ConfirmThem

In her book, Greenburg detailed the reasons why several possible Supreme Court candidates were bypassed by the Bush II administration. She said that Priscilla Owen and Janice Rogers Brown were not nominated because various Democrat and Republican senators said they could not be confirmed. In her new ABC News blog, however, she now says that Owen and Brown are at the top of the White House's shortlist with Diane Sykes. How would Ms. Greenburg analyze the current chances of each of these three excellent jurists?

but a response to a question from the Q&A at SCOTUSblog: the question was asked which justice she did not speak to (she says she spoke to 9 including O'Connor). It seems pretty obvious to me it must have been Souter, anyone disagree? all the others are much more fleshed out, all the others have more positive slants, while Souter's profile seems mostly informed by those disappointed by him. it also fits what we know of Souter's reclusive personality. plus, there's process of elimination. we know she's talked with Roberts, Stevens, and O'Connor (though I don't know if the Stevens interview counts as "for the book" or if there was another). she moderated a debate between Scalia and Breyer, and neither is shy about sharing their views or experiences. likewise Kennedy, and he and Alito both seem to have too much information to have been drawn exclusively from previously on-the-record sources. the information on Ginsburg was more sparse, but it led me to believe she spoke with Jan as well. unless she drew on a previous interview with Rehnquist and he is included among the 9 (and so there is also a 2nd current member she has not spoken with) - and there seems to be no indication that the late Chief is included in such calculations - Souter seems to be the odd man out.

don't expect you to ask that though, as she would not reveal it at SCOTUSblog (though maybe she'd confirm if asked directly "was it Souter?", but still no, not asking you ask that)

I'll try and come up with a question later tonight. very cool Alexham, thanks!

Hey, that's cool. I'll post a comment here tomorrow with a question or two. Thanks Jan and Alexham.

I'll just submit these questions right now:

Jan (can I call you "Jan"?), in your book, you quoted nominee Harriet Miers as saying that the blogs would be important.

(1) 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?

(2) 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?

(3) 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?

(4) Looking to the future, what can we bloggers say to persuade more justices to retire ASAP? :-)

Thanks. Great book by the way. Glad you followed Bob Schieffer's advice to leave out the dull stuff.

I recall reading a year or two back several pieces that said Souter did in fact have a deep antipathy for Rehnquist (it may have been mutual). don't remember where those were though. so the answer seems to be "yes", but I would be interested if Jan has any additional insight into that as well. Souter was also the only Justice not to issue a statement mourning Rehnquist.

(I also seem to recall there was also some curious sign that there may be some animosity between Roberts and Souter too, though that would be odd. maybe he didn't attend his swearing in or something. though I'm pretty sure he was at Alito's - at which we got the photos that made him "look like death", as I've described them).

one other thing that may bear on that: the antipathy may spring from Rehnquist's displeasure at his slow opinion writing (which JCG notes in her book, though not any reaction from fellow justices as far as I can remember). still, would be interested to know if JCG has any other info on that (though if she did not speak with Souter, as my deduction leads me to believe, and unless she has previously spoken with the Chief, which I would not be surprised by, but would be surprised if it touched on his relationship with Souter, that information will probably be limited, or second-hand at best).

My question for Jan is what does she think the decisions will be in the 4 most watched cases of the year:

The Partial Birth Abortion cases
The School Integration cases
The McCain-Feingold case
The EPA/Global Warming case

My prediction is the conservatives win the first 3 by 5-4 and that Kennedy gives the liberals a 5-4 win on the EPA case.

I'd be interested in seeing what she thinks, based on her knowledge of the Court and the new justices

I haven't had the chance to read the book yet, so perhaps she has already addressed the questions I have about Justice Kennedy:

1) How intense are the efforts to tip him to one side or the other, right now? Are the two factions making a strong, conserted effort to bring him to their side?

2) To which side is he seeming most receptive to?

3) Does he seem open to influence, or is he "forging his own path?"

1) Stevens has recently said that he believes himself to be a conservative. Is he being honest, or just disingenuous in order to spite those conservatives who have criticized his past opinions?

2) Does Souter feel in any way that he acted duplicitously in how presented himself to Bush I and his advisors?

3) Many conservatives hoped that Edith Jones would be nominated by Bush II, but she was passed over three times (Roberts, Miers and Alito). Was she not nominated due simply to her comments against Roe or was there a larger problem concerning an antipathy to her interpersonal style?

Does Souter feel in any way that he acted duplicitously in how he presented himself to Bush I and his advisors?

Ms. Greenburg - I've read your book, and it is a marvelous accomplishment. Congratulations, and well done.

Towards the end of it, you assert that Justice Alito is the Conservative's equivalent of Justice Ginsburg. Can you please elaborate on that point?

I'm curious about Harriet's recent departure. Does Jan see a sufficient keeper of the judicial conservative flame in Harriet's replacement, Fred Fielding? Is the President going to continue to get great recommendations for his judicial nominations, or has the landscape changed?

it's been reported that AG refused to be nominated, out of a sense of loyalty to the President and the evidence that his nomination would harm him with the base (though I don't believe you mentioned this in your book). If you have heard this as well, do you have any indication whether he would do so again if there were a 3rd vacancy? (so too Owen) and either way, do you feel conservatives would be more accepting of his nomination for a 3rd vacancy, or if potential Dem opposition over WoT positions would be greater or less than they might have been for a previous vacancy?

I know he has a Bork-ish appearance in front of the camera, but he's widely regarded as the most accomplished, qualified conservative candidate for the S.C. Why was he not on previous Bush short lists, and does he still have a chance in the future?

There are a large number of openings left on the Appelate Courts. Will the White House attempt a major offensive in this Congress to try to get as many of them filled as possible, or is this issue being put off to the back-burner, completely?

How did the White House feel about the Gang of 14 deal, and did it have any impact on the choices of Alito or Roberts? Did it affect the President in terms of future lower court nominations, such as in sending fewer up than he might have otherwise?

(I haven't read the book yet so maybe some of this is addressed there.)

Here is the second interview with Greenburg. It answers several of Mayhem's questions:

http://www.scotusblog.com/movabletype/archives/2007/02/ask_the_author_16...

"Looking forward, Roberts’ real challenge will be reining in Justice Kennedy, so that he is not presiding over the “Kennedy Court,” with every case a battle between left and right over AMK’s vote. Roberts’s goals of narrow opinions and consensus must be viewed in the context of constraining Kennedy—not constraining Thomas and Scalia, as some have suggested. Roberts needs Thomas and Scalia go along with him, to be sure, but I think the idea of constraint and narrowness is targeted more at limiting Kennedy’s power to dictate the Court’s direction—as O’Connor determined the Court’s direction in the Rehnquist era. I expect Roberts to get takers on both sides for that approach. The liberals know Kennedy is no O’Connor—he’s more conservative, and they will lose his vote much more often than they lost hers."

At several points during the O'Connor and Rehnquist vacancies, Harriet Miers apparently reached out to Miguel Estrada several times. She hoped to persuade him to consider a nomination and she even offered to have Mitch McConnell call Estrada and promise him that he would go to the mat for his nomination. Who were the driving forces behind this effort? Were they administration lawyers simply hoping to get Estrada onto the shortlist, or was it the president? If the president was the force behind the effort to persuade Estrada, does that suggest Bush wanted to nominate Estrada for one of the vacancies? Despite his past hesitancies, do you believe Estrada could be convinced to accept a nomination in the future? Probably most importantly, is Estrada considered by prominent conservatives to be a judicial conservative in the mold of Scalia and Thomas?

from Supreme Conflict, it seemed she was at least briefly considered before Miers was tabbed, but a minor recusal issue over a stock in her husband's portfolio caused her to be put aside for the time being. so how seriously was she truly considered, and would the fizzle of the Vanguard case as an obstacle to Alito's confirmation eliminate that concern if a seat were to oepn up this year (and would she be in the running at all)?

Not a single reference in Jan's book to Connie Callahan. I found that odd, given that (as reported right here on Confirm Them) (i) the day before the Miers nomination, John Fund stated his belief that Callahan was the nominee, and (ii) during the pendency of the Miers nomination, Bob Novack claimed that, before settling on Miers, "President Bush had advised senators that his probable choice for the Supreme Court was federal Circuit Judge Consuelo Callahan of California".

I'd be curious whether Jan knows anything about this.

My question to Jan is this:

In the 3rd installment of her answers to questions on SCOTUS Blog, she said that dems made a concerted effort to block women and minorities to lower courts in Bush's first term to avoid another Thomas mistake.

Jan's response to this is to say, "It must be bitterly ironic to dems that this resulted in 2 white males ending up on the Court"

Is there really anything ironic about this at all? In fact, isn't this EXACTLY what dems wanted? They knew Bush would get conservatives on the Court they just didn't want him to expand the GOP by promoting women or minorities which Dems consider their constituencies...