ConfirmThem

http://www.humanevents.com/article.php?id=25927

"The controversy resulting from the Democratic senators’ obstruction of judicial nominees has reached yet another boiling point. Last week Sen. Arlen Specter (R-Penn.) highlighted the immense disparity on the number of judicial nominees confirmed during former President Clinton’s term in office and that of President Bush’s. He said this “decisive imbalance” requires 'prompt action.'"

Courtesy of David Lat and Abovethelaw.com

http://www.washingtonian.com/blogarticles/people/capitalcomment/7079.htm...

"Democrats worry about the possibility of a Republican president replacing the liberals left on the court.

As a senator, John McCain was part of the bipartisan Gang of 14 that united to weed out some of President Bush’s more ideological judge selections.

The most intriguing McCain preference, given his Vietnam War background, would be Viet Dinh, a Harvard Law–educated former Justice Department official who was a key figure behind the USA Patriot Act. Dinh fled Vietnam for the United States in 1978, and his story of escape and survival—12 days in a boat with no food or water—almost rivals McCain’s in drama and courage. Sources say McCain is drawn to the escape narrative as much as to Dinh’s conservative ideology. Solicitor General Paul Clement would also be at the top of any short list.

For a new Democratic president, former solicitor general Seth Waxman is considered the next justice in waiting. He is a busy partner at Washington’s WilmerHale. But a President Barack Obama might appoint Massachusetts governor Deval Patrick to the high court.

To replace Ruth Bader Ginsberg, the almost-certain top choice for a Democrat would be 47-year-old Harvard Law School dean Elena Kagan, a former lawyer at Williams & Connolly, who once clerked for Obama legal hero Thurgood Marshall. She was a professor at the University of Chicago when Obama was working in law and politics there. She is also a favorite of Hillary Rodham Clinton’s, having worked in the Bill Clinton White House on domestic policy. Kagan is wired."

I love Paul Clement, but the mention of Viet Dinh as a McCain SCOTUS nominee I find disappointing and disturbing. Too often in the recent past, Dinh has taken "liberal" positions on some controversial issues. For example, he's all for the District of Columbia getting a seat in the House of Representatives. I view that position as unconstitutional.

Waxman and Kagan for the Dems are no-brainers. Personally, I think Kagan has a much better chance than Waxman. After all, he is a white male. I'm pretty sure that both Hillary and Obama would name only women or minorities to the court. Deval Patrick would be a sickening choice. He has neither the credentials or temperament to be a Supreme Court justice. IMHO, all he has going for him is race.

Reid just announced on the senate floor that Haynes and the four district court nominees (Miller, Hall, Mendez and Anderson) will get their votes tomorrow at the end of the day after votes on two bills.

Some progress is better than nothing, I suppose. I still want to see a fight for Keisler. He deserves it and we need him.

Did you hear about Rove on Hannity radio today? Jim Davies heard it, too. He said that while there is no perfect person, Romney "fills the bill" for what is needed in a vp candidate.

Earlier McCain affirm to Sean that he would pick a conservative and, without prompting, he indicated the most important part of the conservative he would choose would be someone who would select "strict, originalist judges" to use his own words. He said there could be up to 4 SCOTUS vacancies coming up.

The question I would have for McCain is how he plans on getting a strict originalist with a track record (also his words) through a Senate that could increase its number of Dim senators. How much would he fight for them? Would he compromise and appoint a "vanilla conservative" (Helms' words re Kennedy) or do what it took to get an originalist rammed through.

I think Dinh would be a great choice.

I have heard that a lot of evangelical leaders are putting pressure on McCain NOT to choose Romney because he is Mormon. They want Huckabee, instead, which I think is silly. Huckabee is not that much of a conservative on certain issues.

The problem is both upset different elements of the base, Romney Evangelicals and Huckabee Economic Conservatives

Why would McCain choose either ???

I personally like Huckabee but see a problem with him on the ticket.

As far Romney, I and many other christians conservatives have problems with his record.

I do not think it would be wise to choose either. He needs to select someone who brings both factions together

Gov Perdue of Georgia or Gov Pawlentry of Minnesota are two such choices

Patrick has apparently done such a horrible job a Mass Gov that I doubt there's much appetite for him for SCOTUS or anything else, ntm Rev. Wright would re-emerge during his hearings.

However, if Obama were to nominate him to replace Stevens (despite the fact he's utterly unqualified & makes Koh look like John Roberts), sure be nice that the ol' filibuster'll be around... :D

I can't believe anyone thinks McCain will nominate Romney or Huck. He & Mitt despise each other, and Huck would hurt as much as he'd help. It's going to be some Gov or Sen McCain likes personally, despite all the cryin' & commotin'.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Romney and McCain have reached a genuine raprochment. With that being said, I regret that some of the above might be right due to anti-Mormon bias. I write this as an Evangelical who supported/s Romney.

Romney's been deeply wounded by this anti-Mormon crap in the public square. He gave an outstanding speech on the subject that puts Obama's re Wright in the dust.

Methinks the MSM has abetted this bigotry because it/they (media's technically a plural noun) feared Romney would be the greatest threat to the Dim nominee.

By the way, I find it interesting that on this site the word "Dim" is tolerated for Democrats, but not "Juan" for John McCain. I will say that McCain appears to have grown in a good way, having truly listened to the people on immigration and the border.

My guess is that Pawlenty's the odds on favorite for McCain. He appears to be conservative in all areas. He's on the youngish side. I admire his loyalty to McCain in the darkest days of the campaign. I heard him introduce McCain at an Iowa event after he'd gotten an earful on immigration at his previous stop. Pawlenty's engaging and seems genuine. Isn't he a Catholic, which is a constituency at least as important as the Evangelicals? I'm not aware of Catholics opposing Romney.

Haley Barbour's another person I think would be great as veep.

But don't count Romney out just yet. There are a few straws in the wind, not all of which have I shared on this site.

UNANAMOUS CONSENT AGREEMENT

Brian Stacy Miller (Cal. 476)
James Randal Hall (Cal. 477)
John A. Mendez (Cal. 478)
Stanley Thomas Anderson (Cal. 479)
Catharina Haynes (Cal. 515)

Ordered, That on Thursday, April 10, 2008, upon disposition of S. 2739, following consultation with the Republican Leader, the Senate proceed to executive session to consider the following nominations: Brian Stacy Miller, of Arkansas, to be United States District Judge for the Eastern District of Arkansas; James Randal Hall, of Georgia, to be United States District Judge for the Southern District of Georgia; John A. Mendez, of California, to beUnited States District Judge for the Eastern District of California; Stanley Thomas Anderson, of Tennessee, to be United States District Judge for the Western District of Tennessee; and Catharina Haynes, of Texas, to be United States Circuit Judge for the Fifth Circuit; that there be a total of 4 hours of debate on the nominations, with two hours each under the control of the Chairman and Ranking Member of the Committee on the Judiciary; that upon the use or yielding back of time, the Senate proceed to vote on confirmation of the nominations in the order listed above; and that after the first vote in the sequence the vote time be limited to 10 minutes; that upon confirmation, the President be immediately notified of the Senate's action and the Senate then resume legislative session.

http://www.senate.gov/legislative/LIS/executive_calendar/xcalv.pdf

It's about time. We all had to wait until April 10th to obtain the first confirmations of the year, assuming there are votes taken on two other legislative matters. All five nominees were noncontroversial, yet they had to wait three months for no apparent reason.

Thereafter, who's on first? I'm betting on Pratter. Has Agee received an ABA rating yet? Is Keisler DOA because he is too brillant? As a COA nominee, is he immune from a blue slip or courtesy hold?

There are only three months remaining before the Dems virtually shut down Congress in order to campaign back home. Three months and counting.

Correction: "As a [DC] COA nominee, is he immune from a blue slip or courtesy hold?"

As suspected, Agee has not yet been rated.

It is interesting to note that all COA nominees during the 110th Congress who received a Well Qualified [WQ] rating or a WQ with 1 absention have all been or will be confirmed. [Southwick, Hardiman, Livingston, Smith, Tinder and Haynes]. Elrod was confirmed with a Q rating.

Using the WQ as a yardstick, the Senate then should also confirm Keisler, Conrad, Rosenstein and Pratter. All four received the highest ABA rating of WQ. Since Pratter is the only woman with a WQ rating, I believe that she will be the next in line with a hearing in May and a vote in June.

Leahy will only consider those nominees who both have an ABA rating (a Dem requirement since the beginning of time) and have been approved by both homestate senators ( the "blue slip policy"). Keisler doesn't need homestate approval from anyone because the D.C. Circuit has no homestate senators. That means every D.C. Circuit nominee, including Keisler, gets to escape one of the Dem criteria for consideration.

Using the two abovementioned criteris, after Haynes, there are only Pratter, Keisler, Conrad and Matthews who can be considered. The two Dem homestate senators of Kethledge, Murphy, Stone, Rosenstein and Smith are blocking them with the blue slip policy and will never let Bush fill the COA seats they control.

Keisler is considered "controversial" for four reasons:

1) he helped to c0-found the Federalist Society,
2) he clerked for Robert Bork,
3) he helped to defend the Bush GWOT strategies in court,
4) he is viewed as Supreme Court material.

Conrad is considered "controversial" because he criticized Sister Helen Prejean, the liberal Catholic nun who wrote the anti-death penalty book, "Dead Man Walking." In addition, as a district court judge, he has written some opinions the Dems consider anti-environment.

Matthews is considered "controversial" because he is an ally of White House Counsel Fred Fielding, he clerked for Clarence Thomas (like Bork, the Dems hate anyone associated with Thomas), and he is part of a group that honored Rush Limbaugh.

That leaves only Pratter, who will definitely IMO be the next be confirmed in either May or June. Although Pratter is also considered "controversial" (see this letter http://www.saveourcourts.org/the_facts/remote-page.jsp?itemID=33512761), she has two things going in her favor: she is a woman, and she has Arlen Specter, the ranking Republican on the SJC, behind her 100%. Why? Because when Pratter gets confirmed, Specter's protegee Carolyn Short gets her district court seat. Still, Pratter's confirmation will be more difficult and contentious than Haynes' because she has more of a record to pick apart.

Within the month, Agee should get his ABA rating. His nomination then will probably be the next one considered after Pratter's confirmation. He will get confirmed in either June or July because he is a "consensus" nominee off of the Warner/Webb list. By concentrating on him, the Dems can avoid dealing with Keisler and the other Fourth Circuit nominees long enough to hopefully kill them by the end of July with the Thurmond Rule while at the same time appearing to be reasonable - "look, we would've approved more Fourth Circuit nominees if Bush had sent us more consensus nominees like Agee."

As much as I would like to see Keisler confirmed, I think it is more important to fill additional vacancies in the Fourth Circuit. We are in danger of losing that court and that is simply unacceptable.

With some real pushing from Republicans (similar to what happened with Southwick), we might just be able to get Conrad confirmed. His qualifications are stellar and the seat he is nominated to fill has been vacant for an extremely long time. Why the senators from North Carolina are not stumping for a hearing on Conrad and his subsequent confirmation (similar to Strom Thurmond's strong and vocal support for Judge Shedd) is beyond me.

In my view, Matthews is a no go in this Congress (like Getchell). He should withdraw his name from consideration and give Bush a chance to nominate someone who has a chance of being confirmed.

This morning, Senators Specter, Hatch, Cornyn, Kyl, Brownback and Coburn took the floor to warn the Democrats that they would shut down the Senate if more COA nominees were not processed and confirmed. Hatch gave some statistics concerning the last time that no COA nominees had been confirmed by April 10th of an election year. The answer is 1848! Cornyn discussed Haynes and how far-left special interest groups have tried to unfairly smear her. Kyl discussed Keisler, while both Brownback and Coburn discussed Conrad.

Overall, the presentation of the issue of judges was impressive, but Specter said one thing that bothered me. He said he was still negotiating with Casey about Pratter. That sounds like to me that Casey is backtracking on her. He must be under a lot of pressure from civil-rights groups (see the LCCR letter I linked to in my previous post).

"Lincoln and the Will of God"
Posted by: Hugh Hewitt at 12:53 PM

Sprinting back to California after last night's "Three Tenors of Talk" in Phoenix with Michael Medved and Dennis Prager. (We could have gone twice the two-plus hours we did given the marvelous audience of KKNT listeners. I think we may have to take this show on the road more often.)

While blogging flags, treat yourself to Andrew Ferguson's wonderful essay on Lincoln and faith now online at First Things. The closing graphs:

“I don’t know anything about Lincoln’s religion,” a longtime friend, David Davis, remarked after Lincoln’s death, “and I don’t believe anybody knows anything about it.” Though Davis’ skepticism should give pause to more historians than it has, he overstated the case. We will never know for sure whether Lincoln held orthodox Christian beliefs, whether he believed in the Trinity, the divinity of Christ or his resurrection, the life everlasting, the forgiveness of sins, the inerrant word of God as revealed in the Old Testament or the New.

But perhaps the country has benefited from not knowing. The uncertainty has made Lincoln our common property, whoever we are, from Robert Ingersoll to Cardinal Mundelein to Nettie Maynard. It may be indeed that Lincoln’s is the only kind of religious expression that will travel in a free country like ours. His religion has lasted a century and a half and has appealed to believers of all kinds, and to skeptics too, exactly because of its generality. Yet it still means something definable and concrete: The country, Lincoln believed, is the carrier of a precious cargo, a proposition that is the timeless human truth, and the survival of this principle will always be of providential importance. We assent to Lincoln’s creed, wide open as it is, when we think of ourselves as Americans.

Read the whole thing.

From p. x of the 1926 edition of Carl Sandburg's "Abraham Lincoln: The Prairie Years"--In 1925 "we have seen the publication by Oliver R. Barrett of the 1858 address showing Lincoln with head bent in defeat just before the fall elections, hinting, with no cheap regrets, at the treachery of supposed friends and mentioning how he and his associates had been 'bespattered with every imaginable odious epithet.'"

1) Specter said the first bill the Republicans would block due to the Dem nonaction on judges would be the new patent bill.

2) Specter's comment on "still negotiating" with Casey over Pratter is probably the first sign of how hard it will be to confirm her. Originally, I thought her confirmation would be quick because of Specter's support. I doubt that now. Since the LCCR came out against her, I think the Dems have decided to make her their first anti-Republican election year judicial "guinea pig". They will poke and prod her on every one of her district court decisions.

This "investigative" strategy plays well with their ultimate aim of delaying as many Fourth Circuit nominees as possible until they can kill them at the end of July with the Thurmond Rule. By forcing a two month debate on Pratter instead of a shorter month long one, the Dems get both delay and the approval of some of their far-left base. I still think Pratter will be confirmed, just not easily so.

Washington, D.C.—U.S. Senate Republican Leader Mitch McConnell delivered the following remarks on the Senate floor Thursday regarding insufficient progress in confirming judicial nominees:

“It’s been 108 days since this Senate confirmed a federal judge of any kind. It last did so the week before Christmas, on December 18, 2007.

“Since then, the Senate has made precious little progress on judicial nominations.

“It has not confirmed any federal judicial nominees this year, and the Judiciary Committee has held only one hearing on one circuit court nominee since last September.

“Today we will finally be able to confirm some judicial nominees. That is obviously good news. But after we confirm the judicial nominees on the calendar that may be it for a while, due to the glacial pace at which the Judiciary Committee is proceeding.

“It’s not as if the Committee has been otherwise occupied. This is another week in which the Committee could have held a hearing, for example, on the qualified nominees to the Fourth Circuit Court of Appeals, but it again chose not to do so.

“These nominees meet the Chairman’s own criteria for prompt consideration. Nevertheless, they have been inexplicably languishing in the Committee for hundreds of days without a hearing while the Fourth Circuit is one-third vacant.

“We were told that having the support of home-state senators ‘means a great deal and points toward the kind of qualified consensus nominee that can be quickly confirmed.’

“Well, Steven Matthews of South Carolina has the strong support of both his home-state senators—one of whom, by the way, sits on the committee of jurisdiction. But he has been waiting 217 days for a hearing.

“And Judge Robert Conrad of North Carolina—whom the Senate has already unanimously confirmed to two federal positions, most recently to a life-time position on the district court—has the strong support of both of his home-state senators. Yet he has been waiting for 268 days.

“Now, my Democratic colleagues are quick to point to the lack of home-state support as a reason not to give someone a hearing.

“But it’s beginning to look like this criterion is being selectively applied: it’s readily used as a reason not to move a nominee—coincidentally, when the nominee is from a state with a Democratic Senator—but it’s ignored when the nominee has the support of two Republican Senators. At least, that’s been the case to date with Fourth Circuit nominees.

“For example, Rod Rosenstein is the U.S. Attorney in Maryland. He has been nominated to the Fourth Circuit.

“By all accounts Mr. Rosenstein is a fine lawyer and public servant. His peers at the American Bar Association certainly think so. They gave him the ABA’s highest rating, unanimously well-qualified.

“The Washington Post also thinks Mr. Rosenstein is an outstanding nominee. In an editorial entitled, ‘A Worthy Nominee,’ the Post noted that Mr. Rosenstein ‘has earned plaudits for his crackdown on gang violence and public corruption,’ and that one of his supporters is the head of the Criminal Division during the Clinton Administration, Jo Ann Davis, who called him a ‘perfect’ candidate for a judgeship—‘smart savvy and as straight an arrow as I have encountered.’

“The Post bemoaned the fact that Mr. Rosenstein does not, for some reason, have the support of his home-state senators. And out of deference to them, the Committee won’t process Mr. Rosenstein’s nomination.

“But Mr. Mathews and Judge Conrad do enjoy the strong support of their home-state senators, and yet these nominees can’t get a hearing. So it doesn’t seem that the same sort of deference is being paid to the Carolina senators.

“Now, I do understand that the Committee intends to give a hearing to a Fourth Circuit nominee from Virginia because the junior senator from Virginia, a Democrat—in addition to the senior senator from Virginia, a Republican—supports this nominee.

“It’s great that the Committee may actually, at some point, move a circuit court nominee, especially one to a circuit that is 33 percent vacant. But why is this nominee leap-frogging over two other nominees to that same circuit, both of whom enjoy the strong support of their home-state senators and both of whom have been pending for hundreds of days longer than this nominee from Virginia?

“It looks like if a Democratic senator in the Fourth Circuit opposes a nominee, then the Committee will not move the nominee.

“And that if a Democratic senator in the Fourth Circuit supports a nominee, then the Committee will move the nominee.

“But if two Republican senators in the Fourth Circuit—or, in this case, four Republican senators in that circuit—support two nominees, that doesn’t seem to mean anything.

“We need to treat all the senators who represent the Fourth Circuit consistently and fairly. We can do that by holding a joint hearing for Mr. Mathews and Judge Conrad. Doing so will make up for lost time and will afford the Carolina senators the respect to which they are entitled.”

Statement of Sen. Orrin G. Hatch

Before the United states Senate

Regarding Judicial Nominations

April 10, 2008

MR. HATCH. Mr. President, one of my colleagues was recently quoted as saying that facts are stubborn things.

The facts are that the majority has virtually shut down the judicial confirmation process.

Some say that the process always shuts down in a presidential election year, so I checked every one since I was first elected.

By today, April 10, in each of those presidential election years, the Judiciary Committee had held hearings for multiple appeals court nominees.

But this year, only one appeals court nominee has had a hearing, and there is not another one on the schedule.

The Judiciary Committee held no confirmation hearing at all last month, and last week’s hearing was yet another one with no appeals court nominee.

The facts are just as stubborn when we look at the entire 110th Congress.

Since I was first elected, there have been seven Congresses like this one that included a presidential election year.

During each of these presidential election Congresses, the Judiciary Committee held hearings for an average of 25 appeals court nominees.

But today, more than fifteen months into the 110th Congress, the Judiciary Committee has held a hearing for only five appeals court nominees.

This amounts to just one-fifth of the average for previous presidential election seasons.

If the partisan roles were reversed and the pace of hearings for appeals court nominees had slowed to perhaps one-half or one-third of the historic average, I can guarantee you that my friends across the aisle would be down here raising the roof about how we were failing to do our confirmation duty.

In fact, when I chaired the Judiciary Committee under the previous President and the hearing pace was actually much faster than it is today, they did complain early, loudly, and often.

But the pace today is worse than one-half, worse than one-third, worse even than one-fourth of the historic average.

The current Judiciary Committee hearing pace for appeals court nominees is the worst in decades.

In fact, there is no current pace at all.

Or look at what is going on, or I should say what is not going on, here on the Senate floor.

The current Judiciary Committee chairman in the past often insisted that 1992 provides the standard for judicial confirmation progress.

Like today, his party controlled the Senate and a President Bush was in the White House.

By this time that year, by April 10, 1992, the Senate had already confirmed 25 nominees to the federal bench.

It does not look like the Senate will confirm 25 judicial nominees for the entire rest of the year.

This afternoon we will finally have the opportunity, the first opportunity of the year, to vote on a few nominees to the federal bench.

The majority has stalled judicial confirmation votes longer this year than in any presidential election year since 1848.

Yes, you heard me right.

This is the latest start to judicial confirmations of any presidential election year in 160 years.

That was the century before last.

That was before Utah even became a territory, let alone a state.

The last time the Senate waited this long in a presidential election year to confirm federal judges, James Polk, the 11th President, was in the White House.

What could possibly explain such abject confirmation failure?

I might have missed it, but I am not aware of any domestic armed conflict today that is disrupting the Senate’s business.

Yet the Civil War did not stop the Senate in 1864 from confirming seven judges before April 10.

Senators today do not have to use horses or carriages or travel on dirt roads.

Yet slow, burdensome travel did not stop the Senate in 1884 from confirming five judges before April 10.

The Great Depression did not stop the Senate in 1932 from confirming 14 judges before April 10.

The possibility of the Senate majority party capturing the White House did not stop Republicans in 2000 from confirming seven judges, including five appeals court judges, before April 10.

Today is April 10, 2008, and we will not confirm a single nominee to the federal bench until this afternoon and even this late start was noticed only yesterday.

Facts are indeed very stubborn things.

The majority has already virtually shut down the judicial confirmation process.

The Senate has not always operated this way.

The majority is refusing to do what the American people sent us here to do because they can.

That may be the reason, but there is no excuse.

I yield the floor.

The leaders of the Democrat party have proved themselves morally and ethically bankrupt on so many issues, it's remarkable. For our purposes here, I must say I am truly excited to watch them utterly collapse when McCain wins the presidency and they realize all their obstruction, obfuscation, and unethical behavior was for nothing. When they realize McCain will get to fill SCOTUS vacancies and COA vacancies for the next 4 years, they will be devastated, and I will rejoice!

Here's a question: Since Leahy/Reid/Webb are showing such desire to promptly move forward (or so they say) with Agee's nomination because he was approved by Webb/Warner and there is a need on the 4th Circuit, why for the love of Pete hasn't Bush nominated forthwith another suitable conservative from the Webb/Warner list? There are no plausible arguments (not that the Dems need any) for the Dems to go forward with one but not both, since there is a serious emergency in the 4th Circuit.

Bush should today (or tomorrow) nominate John Douglass from Richmond Law School or VA District Court Judge Glen Conrad and be done with it. Even if they are not originalists (I don't know), they will be better than anyone Obama or Hillary nominates.

Some posters on this site have suggested Ted Cruz, the Texas Solicitor General, as a future SCOTUS prospect for a Republican President. He beat fellow prospect Paul Clement in the Medellin case, and he led a powerful amicus coalition on the Heller Second Amendment case.

Yesterday, the Texas Attorney General announced that Cruz will be leaving this Spring. No word on where Cruz is going, but presumably he will go into private practice--at least for a little while. Here's a link to a short article: http://www.law.com/jsp/tx/PubArticleTX.jsp?hubtype=TxCaseAlert&id=120773...

James Ho (former Thomas Clerk, former legal counsel for Sen. Cornyn) will succeed Cruz. James is brilliant, and he will join Greg Coleman and Ted Cruz as impressive, conservative SGs for the state of Texas.

I bet Cruz moves to Washington, D.C. and becomes a Supreme Court litigator. He could make millions.

Keisler already would receive a unanWQ for a SCOTUS nomination (as would PClem, or Mahoney FTM), and after a few years on the SCOTUS bar, so would Cruz. They don't 'need' to be COA judges, tho of course it would be nice if they were.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Add Estrada to that list, as well as a handful of others: eg, Carter Phillips.

I didn't include Estrada (tho he certainly belongs), as I presume he'll contine to decline a nomination, although he might feel that McCain nominating him to SCOTUS is entirely different than Bush doing so, plus his kids are older now, maybe he's remarried...

Obviously, what he went through, you never completely get over. Shame he did so poorly in his DCCOA hearings, on top of being abandoned by the WH.

David Levi also probably belongs on the list, as would Atwal for Obama.

Imagine Obama replacing Stevens, RBG & Souter with Patrick, Kagan & Koh. Talk about a course of human events where certain things may become necessary...

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.