCain were a good Republican instead preening for Chris Matthews, we would have had the 50 votes with or without Arlen.

You misread the reaction. The Democrats wouldn't have won a whine-fest. The country has never backed Democrats on judges, and a rules change to keep them from obstructing would only have enhanced Republican standing.

And we would have gotten Owen, Brown, Pryor on the bench along with all the others that were defeated by Democrats behind closed doors. Saying their defeat is "politics" is true, but it didn't have to be that way. Now it looks like we're facing the prospect of losing several Circuit Courts to the liberals because of it.

Thanks to McCain.

As for Republicans filibustering Democrat nominees. Don't make me laugh. They'll happily confirm another Ginsberg the first chance they get.

I think that you forget when the VP is selected - it's AFTER the primary. So while Pawlenty is in the McCain camp now, in the primary, if Romney reached out to Pawlenty to be his VP after winning the Republican nomination, it could go a long way towards mending fences with the McCain camp.

And yes, I know that veeps don't generally make a huge difference because people vote for the top of the ticket, but in a national race against Hillary, I think that if Rudy were the nominee, he would be brilliant to launch a campaign aimed at social conservatives basically saying, "if you can't bring yourself to vote for a pro-choice Republican for president, at least vote for a pro-choice Republican for vice president - Vote Giuliani/Gingrich in 2008." I think that it would work well.

With Ginsburg, Scalia, Kennedy, Stevens likely to go under the next president--I would much prefer Rudy, McCain, Romney or any of the others over Hillary, Edwards or Obama. We should strongly remember that once the nominee is chosen: I fear the strong divergence of opinion on this site might not bode well if someone doesn't get their chosen candidate.

Pawlenty isn't THAT impressive a veep candidate to begin with. If Sen. Coleman hadn't started against the "surge" I would have preferred him.

If you want another name to consider, how about Sen. Kyle. Conservative, bright, still young enough to run in 2016, and rather likeable to boot. He comes from the other swinging region of the country (the southwest is trending blue) and would help the ticket.

The only downside is that his governor is a Democrat. He would need to step down and place his freshly re-elected seat up for grabs in 2008 or wait until he's elected and hand it to the Democrats until 2010 (at which point Gov. Napolitano would easily win it).

When is a judicial conservative not a political conservative? When is a political conservative not a judicial conservative? There is nothing in the record that suggests Guiliani is either. A few comments made to Sean Hannity don't mean much to me.

I can't believe you even just said that! You just basically said that you don't believe in the principle of strict constructionism at all!! You're saying that all judges must rule based upon their personal political feelings on the issue.

A judicial conservative is not a political conservative when he thinks that abortion is okay but it's not protected by the constitution. Likewise, a political conservative is not a judicial conservative when he think that the constitution outlaws abortion.

Supposedly Giuliani appointed municipal judges and did a good job of that. He's not a political conservative on social issues, and he's never claimed to be. He does claim to be a judicial conservative, though, who believes that the law should be strictly upheld as it is written.

The view of an originalist and strict constructionist is that NO MATTER WHAT MY PERSONAL OPINIONS ARE, the law is the law is the law is the law. And while there can certainly be some variations on how the law is read, if 9 people are coming together to honestly try to faithfully apply the law AS IT IS WRITTEN, then the correct view should be able to garner a majority.

If a state passes a law legalizing abortion, then the Supreme Court should uphold it. And if a state passes a law prohibiting abortion, the Supreme Court should uphold it. That's because the constitution is equally silent on both laws.

For instance, in Lawrence v. Texas, I agree with the dissent(s) by Scalia, Thomas, and Rehnquist and completely reject Kennedy's majority opinion. But at the same time, I did actually find Sandra Day O'Connor's concurrance (in the judgment alone) where she likewise completely rejected Kennedy's rationale, but made a compelling constitutional case of her own. The differences between Scalia's and O'Connor's opinions in Lawrence are honest differences. Differences like those between Kennedy's and Scalia's or O'Connor's opinions are the difference between judicial activism and judicial fidelity to the law. And in fact, if O'Connor's opinion had been the majority opinion, I'd probably even go so far as to say, "well, that's not the position I would have taken, but there is support for it and so it should be respected on gounds of precedence."

McCain would apoint Justices who would hold up McCain-Feingold. McCain's campaign finance law will probably (I'm praying) be struck down by the Court this term, but he'd appoint those kind of Justices nonetheless. McCain is not a viable option for conservatives; not that I've heard many supporters of his on this site. I think, however, Rudy and Mitt will appoint the same kind of justices as McCain. Tragically, conservative warriors, especially of the judicial variety, do NOT have a viable candidate in the race.

I still believe that a Republican president has great power in appointing a moderate if he wants to. The only reasn Miers was brought down was because she real;ized that she was completely unprepared to go in front of the SJC. Had Bush nominated a moderate or liberal Republican with much better creditials than Miers, that nominee would not have been stopped by the activist right. It's still all up to the president regarding whether or not the candidate gets through. We got lucky getting Alito, but that scenario won't happen again if such circumstances arise again.

I think that Romney's and Giuliani's nominees would be about the same, although Romney's may be slightly better. McCain's would be by far the worst, I fear.

"I can't believe you even just said that! You just basically said that you don't believe in the principle of strict constructionism at all!! You're saying that all judges must rule based upon their personal political feelings on the issue."

I said nothing of the sort. The point I wanted to make is this. I find it very doubtful that a social liberal would be a judicial conservative. If that's the case, I see no reason to believe the social liberal would be inclined to nominate a judicial conservative. Maybe Rudy's the exception, but I find it hard to believe a zebra can change its stripes.

With respect, "rightwingextremist" sounds like a bit of a troll. McCain has been solid on judges, but I concede one can't be certain how campaign finance would influence his choices. How do you surmise that Guiliani and Romney would appoint similar justices? Everything seems to indicate they'd appoint solid conservatives, especially Romney.

certainly did change his view on abortion. Other than that, it seems fair to say that the Democrats simply moved farther and farther left and Reagan stayed roughly where he was.

tbaugh

I don't think some of Scalia's judicially conservative opinions would be viewed as politically conservative (e.g. flagburning--he's said himself that if it was up to him it wouldn't occur, but under the constitution its not up to him). And his confrontation-clause opinions, the recent "structural error" on erroneous failure to allow retained counsel of choice (to which other conservatives consented), are I think judicially conservative but not politically conservative. I don't think the two can be used interchangeably.

tbaugh

Sorry--"other conservatives dissented" not "consented"