ConfirmThem

Thanks for getting the ball rolling.

What do you think of re posting a selection of some of the Mukasey writings from the weekend open thread?

Here's a link to the open thread ---Andrew

http://www.scotusblog.com/movabletype/archives/2007/09/paul_clement_to.h...

"The President today announced that Peter Keisler, Assistant Attorney General for the Civil Division, will be Acting Attorney General until the Senate confirms Judge Mukasey. According to the President, this is in order to allow Paul Clement to concentrate on his duties as Solicitor General."

If he doesn't agree in the hearings to any and all demands by the Dems for fishing expeditions, we'll be seeing Schumer saying things like, "I am disappointed that this nominee, whom we thought would be a reasonable concensus pick, is already into cover-up mode to protect the Bush Administration's and disgraced Attoreny General Gonzales's misdeeds. I must say that unless he is more forthcoming about allowing a reasonable independent investigation to expose the crimes we all know were committed, I cannot in good conscience vote to confirm Judge Mukasey."

http://hosted.ap.org/dynamic/stories/B/BUSH_MUKASEY_TEXT?SITE=AP&SECTION...

"Until the judge is confirmed, Assistant Attorney General Paul Keisler will serve as acting attorney general.

Accepting this assignment requires - Peter, I said - Peter - Peter Keisler.

Accepting this assignment requires Peter to delay the departure date he announced earlier this month. And I appreciate his willingness to do so.

Peter's the acting attorney general. Paul Clement, who agreed to take on this role, will remain focused on his duties as solicitor general so he can prepare for the Supreme Court term that begins just two weeks from today."

The Dems know that they were consulted about Mukasey and agreed about his nomination. They are NOT going to ruin his nomination. Look at what happened to Gates. He did not have a rough confirmation and neither will Mukasey.

http://www.tpmmuckraker.com/archives/004201.php

"Bush threw an unexpected change-up in his announcement this morning. Towards the end of his remarks about his nomination of Michael Mukasey as attorney general, he also said that outgoing Justice Department official Peter Keisler would serve as the acting attorney general until Mukasey is confirmed."

"That's a move likely to provoke Democrats, who had been signaling that they'd block Keisler's pending nomination to the D.C. Court of Appeals. Keisler was first nominated in last year and was renominated this year. Only this May, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) warned that Keisler's nomination was "controversial." As a result, Keisler will now be in the odd position as acting attorney general of having to deal with the Democrats who are holding up his still-pending nomination."

"So it would seem that Democrats would be less willing to bide their time with Mukasey's nomination with Keisler there instead of Clement."

Or will it be, "This proves that we are willing to meet the President in the middle. If he would send us up some conservative judicial nominees who were not right-wing idealogues we could move them along quicker. If he continues to try to carry out his Constitutional duty send up unacceptable candidates he'll have to live with the results."

The most important question about the Mukasey AG nomination is whether he would accede to Democrat demands for a Special Prosecutor to conduct politically-motivated fishing expedition investigations into the U.S. Attorney, Gonzo matters, and other pseudo-scandals. Do Democrats like Schumer sense a tacit agreement or willingness to do so?

Another out-of-control Special Prosecutor would be a disaster, and a dagger pointed at the heart of what remains of the Bush Administration.

They want "promises extracted" from him during the hearings. They claim Leahy & Reid "are on board" w/tying his confirmation to agreeing, essentially, to investigate the USAtty "scandal" but it looks to me like they're just fulminating for the choir. Agreed w/BoBo that Muk's already been signed off on.

Nobody wants another Watergate or Bork witchhunt debacle, and the public cares even less about USAtty's than they do CCA judges.

Interesting takes on Keisler & Clement too. What a disaster not forcing Keisler thru last winter has turned out to be.

But hey, Bush sure showed the Dems who was in charge viz. Boyle, Haynes, Meyers & Wallace, right?

http://www.dailykos.com/storyonly/2007/9/17/55726/2671

A hearing has been scheduled for September 25. Nothing on the website, though, about who will be the nominees considered.

Does anyone know when the Senate is scheduled to go out of session this fall?

http://www.senate.gov/pagelayout/legislative/two_column_table/2007_Sched...

There is a break in October from the 5th to the 15th. Then adjournment is set for November 16th. December should be a good time for Bush to recess appoint Keisler.

.

Slate is terrified of Mukasey:

http://www.slate.com/id/2174048/nav/tap3/

The president doesn't get any benes from the Dims for making "their pick." As a matter of fact, I heard today that the Dims are thinking about postponing the hearings until they receive satisfaction on the fired attorneys.

Maybe the Keisler curve ball will help bring the Dims back in line, but forget about any further deals.

This is fine with me. It keeps Keisler in the spotlight longer as the Acting AG and adds luster to his resume. If he does a really good job, it will again make the Dems look stupid for not confirming him to the D.C. Circuit.

How about behind the scenes we have McConnell and Cornyn and company tellin their counterparts that Bush is perfectly happy to have Keisler - who oh yeah nudge nudge is pi**ed off at all you Dems - in place until X number of COA nominees are confirmed. Maybe WE should be delaying his hearing.

Agreed 100% that, A: Mukasey needs to be asked if he considers illegal immigration to be a crime; and B: LOL at the Dems for wanting "guarantees" about a special prosecutor. "OK, you DON'T want Mukasey now; fine, Keisler's Acting AG, and he'll be recessed over the Thanksgiving break". Prolly kill any chance Keisler ever has for higher office, but it would be worth it in this case, IMO.

The ol' carrot n' stick; maybe someone at the WH is stratergizing after all!

I agree with all three of youse guys!

The Mukasey nomination would appear to be a brilliant tactcal move by the Administration (though admittedly in the Making a Silk purse out of a sow's ear category). The ONLY reason for keeping Gonzo as AG was to prevent a Democrat show trial in the SJC during confirmation hearings for the successor.

Mukasey appears so respected and accomplished that the Dems will be extremely hard-pressed to hold his confirmation hostage to "U.S. Attorney firing pseudo-scandal" concessions or a ridiculous Special Prosecutor, as proposed by Schumer et all a few months ago. Trying it would probably blow up in their face.

Keisler should definitely not be professionally compromised over a 15 month AG appointment. Yes, we all know he should have been confirmed last year (one of so many fiascos). But I'm bored with going over that sordid story for the umpteenth time. If you're interested, I refer you to the archives from a year or so ago, where you can read numerous posts by BoBo, myself and several others making these same points.

It didn't stop them from trying to paint the respected and accomplished General Petaeus as an incompetent liar.

http://www.acsblog.org/separation-of-powers-peter-keisler-the-new-acting...

http://www.dailykos.com/story/2007/9/17/1561/38310

Love this comment:

"This was the real appointment. BushCo doesn't really expect their 'official' nomination to fly because Senate Dems will use it to demand info the WH doesn't want to give up. My guess is that they will withdraw Mukasey's nomination if Leahy demands GonzoGate documents in return for moving the nomination. This would leave Keiser, their real nominee, in charge at Justice. All Bush has done is replace one political hack with another one whose primary job will be protecting Bush's behind."

http://www.watchblog.com/democrats/archives/005487.html

"Leahy wants to receive from the White House information about the recent firings of Justice Department attorneys. No information, no hearings on Mukasey.

So what does Bush do? He finds a guy that is more controversial (Peter Keisler) than the one he recently chose as acting Attorney General (Paul Clement). Keisler is the guy who represented the government - Bush, really - in the Guantanamo "enemy combatant" case.

Since Keisler is still a member of the Justice Department, he can be appointed the acting attorney general. If the Democrats don't confirm Mukasey, something that appears very likely because Bush will not acquiesce to supplying information to Leahy, then Bush can use Keisler to thumb his nose against the senate.

I say, Leahy must act tough. If he does not get the information he seeks from the administration within a week or two, he must follow through on his contempt of Congress citations. Sure it will cause a crisis. But a crisis is unavoidable. The integrity of our constitution is at stake.

Up to now most of Bush's appointments have been disappointments. For a brief moment, it appeared that Bush was being reasonable. No such luck."

It looks like the kossacks are backing off of Patreaus a bit, and now going to the "military's under command of civilians so Patreaus has to say what Bush tells him to or lose his pension" card. That's a bit of an exaggeration on my part but close enough.

Wise move; the public loves generals ever since Stormin' Norman (and prolly since Ollie North (not a Gen. I know)). Amazing how Colin Powell has destroyed his credibility when he once could've waltzed to the POTUSy, but he managed to do so.

too funny.

Plus, Petraues had the Dims for lunch by being gracious and professional. The uniform didn't hurt, ala Ollie....

to see what would have happened if Powell had taken out Clinton in 1996, which he easily would have done.

Who knows what things would be different now?

http://www.nytimes.com/2007/09/18/washington/18attorney.html?ex=13477680...

"The selection of Mr. Mukasey — a Washington outsider who met Mr. Bush for the first time during an hour-long interview at the White House on Sept. 1 — seemed to signal that the administration is looking to move past the partisanship that characterized Mr. Gonzales’s tenure.

But two Democrats who will have a powerful say over whether Mr. Mukasey gets confirmed — Senators Patrick J. Leahy of Vermont and Charles E. Schumer of New York — vowed on Monday to use the nomination to extract information from a reluctant White House.

“All I want is the material we need to ask some questions about the former attorney general’s conduct, on torture and warrantless wiretapping, so we can legitimately ask, ‘Here’s what was done in the past, what will you do?”’ Mr. Leahy, the Judiciary Committee chairman, said."

I think this is wonderful. The Dems can obstruct and obstruct, and Peter Keisler gets to stay as Acting AG. In all honesty, though, I don't think the Dems will obstruct for too long. I'm sure they don't want Keisler in charge for too long.

http://www.washingtonpost.com/wp-dyn/content/article/2007/09/17/AR200709...

"Over the three-week period from Gonzales's resignation to Mukasey's nomination, the White House engaged in an unprecedented level of consultation with key Democrats such as Schumer, Democrats said.

"At least some in the White House had a different attitude," Schumer said. He said he spoke with Fielding at least four times about the pending nomination.

Schumer said he suggested four people to Fielding: Mukasey, Thompson, former senator John Danforth (R-Mo.) and Securities and Exchange Commission Chairman Christopher Cox."

At least that list is a little bit better than the garbage he suggested during the SCOTUS vacancies. If there happens to be a vacancy on SCOTUS in the next few months, ie death, Bush should nominate someone from the Schumer list, ie Cox.

A few months as AG might give him some visibility in the public eye, which could benefit his nomination to the DC circuit.

I am going to predict that the hearing will be for Hall, Honaker, and Dugas - all DJ nominees. There is a slight chance that if Lugar kisses enough butt, Tinder may replace one of the above three.

A Powell-Danforth/Lugar ticket would've gotten at least 350 electoral votes in both '96 & '00. However, Mrs. Powell was violently opposed to him running, to put it mildly, and the strong legend has always been that Poppy asked him to stand aside as well for a presumed W or Jeb run.

But now, Powell probably couldn't beat McCain, Brownback, Edwards or Biden. He had two choices: Resign immediately when it became clear W/Cheney/Rummy were going into Iraq without knowing what they were doing, or keep his mouth shut after leaving following the '04 election.

He did the exact opposite of both things, and now he's done, and not just politically.

Martin Jenkins. He presided in the CA Global Warming Case that was thrown out just this week. Here is an excert from his ruling:

"However, when read in conjunction with the prevalence of international and national debate, and the resulting policy actions and inactions, the Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government. A judicial determination of monetary damages for Plaintiff’s global warming nuisance tort would improperly place this Court into precisely the geopolitical debate more properly assigned to the coordinate branches and would potentially undermine the political branches’ strategic choices by “weaken[ing] US efforts to persuade key developing countries to reduce the [greenhouse gas] intensity of their economies.

Plaintiff has failed to provide the Court with sufficient explanation or legal support as to how this Court could impose damages against the Defendant automakers without unreasonably encroaching into the global warming issues currently under consideration by the political branches. Because a comprehensive global warming solution must be achieved by a broad array of domestic and international measures that are yet undefined, it would be premature and inappropriate for this Court to wade into this type of policy-making determination before the elected branches have done so."

Sounds like the kind of judicial restraint that I like. To help matters out, he is black and was appointed to the DJ by Clinton. I know some of you cant deal with any praise by Dems as seen by all this AG talk. However Jenkins also worked in the Reagan Justice Department. One last fun fact about him, he played in the NFL.

http://www.law.com/regionals/ca/onthebench/jenkins_martin.shtml

If the Dems block hearings on MM, Keisler may get recess appointed. Moreover, if Keisler lasts for more than a year as AG, he becomes a reasonable Supreme Court nominee for the next GOP president.

But its a good nomination to make in early 2008....Clinton nominated Rawlinson in Feb. 2000 and he was confirmed that year.

Johnnie Rawlinson is a female.

Well, never would have guessed from the name.

There's an excellent post by Tommy Goldstein over at his SCOTUS blog about how a likely string of liberal victories in the upcoming Supreme Court Term has the potential to energize and mobilize conservative voters going into the 2008 election. Here's the bottom line:

"The impression of the Court's ideology left by the coincidence of the granted [and likely to be granted] cases at the end of the Term is thus going to be at least mixed and potentially profoundly liberal - a far, far cry from the 2006 Term. Of the five cases discussed in this post, the three that will draw the greatest public interest - the detainees cases, the gun case, and the child rape case - are likely to be decided late in the Term, perhaps all in June. This will be a time - in the run-up to the party conventions - at which the public's attention is starting to focus even more directly on the election.

"There is in fact the genuine prospect that the Court will hold (potentially by a five-to-four vote each time) that the government may ban the possession of pistols (possibly guns altogether, if there is no individual Second Amendment right), that child rapists cannot be executed, that certain federal legislation regulating child pornography is unconstitutional, that the Administration's treatment of alleged terrorists is unlawful, and that sentences for crack cocaine should be reduced. In that entirely realistic scenario, it is conservatives who will be aggressively using the Court as a rallying cry - in particular, the cry of the urgent need to move the Court a single seat to the right with the likely retirement of Justice Stevens - in the 2008 election."

http://www.scotusblog.com/movabletype/archives/2007/09/a_true_rightwar.h...

you really think Kennedy will come down on the liberal side all 3 times? 2 times? 1 time?

No, I don't think we'll lose them all, although Kennedy certainly hasn't failed to disappoint in the past. I think Kennedy very likely sides with the liberals on the detainees case for the reasons Goldstein mentions: his past votes in this area and the Court's unusual decision to grant rehearing.

As for the child-rape death-penalty case, Kennedy has been a leader in recent cases inventing new categorical rules against the imposition of the death penalty for various classes of offenders (mentally retarded, juveniles), relying on factors like the small number of states and foreign countries that impose such penalties. Those factors are present here (although the trend is in the other direction). But I can also see him going the other way on this one because the crime is so heinous -- arguably more heinous than murder -- and we know Kennedy is susceptible to following his emotions on an issue. We also know he voted with the conservatives on civil confinement of sex offenders. I can see this being a case where good lawyering moves him to the right side. (Then again, I wrongly predicted that the conservatives would hold Kennedy in Roper, the juvenile death penalty case, based on the strength of Alabama's powerful amicus brief.)

The Second Amendment case is a hard call. I don't think we have any good evidence one way or the other. One would like to think that a civil libertarian like Kennedy would hesitate before completely reading an Amendment out of the Constitution based on discredited linguistic and historical analysis. (One would like the think that the liberals would hestiate, too, but I doubt that.) Of these three cases, I think this one presents the best chance of holding Kennedy's vote.

Many thanks, Agrippa!

Linked at Real Clear Politics--

Delivery Mukasey might be good for America, too
James P. Pinkerton
September 18, 2007
Article tools
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Digg Del.icio.us Facebook Furl Google Newsvine Reddit Spurl Yahoo Print Single page view Reprints Reader feedback Text size: Let's hope that the nomination of Michael Mukasey to be the next attorney general proves to be good news for the country - but it's already good news for Rudy Giuliani.

Indeed, the Republican ex-mayor turned presidential candidate has had a great week. More on Rudy in a moment - but first, Mukasey.

In a time of continuing terror, as well as a crime rate that is once again rising, the American people naturally hope that the Department of Justice will provide stern and competent enforcement. That was not the case, of course, with ex-Attorney General Alberto Gonzales. He and his crew loved to talk tough, but they talked so loudly - publishing articles, for example, in praise of torture - that they generated a worldwide backlash.

By contrast, Mukasey, having been an effective lawyer, prosecutor and judge for 40 years without ever drawing much publicity, would seem to know that law is the art of the possible. And although Mukasey clearly leans to the right on "law and order" issues, he seems to have gained clearance, in advance, from New York's senior senator, Democrat Chuck Schumer.

Lloyd Green, a former Justice Department official in the administration of George H.W. Bush who is now in practice in New York City, describes Mukasey as "a stellar selection: He combines both a judge's temperament with a prosecutor's steeliness ... tough on crime, tough on terrorism, fully understanding how criminal and terror networks operate." If all that proves true, Mukasey could pack greatness into what's likely to be a brief tenure at DOJ.

No doubt various left-wing groups will rise to oppose Mukasey's nomination in the Senate, but of course, the White House will welcome such opposition. Catcalls from the fringe strengthen the administration's credentials with the vital center.

Indeed, MoveOn.org's slashing attack last Monday on Gen. David Petraeus, U.S. commander in Iraq, gave the Bush administration its best week since the 2004 re-election. MoveOn's snarky "Betray Us" newspaper advertisement revealed the group's tin ear for the sacred politics of wartime.

In the minds of patriotic Americans - including many critics of the war - there is a sacrament of sacrifice going on in Iraq today, as our armed forces fight and die, far from home. Yet, MoveOn went rampaging, metaphorically, through our national civic church, spraying graffiti and hurling firecrackers. Of course Americans were outraged.

And so back to Giuliani. Last week his campaign grabbed the opportunity to link top Democrats, especially New York's junior senator, Hillary Rodham Clinton, to MoveOn's civil sacrilege. On Capitol Hill, Clinton said that fully believing Petraeus and his war testimony required a "willing suspension of disbelief." It was an artful attempt to have it both ways. After all, Clinton voted for the Iraq war in 2002, but now she must oppose it sufficiently to win the dovish Democratic presidential nomination, while still not be being so strongly opposed that she ends up McGovernized and marginalized in the general election.

Yes, it was an artful attempt - but Giuliani called her on it. The former New York City mayor ran his own newspaper advertisement, attacking Clinton for attacking Petraeus. In so doing, Giuliani elevated his own status among Republicans, reminding the party faithful that he will fight for them where it matters most - against the dreaded Hillary.

Then Giuliani got more good news with Mukasey's appointment. The two men have worked together for decades, and so Rudy now has a sterling associate that he can point to with pride - in contrast to, say, his disgraced ex-police commissioner, Bernard Kerik, or Alan Placa, the ex-priest accused of child molestation who nonetheless found a place in Giuliani's corporate empire.

Mukasey has yet to be confirmed by the Senate, let alone tested in office. But if he can deliver on his tough-but-fair reputation, he will be an asset to George W. Bush, to Rudy Giuliani, and, perhaps most of all, to America.

James P. Pinkerton's e-mail address is pinkerto@ix.netcom.com.

more in /news/opinion

http://judiciary.senate.gov/hearing.cfm?id=2950

What's that "concession of $120 billion in tobacco penalties" thing they're saying Keisler did?

Keisler was instrumental in the government reducing the amount of money owed by the tobacco companies in payment to the states for their medical expenses in dealing with tobacco-related illnesses. He did this in order for the government penalties to withstand judicial scrutiny and be in line with D.C. Circuit and Supreme Court precedents.

http://commentisfree.guardian.co.uk/marcy_wheeler/2007/09/keisler_more_i...

"The really clever move was in the administration's substitution of Peter Keisler as acting attorney general for Paul Clement, whom Bush had named last month when Alberto Gonzales first resigned. By appointing Keisler acting attorney general, Bush has given the slot of chief law enforcement officer in the land to a longtime ally of AT&T, a telecommuncations giant whose decisions about cooperating (or not) with the government could have tremendous impact on the administration's surveillance policies."

http://thenexthurrah.typepad.com/the_next_hurrah/2007/09/why-keisler.htm...

"Bush was trying to get a good friend of Telecom in the AG seat as he attempts to ram through further amendments to FISA, most notably immunity for the Telecoms ."

This second article contains a link describing Keisler's behavior (from a liberal's perspective) in the tobacco settlement in more detail:

http://www.washingtonpost.com/wp-dyn/content/article/2007/03/21/AR200703...

http://www.nytimes.com/2007/09/18/opinion/18tue1.html?_r=1&ref=todayspap...

"Mr. Bush also announced yesterday that he was replacing Acting Attorney General Paul Clement, who was to serve until the Senate confirmed Mr. Gonzales’s successor, with Peter Keisler, a hard-line movement conservative. Mr. Bush’s sleight of hand in installing Mr. Keisler is an unfortunate indication that he intends to keep the department politicized for as long as he can."

I'll take that as a good sign...someone must be pushing for Tinder/Keisler/Conrad/Stone to be put on.

The likelihood is that the hearing will just be for some district court nominees. If a COA nominee is included, it probably will be noncontroversial Tinder. He already has his ABA rating.

Maybe it could take out an ad and give itself a discount!

he's from a 7th circuit state.

If it was just district nominees, Leahy would have put them on already and that would be the end of it.

And is that a good or bad thing?

I find it hard to believe that Giuliani would avoid putting a woman or minority on the court at the first opportunity, but is Mukasey perhaps his leading white male candidate?

Hopefully any Republican President will realize that he'll leave a more lasting legacy by appointing someone ten or fifteen years younger than Mukasey. I'd object to a Ted Olson nomination for the same reason.

I don't think we have enough direct evidence of Mukasey's judicial philosophy to know whether he'd be good or bad, although the support he receives from liberal Democrats is reason to be suspect.

Justice Lurton was the oldest nominee to the US Supreme Court - he was 65 and served five years. Interestingly, he was nominated by his former collegue on the 6th Circuit, William Howard Taft. Mukasey would be 68 in 2009, the earliest year he could be nominated. So a Mukasey nomination is not a realistic possibility - it wouldn't happen.

That does raise the interesting question of who would be Giuliani's top 2-3 picks for SCOTUS? Maureen Mahoney and Miguel Estrada are two prominent names on his Justice Advisory Committee. Here's my unoriginal guess - he nominates Mahoney for the Stevens seat and Estrada for SG. Estrada is then on tap for a second vacancy. Not ideal, but not bad either.

But what about Thompson? Romney? McCain? Do they have Justice Advisory Committees?

A Mahoney nomination would make particular sense if the conventional wisdom holds true and the Senate has 54-56 democrats after the 2008 elections (counting independents). I fully realize that Mahoney has strikes against her (her "personal comfort" with the Michigan affirmative action cases in particular) but allowances would need to be made for political reality. She would certainly be confirmable. Her credentials are top shelf and, in her favor, she keeps good company; Olsen, Estrada, Calabresi, Charles Fried, and Ronald Cass are some of the conservative legal luminaries on Giuliani's team.

My favorites for the next several Supreme Court vacancies, regardless of the administration, are well known.

1. Miguel Estrada
2. Margaret Ryan, Judge of the US Ct. of Appeals for the Armed Forces
3. Allison Eid, Colorado Supreme Court Justice
4. R. Ted Cruz, Solicitor General of the State of Texas
5. Dean Jim Chen of the University of Louisville School of Law

Of course, I also like Michael McConnell, Neil Gorsuch, William Pryor, Peter Keisler, Jerome Holmes, and Jennifer Elrod might even be an attractive nominee in short order.

I love Janice Rogers Brown, but I'm afraid that the clock is about to run out on her age-wise.

Maureen Mahoney, Alex Kozinski, and (this is new) former O'Connor clerk Viet Dinh would be disappointing nominees, I believe.

Better than any on the liberal bloc? Yes. But as good as Scalia, Roberts, Thomas, or Alito? No.

I'm confident that every one of the names on my top 5 list would be a solid addition to the conservative bloc and would be distinguished conservative legal luminaries for generations to come. Eid, Cruz, and Chen in particular would be like 5-ton elephants, intellectually, sitting on the conservative side of the see-saw. But Eid and Cruz also bring the benefit of being distinguished and well spoken litigators who aren't without a high degree of charisma as well. I can't really speak one way or the other as to the charisma of Chen. While not quite the brainiac that Cruz, Eid, and Chen are, Ryan has a good deal of litigation experience and seems like she would make a smart, sharp, and likable SJC witness, too.

How Appealing is reporting that Fourth Circuit judge Emory Widener, the man that Haynes was supposed to replace and that Getchell is now nominated to replace, has died. No wonder he took senior status in July. It probably would've been better, though, if he had taken senior status in 2002 and NOT made his retirement contingent on the confirmation of his successor. That way, he could've enjoyed his family more, and Haynes might've gotten confirmed quicker.

http://select.nytimes.com/preview/2007/09/23/magazine/1154689944149.html...

"Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.”"

"He considers himself a “judicial conservative,” he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues. “Including myself,” he said, “every judge who’s been appointed to the court since Lewis Powell” — nominated by Richard Nixon in 1971 — “has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court.”"

"When the chief justice is in the majority and Stevens is in the minority, Stevens decides who will write the principal dissent; when the roles are reversed, Stevens assigns the majority opinion. On the current court, in close cases, Stevens has wielded this power strategically, assiduously courting Kennedy to maximize the chances of winning five votes. In some instances, Stevens has assigned majority opinions to Kennedy to secure his vote; in others he has chosen to write majority opinions himself in ways that will persuade Kennedy to stay in the liberal camp."

"He also assigned several dissents last term to his usually mild-mannered liberal colleagues — Ruth Bader Ginsburg, Stephen G. Breyer and David H. Souter — that inspired some of their most scathing and memorable expressions of frustration with the court’s turn to the right. “I think I’ve made some awfully good assignments, to tell you the truth, in dissents,” Stevens told me, citing Ginsburg’s opinions in the cases last term about pay discrimination and the procedure known as partial-birth abortion. “I think assigning the two dissents that Ruth Ginsburg gave this year were two of my best decisions,” he continued, “because she did a really good job in both.” He added with a chuckle, “I’d rather assign majorities than dissents.”"

Of course, the spin then is, "Keisler gives big tobacco millions".

Speaking of Keisler, his nomination to the DCC simply MUST be withdrawn & be replaced by Eid, post-haste.

I have no problem with Rudy nominating the 60yo JRB to replace JPS in 2009. Her mother is still alive and was giving lucid interviews right & left during the FB nonsense. There's no way either side gets a J under 50 confirmed w/o the nuke ever again.

This is why getting Eid on the DCC is so crucial; she'll just die on the SCoCOL vine elsewise. Keisler & esp. PClem's resumes are already *perceptibly* strong enough, but her's isn't. But if she gets on, then she'll be perfect to replace Nino or Tony in 2011 or so.

About how the Roberts court could be on a collision course with America. He discussed this interview quite a bit.

Stevens seems to be trying to shy away from the notion that he will file his retirement on Jan 20, 2009, and that he really wants to stay on as long as he is healthy for nonpartisan reasons.

Whether he is sincere or not is anyone's guess.

Eid's husband, Troy Eid, is the U.S. Attorney for the District of Colorado:

http://www.usdoj.gov/usao/co/eid_bio_new.pdf

I doubt seriously that Eid would want to leave her husband behind in Colorado while she assumes a new judicial position in Washington, D.C. In addition, I think her Clarence Thomas clerkship would be enough for the Dems to block her. As a wife and mother, would she really want to spend a year in limbo as the Dems dissect her jurisprudence? Remember, she has written some pretty conservative articles as a college professor. I see too many potential personal conflicts for Eid that would cause her to decline a federal judicial nomination at this time.

http://www.washingtonpost.com/wp-dyn/content/article/2007/09/18/AR200709...

"While Mukasey's nomination is pending, the Justice Department will be run by former civil division chief Peter D. Keisler, a conservative appointee who this week was a surprise replacement in that role for Solicitor General Paul D. Clement. Clement, who was publicly tagged last month as the temporary replacement for Gonzales, wound up officially taking the helm at 12:01 a.m. Monday and relinquishing it 24 hours later, officials said.

The switch was made on Sunday by the White House with no input from Justice Department officials, said two sources with knowledge of the matter. The change added another level of uncertainty to life at the Justice Department, where nearly every top senior official has resigned in the wake of controversies under Gonzales.

"Peter is the acting attorney general," President Bush said Monday morning as he introduced the nominee to replace Gonzales. "Paul Clement, who agreed to take on this role, will remain focused on his duties as solicitor general, so he can prepare for the Supreme Court term that begins just two weeks from today."

The move raised eyebrows among liberal advocacy groups and Democratic lawmakers who had stalled Keisler's nomination by Bush for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. Keisler's earlier nomination to the U.S. Court of Appeals for the 4th Circuit was blocked by Maryland's senators.

As head of Justice's civil division, Keisler oversaw the administration's defense against lawsuits alleging violations of the rights of U.S. military prisoners at Guantanamo Bay, Cuba. He is a co-founder of the Federalist Society, a conservative legal group, and clerked for Supreme Court Justice Anthony M. Kennedy and former appeals court judge Robert H. Bork. He also helped lead the unsuccessful bid to place Bork on the Supreme Court.

"It's interesting that the White House chose to appoint a lawyer in this way . . . something that would be pleasing to ultraconservatives," said Nan Aron, president of the Alliance for Justice, a liberal group. Washington lawyer Carter G. Phillips, who recruited Keisler to the Sidley Austin law firm in 1999, said he will exert a calming influence at Justice after months of low morale and rocky relations with Congress."

There is no way Stevens will retire on Jan 20, 2009. He has enought brains to realize that if he retires on that day, everyone will know that he was waiting until Bush was no longer president. He is thinking he will wait until Jan 21, 2009.

As much as I would love Estrada and Brown and Paul Clements to replace Stevens and Ginsburg and Souter, we have one huge hurdle to overcome before then: November 2008 election. This election is critical because the next president will probably appoint three SC justices (Yes, I know we have heard that before, but ever time I say it, I believe it to be true!). And if the Democrats win the White House and keep control of the Senate, with even a bigger margin, the success we have had establishing a conservative SC will literally disappear over night.

While it's true that Stevens despises Bush, I predict he ain't going to retire until he's dead. I believe that article makes it perfectly clear that he's fallen into "If not me, who will protect/save/uphold/lead..." trap, and that he's grown to relish his power. Only upside to a Dem victory will be all the long faces every summer.

What a bracing, revelatory article. Thanks,BoBo. Anyone gotta e-mail address for that clown Rosen? I wanna blast him for praising Stevens' "intellectual consistency" after trashing Scalia & Thomas for the same thing in his recent articleon Roberts.

If you read that Stevens interview, it's pretty clear that he's not going anywhere under a GOP President unless he's compelled to by mental or physical impairment. Although, if the Dems get closer to 60 seats in the Senate he may chance it. That said, if the GOP wins in 2008, I predcit he doesn't retire before the next election. That would also allow him to break Holmes' age record and Douglas' longevity record.

Also, it's interesting that he says the Carhart case this year was "no big deal". For all the hand-wringing the liberals and Ginsburg did, I wonder if they'll mention that the leader of the liberals on the bench thinks it wasn't that big of a deal and will have litle if any impact.

He also seems to think that Roberts and Alito are pretty good bets to reverse Roe and Casey, which should be welcome news here, although he thinks Kennedy is still solid as far as pre-viability abortions and the "core" holding, but he's not 100% sure.

I don't see Ginsburg retiring voluntarily under a GOP President either. Or Souter for that matter. All the liberals know that one more conservative on the court and their life's work is ruined and the conservatives will be able to completely rewrite the books and dominate the law for the next generation. Why would any of them willingly give them that power? If Hillary wins, I could see a number of them doing so to make way for a younger group.

I think due to his age you could see Scalia step down under a GOP President, particularly if he knew that he'd be replaced by a strong conservative and felt that Roberts and Alito would continue the fight.

Kennedy will be 73 in 2009 as well so he's no spring chicken.

Given that come 2009 Stevens will be 89, Ginsburg 76, Scalia and Kennedy 73, Breyer 72 and Souter 70, there's a fairly good chance at least 1 will retire or be forced to between then and 2012.

It's Tinder and a District nominee to Illinois.

http://judiciary.senate.gov/hearing.cfm?id=2950

I have to say I am pretty surprised to see Dow's name there. There are still two non controversial NC DJs that were nominated in January and a bunch of March nominees that are also non controversial from places like WY, GA, and LA. DJs are important too! Irregarless, I am happy to see a CCA nominee on the list for this month. This was critical. Hopefully Elrod will be voted out today and confirmed next week sometime. It seems like Bush has a hard on for the 7th Circuit on all levels. Whatever. Just keep pushing through more judges.

She was voted out of Committee today on a voice vote. Now let's get that confirmation vote scheduled, for her and for Southwick.

jtp7 - I'm not sure why you think Bush is keen in the 7th Circuit. There haven't been many vacancies there. Sykes is his only current appointment at the Circuit level, and Tinder would replace Judge Manion, who will take senior status, presumably when Tinder is confirmed. In contrast, Bush has appointed 7 judges to the 6th Circuit (one deceased) with two more pending, and also 7 to the 3rd Circuit, with at least one pending (although Chertoff stepped down and Van Antwerpen took senior status).

I am refering to Bush nominating people to positions that aren't even vacant yet or are not judicial emergencies when there could be better places to be nominating judges. The Van Bokken seat in IN comes to mind as does the Tinder seat. Also even all the IL DJs that have been vacant have been pushed to the front of the line. For those Bush nominated before the seats were vacant and they had their hearing. The seat became vacant and they were filled shortly after the judge formally went on senior status. It is no big deal just a repeating pattern I noticed. The fact that both WI sens and Durbin are on the SJC might help matters as well.

Good news that there's a Circuit nominee on next week's (the "September Hearing") agenda. Even though it's Tinder (as expected, admittedly) and not Conrad (no surprise again).

But the fact that there's only one District nominee is disquieting and ominous. This means the Dems will get through this month with only 1 (ONE) DJ hearing. They are barely keeping up with the attrition rate. 12 District nominees are presently in Committee awaiting hearings, including the two January 9th North Carolina nominees mentioned by jtp7.

There is absolutely no excuse for not having at least three DJ nominees at next week's hearing. The Dems are blatantly stalling and should be pushed hard on this. But of course it won't happen. Leahy & Co. have long ago taken the measure of their GOP counterparts.

As I have said before, Clinton got 7 COA confirmations in 1999. If Southwick, Elrod and Tinder are confirmed this session, then the Dems will have confirmed six people (Smith, Hardiman, Livingston, Southwick, Elrod and Tinder). That leaves one more COA confirmation.

My first prediction is that Catharina Haynes will be this last COA confirmation of 2007. Her credentials are almost exactly the same as Elrod's, and, if Elrod isn't blocked, Haynes won't be either.

My second prediction: all of the remaining white male nominees will be stalled until next year and some, if not all, may be returned to the White House during the December break. Kethledge, Murphy, Stone and Getchell are all likely returnees because they all have homestate Dem senators against them. Keisler might get returned as well for fear that he might be recess-appointed. If he is returned, I don't know if that prevents a recess-appointment. I think he can still be recess-appointed, but I'm not sure. Does anyone know the answer to this question? If he can, he definitely should be. That will keep the pressure on the Dems to confirm him.

In January, I anticipate Bush will renominate all of the outstanding nominees (Keisler, Kethledge, Murphy, Conrad, Stone, Getchell and Matthews). In addition, I anticipate that he will fill all the rest of the vacant COA spots with hardline white male conservatives. Then he will leave it up to the Democrats to decide which 2 or 3 will get confirmed. In 2000, Clinton got 8 COA confirmations, but Bush is likely to get much less in 2008 if he continues to nominate people the Dems hate like Rosenstein.

Things will really slow down once they get into the AG hearings and all the related "oversight" issues.

1. Under the Recess Clause in Article II, Section 2, the President may temporarily appoint any person to vacancies in the federal courts (among other offices) "during the Recess of the Senate." It is not necessary for the person to be nominated to the office at the time. Theoretically, President Bush could recess appoint Rudy Giuliani or Hillary Clinton to the vacant D.C. Circuit seat.

2. Why do you think that the Senate Democrats will in any way feel obligated to match the 1999 total of 7 Circuit confirmations this year? Do you really believe that Leahy & Co. will feel bound to be consistent with their oft-repeated litany of comparisons to the 1995-2000 confirmation totals when doing so runs against their interests? I don't.

3. What the devil is happening with Southwick? The silence since just after Congress reconvened has been deafening.

Anyone catch in that Stevens interview how he says Roe was poorly written, and "really makes no sense". Also, he got all shook up at how Yamamoto got shot down while flying to the front, but apparently the people at Pearl Harbor (or Hamburg, Dresden, Hiroshima & Nagasaki, FTM) were just "soldiers in the line of fire".

And LOL that he thinks Ginsburg is "possibly" not more conservative than White, and how Rosen thinks the libs won't accept another RBG, DHS, or SB to replace JPS as "they're not liberal enough". Of course, JPS likely hates Clinton for his anti-miltary remarks & draft-dodging, and I'm sure he thinks Hillary isn't "liberal enough", either. So he's not going anywhere.

All there in black & white. I sure hope Albert Hodges and all the Evangelicals read that article. If I were Hillary *I'D* nominate Koh, Paez or Berzon as all historical evidence shows the Repubs won't fight to stop them.

My guess is he will be paired with Elrod and both will be confirmed by the full Senate simultaneously.