Part I of Confirm Them's three-part Q&A session with Jan Crawford Greenburg
By Alexham Posted in SCOTUS — Comments (22) / Email this page » / Leave a comment »
As previously noted, Jan Crawford Greenburg, author of the highly acclaimed "Supreme Conflict," agreed to field questions about the book from Confirm Them's brilliant readers. The first installment of this Q&A session is below the fold, and was well worth the wait IMHO.
1. Given the current political climate, who do you think President Bush will nominate to the Court if a third SCOTUS retirement occurs during his presidency?
Answer: Janice Rogers Brown or Maureen Mahoney. Now I know you’re asking how in the world I could possibly mention those two very different contenders in one breath, right? Ok, here’s why: It all depends on which justice leaves and when. President Bush will tap a solid judicial conservative (i.e., Brown) if he gets a nomination this year. He wants to change the subject, and this is about the only issue he’s got left to rally the base. (If you guys can think of another issue that will keep conservatives together with Bush, let me know.) Judge Brown would be an exciting nominee: She’s getting very high marks from colleagues on the D.C. Circuit, and her experience, compelling life story and demeanor (she’s fast on her feet and would be a terrific witness) would present those moderate southern Democrats (there are still a few of them) with a very difficult choice.
Granted, it would be a huge fight, especially if she’d be replacing Justices Stevens or Ginsburg. But she just might get through. Remember that Clarence Thomas was confirmed to replace Thurgood Marshall in 1991 by a Democratic-controlled Senate, with 11 Democrats and 41 Republicans voting for him. In fact, it was the Democrats’ failure to defeat Thomas’s Supreme Court nomination that prompted the first-ever filibuster of appeals court nominees, beginning back in 2003. The outside interest groups believed they’d blundered in not blocking Thomas’s nomination to the D.C. Circuit in 1990, and they vowed not to repeat that mistake. This time around, instead of waiting for the heightened public spotlight of a Supreme Court confirmation battle, they turned their sights on the appellate court nominees, targeting all of President Bush’s picks who might someday get a high court nod: Estrada, Kuhl, Owen, Brown, to name a few. It worked. When O’Connor retired, those contenders had either bowed out or become so controversial that even Republicans were warning Bush not to select them. But now that some time has passed, Brown and Owen are back in. Estrada, who asked President Bush to withdraw his nomination to the DC Circuit, still would be a top choice, as well. The White House (and Sen. Mitch McConnell) had all but begged him to throw his name in the ring to replace O’Connor, but he declined for personal reasons. Estrada would be at the top of the list again—and could very well get the nomination if another vacancy occurs—but he continues declining to be considered. Same goes for Maura Corrigan, of the Michigan Supreme Court.
If no one goes this year, Bush will be hard pressed to nominate Brown for a vacancy in late 2007 or 2008. If the nominee’s controversial, as Brown would be, Democrats could just delay, delay, delay and hope President Clinton or Obama or Edwards or Gore or (insert name here) would fill the seat. That’s one reason Anthony Kennedy ended up on the Court. After Bork went down and Doug Ginsburg flamed out, the 1988 presidential elections were creeping up on the Reagan White House. His advisers knew they had to get someone confirmed quickly, or they’d blow it altogether. Enter Justice Anthony Kennedy, who had support on both sides and didn’t offend anyone.
The closer we get to 2008, the better are Maureen Mahoney’s odds, because she’s a conservative who could get confirmed. I hate to segue from Anthony Kennedy to Maureen Mahoney, because the only thing they have in common is a surname ending in “y.” They are nothing alike. Don’t get me wrong here. I’m not comparing Mahoney to Kennedy. It’s the situation, the timing, that I’m talking about. Mahoney is incredibly impressive as a lawyer and advocate; people who call her the “female John Roberts” aren’t too far off the mark. But lawyers in the Bush administration didn’t seriously consider Mahoney for the O’Connor vacancy because they didn’t believe she was conservative enough. She’d argued in support of affirmative action in the Michigan case, and there was a feeling in the White House that she actually believed her argument. Now that Democrats are running the Judiciary Committee (perhaps Mahoney should be thanking George Allen), her work on that case would be a big plus. Mahoney may not be a social conservative (neither is Estrada, for that matter), but let’s not forget that Mahoney IS a judicial conservative. She’s no Anthony Kennedy. She would be the kind of justice—smart, disciplined, skilled-- I’d suspect John Roberts would appreciate having on the Court for the next 20 or 30 years. And she could get confirmed in late 2007/early 2008.
I went through the other contenders in the book, including why some knocked themselves out for good. But there are other possibilities: Diane Sykes of the 7th Circuit is one. Priscilla Owen of the 5th is another, though I’d put my money on JRB if President Bush wanted to go strong this year. And one of my sources insists that Edith Brown Clement of the 5th could make a comeback, but I have a hard time believing that. She’d be incredibly disappointing to the base, and she also didn’t impress folks in the White House.
2. How would you assess the impact (if any) of Confirm Them and Bench Memos with regard to the circuit court controversy leading up to the Gang of 14 Deal, and with regard to the three ensuing Supreme Court nominations?
Answer: Both blogs were quite influential in leading the debate over appellate court nominees, a battle that doesn’t always captivate the MSM or the public. The continual coverage and discussion helped keep the issue at the forefront of the debate, which also spurred other media coverage. But the most perplexing thing is how terribly the White House misjudged how the blogs would react to the Miers nomination. As I reported in the book, Harriet Miers herself recognized what a key role blogs would play in a Supreme Court fight. (When Miers said the blogs would be important, Confirm Them and Bench Memos were two of the key ones she had in mind.) And of course those blogs—and other conservative legal blogs like Patterico—didn’t exactly embrace her nomination. Bush’s advisers insist that he didn’t throw in the towel on Miers because of the conservative opposition. They’re adamant that he believed the conservatives ultimately would have rallied to her defense, once Democrats starting firing at her. That’s what happened in the Souter nomination almost immediately. Within days, liberal groups came out against him, and conservatives rallied to defend him.
Democrats ultimately would have opposed Miers in her Senate Judiciary Committee hearing. In that hearing, Miers would have been a proxy for Bush. The worse she looked, the worse Bush would look. The more she seemed like a crony and a hack, the more Bush would look like an incompetent. Her confirmation hearing would have been brutal. Democrats would have eviscerated her. And Bush knew that. But the opposition to her was so entrenched, I’m not so sure conservatives would have come around, as Bush believed.
I also think it’s a mistake underestimate how the conservative opposition to Miers affected the course of events—even if Bush insists that’s not why he concluded she needed to pack it in. By laying bare her lack of qualifications and detailing how Bush had gotten it so wrong, the blogs helped marshal conservative outrage, which was evident among staffers and senators on the Hill. There was no enthusiasm anywhere for Miers, so when she did poorly in her preparation sessions, she had nowhere to turn for support.
3. Did the people you wrote about in your book ever watch these blogs, and were these blogs regarded by them as fair/mindless/useful/bothersome/stupid/intelligent/influential/ineffectual/charming/rude?
Answer: Yes, everyone who cared about nominations was watching the blogs. Keep in mind that people were desperate for information, whether they were in the mix or watching from outside. This White House, after all, was unbelievably good at suppressing leaks of any kind—unlike, say, the Clinton White House, which pretty openly discussed which nominees it was considering. So with information at a premium, Confirm Them was seen as having some good inside info and enlightening discussions about the various possibilities. Of the adjectives, I never heard anyone use “mindless,” “bothersome,” “stupid” or “ineffectual.” But let’s see, “Rude” or “charming?” I guess that depends on who you asked at the time and whether they were moving up the list or not!
4. You mentioned that, at the official ceremony after C.J. Rehnquist died, Kennedy couldn't get back in time from China, and Souter was in New Hampshire; did Souter hate Rehnquist?
Answer: I don’t know. I didn’t ask him that, and I haven’t heard it suggested. Rehnquist was generally well-liked, though he did frustrate some of the justices from time to time because he kept such a tight rein on things. Breyer, especially, thought Rehnquist was too terse in conferences and could be too distant from the others outside the conference room. That style didn’t seem to trouble Souter as much. I will say that Souter’s absence from Rehnquist’s memorial service struck some inside the Court as inappropriate, but no one knew quite what to make of it. They couldn’t decide whether it just reflected Souter’s eccentricities or whether he was making some kind of statement about Rehnquist. I’d guess the former, since he did make it for the funeral.
Thanks
by Matthew Friendly
Thanks Ms. Greenburg. Very insightful, just like the book.
I pray Bush gets another Supreme Court nomination. Janice Rogers Brown would be stupendous. Your confidence in Maureen Mahoney as a judicial conservative makes me feel better about her as a nominee.
It's unfortunate how the Democrats' strategy of filibustering appellate court nominees was successful on two levels: at the circuit court level and Supreme Court level, as it negated the chances of Estrada, Kuhl, Owen, and JRB being nominated to replace O'Connor or Rehnquist, which they certainly would have been if they had been circuit judges with a few years under their belts at the time of the vacancies in 2005. I'm especially saddened that it destroyed the chances of having a Justice Kuhl, who might have been the most likely nominee to the Supreme Court and might have proven to be the best Justice of them all.
Nevertheless, I'll be more than happy with a Justice Brown and/or a Justice Estrada. Based on your assessment, I'll even take a Justice Mahoney.
thanks Alexham and Jan!
by Dienekes
lots of juicy info in that 1st answer especially. I find it hard to believe that the WH would waste 3+ months by nominating Brown, who I think has a less than 0% chance of confirmation. Nice to hear Corrigan is a favorite of the WH too, even if she's declining. I keep coming back to Clement as the logical choice (so I'm pleased to hear her sources validating that somewhat), if whatever caused her to be labeled as "self-promoting" doesn't tar her permanently with the administration. I think the base has warmed to her considerably (at least here), and that especially as a 3rd pick there would be little opposition. the Mahoney part of the answer was a bit more reassuring than the last comment I heard Greenburg make about her, so that's good too as far as it goes, if she comes down as the nominee of last resort. also interesting note on Estrada's lack of social conservatism.
I'm a bit surprised to hear that people pay attention to us, haha! *waves to the cameras* :)
BoBo
by Matthew Friendly
BoBo, I think it means that politically Estrada does not necessary subscribe to social conservatism, but as a believer in originalism and judicial restraint, Estrada is a judicial conservative. Certainly, this is probably fairly common: it's highly unlikely that most originalists are politically and personally conservative. Lawyers just tend not to be.
If a 2008 Vacancy...
by EzOnTheEyez
...I say forget Maureen Mahoney (she seemed like she definitely believed her affirmative action argument a little to much to make me comfortable,) and nominate Colorado Supreme Court Justice Allison Eid, instead.
Then, hopefully Miguel Estrada will be willing to accept the next nomination. :-)
Ez
by Dienekes
if aff. act. was Mahoney's only problem, I'd nominate her in a heartbeat (since, assuming Roberts and Alito, we already have 5 there). I'm less than convinced that that is the case however, so I prefer the WH look elsewhere (though as I said, JCG's info here dampens the rising concern I had about her somewhat)
and sadly there's no way the Dems will allow a conservative 40ish FedSoc Thomas clerk.
Worth the wait, indeed!
by maccc
Thanks Jan and Alexham! Jan has given a number of very fine and interesting interviews for the book, but I think this one may be the best. Again, thanks Jan for taking the time and providing her expertise.
Her discussion of what happens next if there is another vacancy seems very sound. Though I find it hard to believe that JRB would be the nominee when Bush could just go for Sykes. Maybe Bush wants another "first" (first black female Justice) since first Hispanic Justice will almost certainly evade him. And I guess so long is the vacancy is in '07, there is time to send up Mahoney should JRB go no where.
Her comments on Mahoney are reassuring as well.
Rosen was with her on Booknotes recently. He doesn't know his history as well as he thinks he does. He says if there was another vacancy, the Dems would just stall until the next presidency, even if the nominee was a moderate conservative, because that was tradition. If a retirement came this June, it would be analogous to the vacancies of Marshall, Powell, Douglas, Harlan II, and Black. Rosen's assertion is stunningly misinformed. Rosen is certainly not a leftist, but instead more of a moderate liberal. However, he seems to aggressively push his "moderate liberal" positions at all times.
BoBo, a judicial conservative would find Roe illegitimate but as a private citizen may vote in a state referendum for the allowance of abortion. A social conservative would be against both Roe and any democratically enacted law that allowed abortion liberally. Unfortunately, in recent decades Roe and the issue of abortion as a policy matter have been improperly conflated. This is in no small part to the media asserting Roe "legalized abortion." I suppose, but the proper description would be Roe made abortion a constitutional right.
They Couldn't Stop Eid
by EzOnTheEyez
I just see no way that the Democrats could stop Allison Eid. She's far too credentialed, far too intelligent, far too likeable, and as a former Solicitor General who has spent her life seemingly immersed in constitutional law, I have to believe that she'd be far too excellent a witness for Democrats to deny a seat. Their argument would be the equivalent of a temper tantrum - and they would suffer mightily in American public opinion.
The justice she clerked for, Thomas, was confirmed by a Democrat-controlled Senate. Plus, one of the senators from her state, Colorado, is a Democrat member of the Gang of 14. I think he'd be hard pressed to vote against the nomination of Eid to the Supreme Court.
As a plus for our side, there has to be a reason that Thomas clerks are so reviled by liberal law faculty, in general. There are reports over on Volohk Conspiracy of law school appointment committees (UGA was named) who have members who simply will not allow Thomas clerks onto the faculty, under any circumstances.
I'm all for JRB
by BoBo
If there is an opening in 2007, I'm all for nominating JRB - even if she doesn't appear to be confirmable at first glance. The worst thing that could happen is that she is voted down in the full Senate after a good debate about conservative jurisprudence. Afterwards, Mahoney will be the next nominee. Why not nominate JRB first and take the chance no matter how small that she gets confirmed? Then we might get a more solid conservative than Mahoney on the court.
I'm Okay With Leading With JRB
by EzOnTheEyez
I'm fine with leading with Janice Rogers Brown if the vacancy is this summer. But follower her up with either Eid (my current preference) or Sykes if she is voted down.
Great Interview
by NCC
I read the many excerpts, then the book, and most if not all of the author's interviews. But these questions are both insightful and fresh, and the answers equally so.
Thank you.
Adding my thanks!
by cubsfan
I've read her book and most of her interviews and her Q&A at ScotusBlog, but Jan's responses here are so fresh with new insight that they read like a new chapter of her book. Thank you Jan.
As to future SCOTUS nominees, here's a chilling statement from a new Northwestern Law Review article about ideological 'drift.'(h/t: How Appealing):
"Contrary to the received wisdom, virtually all justices serving since 1937 have grown more liberal or conservative during their tenure on the Court."
http://www.people.fas.harvard.edu/~kquinn/papers/PrefChangeNWU.pdf
On Jan's book.
by hoosierteacher
I just finished reading (and rereading) Jan's book, which I received for my birthday recently. If you haven't read it, you MUST!
1. The book is a treasure trove of inside info, including the correction of several things that many of us assumed to be fact.
2. The book doesn't have a political slant. The best I could find (and I looked high and low) was refering to partial birth abortion as "so called partial birth abortion". The book should be a text for students based on the fairness it gives to reporting without opinion.
3. The book is just plain well written. Simple enough for the layman, compelling enough for legal experts (in my opinion). I can't wait for her next work. Best non-fiction I've read in a long while.
4. Inside the back cover is a picture of Jan. Don't get me wrong, I love my wife. But that Jan sure is a cutie!
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe
Eid
by Matthew Friendly
I would love to see Eid nominated, though i think the White House has others in mind at this point.
Jan's book was great, though depressing. We should/could have had Silberman or Winter instead of Kennedy! And we should/could have had Starr or Jones instead of Souter! AHHHH!!!!
hoosiert
by Classic
The relevance of your concluding quotation is?
Eid is wonderful, no
by BillM
Eid is wonderful, no question. But she's 41, Mahoney is 50ish, JRB is 58. Absolutely no way in the world she'd get thru.
And Salazar is the one who killed her shot at a COA seat, leaving her marooned on the Colorado SC.
Eid SHOULD, however, replace JRB on the DCC... ;)
And if a Dem wins in '08 McConnell needs to delay every woman & minority to the left of Mahoney/Callahan/Ikuta. Just a preposterous unwillingness to fight at all, going back decades.
And when in tarnation is Paul Clement getting nominated to the 4th????? Get with it, WH. Criminey.
Classic
by BillM
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe
Would you rather have Strom Thurmond & Reagan leading Specter & Warner, or Frist & Ford 'leading' Cornyn & Kyl?
Eid
by maccc
Eid is an impressive up-and-coming legal mind, and conservatives should keep an eye on her (DC Circuit or 10th Circuit), but she should not be considered for a vacancy as of now. She has a good deal of potential, but by no objective standard does she come out near the top to be chosen for SCOTUS right now. However, in a decade or less she may well be one of the best SCOTUS prospects by any objective standard.
cubsfan
by Dienekes
interesting link (though I think very much flawed, as any description of the political number line as drawn by liberals is, in what they call the midpoint or moderate). one point that may bear consideration though is that drift is not much in evidence on average in the 1st decade. if so, nominating a 60 year old (maybe even a few years older) may make a good deal of sense at times, as they'll have less time to drift, and their age will in all likelihood make for an easier confirmation battle.
Bill, I think Clement is someone the WH may be able to get confirmed in the last half of 08 a la Breyer. they probably want to keep him as SG for as long as possible. and then its possible he may not be interested in a judgeship right now. if he is, he will be a key test of reciprocity on the Dems' parts. if they don't want things to escalate further if they ever win back the WH, they will confirm him (if things look hopeless for them as the election looms, that would change things of course). I wouldn't be surprised to see him nominated in June 08, after the SC wraps up OT 07. though June of this year is possible too.
Hey there classic,
by hoosierteacher
The quotation is called a "signature", and appears at the end of comments from those who frequent the RedState site. They are optional and are chosen by the member. The signature I chose appears at the end of each of my comments automaticaly, and I chose it because I find it profound and inspiring. It does not relate to my comment or the subject matter in any way.
Regards, HT
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe
Nominating Brown
by Thomas Alan
Great, President Bush went out of his way to duck a fight in 2005 when he held all the cards but is willing to provoke one when he would most certainly lose.
Unless she's willing to used as a stalking horse, I can't imagine what the point in a Brown nomination would be.
Y'know, I wish I had read Supreme Conflict before the questions were asked, because I'd really like to know if Greenburg really believes Gonzalez and Miers are true conservatives, or if she just got that impression because she interviewed so many people within the echo-chamber of the White House.
What exactly does that mean? How is a judicial conservative not a social conservative?