ConfirmThem

First, I think Durbin just wants to be a general nuisance to the White House. Second, and more importantly, I think he is setting the groundwork to obstruct Keisler. Unless he wants to impeach Kavanaugh, which won't happen unless the Dems don't mind Republicans trying to impeach Stephen Reinhardt or Guido Calabresi, there is really nothing he can do about Kavanaugh. However, there is a lot Durbin can do to paint Keisler as a clone of Kavanaugh since both at the time of their nominations were government lawyers who had formerly clerked for Anthony Kennedy. Durbin probably wants to sell people on the notion of guilt by similar circumstance: if Kavanaugh was shady in his dealings with the SJC, maybe Keisler will be just the same. After all, aren't his circumstances suspiciously like those of Kavanaugh? Maybe Keisler is just another shady Bush lawyer who will lie and cheat his way to a judicial confirmation?

A few months back everyone thought that when Kyle and Feinstein agreed to move the 12th DC COA seat to the 9th COA, that Keisler was somehow involved in that deal. It now looks more and more like that is not the case. I just can't figure out why else Kyle would make that deal.

...

Why is anyone surprised - Kyl got the shaft from Feinstein, so the 9th CC gets an extra seat, Keisler goes nowhere, and Kyl moves on to work on a bad immigration bill.

It is tough to root for a team where even the best players are not Major League ready. But at least I'm not a Cubs fan...

One of the most important reasons why judicial nominations need to be moved as quickly as possible through the confirmation maze is simple: the longer the nomination is outstanding, the greater the chance that something will come up to derail it.

I think this has happened to both the nominations of Keisler and Southwick. Initially, I think the Dems would've been happy to let Keisler be confirmed before last November's election with a little arm-twisting, but Grassley and Sessions stepped in to slow the nomination down while others concentrated on the dead nominations of Boyle, Myers and Haynes. When push came to shove, neither the SJC Republicans or the faint-hearted Mr. Frist were willing to give the Dems the little nudge it would've taken to get Keisler confirmed. After the Dems won the election, they were no longer weak and decided to directly yet slowly obstruct Keisler on their own.

By the time the disorganized Republicans came together over Keisler and realized their previous mistake in not pushing him sooner, it was almost too late. I think Kyl made a last resort agreement with Feinstein in the hope of salvaging Keisler's nomination by getting her to withdraw her hold on him. But when the floor fell out from underneath Southwick, Feinstein realized that she didn't need to compromise anymore. She now knows she has a great chance of getting more liberal seats and confirmations for her precious 9th Circuit next congress without resorting to any help from Kyl.

As far as Southwick goes, I think negative circumstances overtook his nomination also because he wasn't processed soon enough. In order to avoid dealing with Keisler, the Senate Dems apparently were initially fine with fast-tracking Southwick. Unfortunately, the liberal special-interest groups then jumped into the picture. Rather than quickly confirming Southwick before Neas and Aron could squawk any more, the Dems gave them just enough lip-service to allow momentum to crush Southwick's nomination.

In general, I still think Keisler has a small chance of being confirmed. However, I think Southwick's nomination is totally dead. I think the Dems are likely to continue using Keisler's nomination as a carrot to dangle in front of the nose of McConnell whenever they want him to more yielding. Nothing may result from this game, but it keeps Keisler's nomination still alive if ever so slightly on life-support.

Leegin: 5-4 for the conservatives

Panetti: 5-4 for the liberals

Kennedy really is a squish on the death penalty.

10:15: Chief announces schools cases. Decided jointly. Plans reversed. 5-4, Kennedy concurs in judgment.

Could someone please analyze what these results mean?

10:15 AM | Lyle Denniston

Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result.

"Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result."

Interesting to find out how far Roberts went and how much Kennedy limited it.

Just kidding.

In the affirmative action cases, it is important to note if Kennedy's concurrence in any way waters down the Chief Justice's majority opinion. I hope not.

In general, though, a good day. The Fab Four stuck together and only lost Kennedy on one case.

10:23: Kennedy does not join the part of the opinion stating that there are no compelling interests involved. Thomas has a separate concurrence as well.

via scotusblog.

In cases decided today. Thanks.

Check the following website. They do a good job of explaining Supreme Court decisions:

http://www.scotusblog.com/movabletype/

He wrote two majority opinions and a concurrence that may control the outcome of the affirmative action cases. I guess there are some perks to being a swing vote.

Courtesy of Scotusblog:

"Kennedy said in his concurrence that ending racial isolation may sometimes be a compelling interest in public education."

It is Breyer's turn to read his dissent aloud from the bench in the affirmative action cases. During the last two months, all four liberal justices have now read out bitter dissents from the bench. I don't think any of the four will retire under this present set of conditions. To do so under this president would destroy their cherished New Deal and Warren Court precedents.

"Kennedy said in his concurrence that ending racial isolation may sometimes be a compelling interest in public education, and can be pursued with race as "one component" of the plan to achieve racial diversity."

has not been reading for over 10 minutes. What is the record?

...

I am surprised that Kennedy would allow race to be used as a component to achieve racial diversity. That was what the Law Schools were doing in Grutter and he dissented there.

Justice Stephen G. Breyer next opened his microphone and began a long recital for the dissenters. The several oral statements made the announcement one of the longest in years, running to more than a half-hour.

I'm sure that Breyer wants to read for a long time so that tomorrow in the NYTimes liberal doyenne Linda Greenhouse can make hay about his "bitter and hearfelt" dissent.

its 185 pages!!! (Roberts, Kennedy, Stevens and Breyer opinions combined)

also, Kennedy saying that there may sometimes be compelling interests doesn't strike me as necessarily watering down the majority opinion. that doesn't necessarily mean it doesn't, but we need more than this one line to draw any conclusions to that effect, IMO. reading...

"The way to stop discriminating on the basis of race is to stop discriminating on the basis of race."

man I love this guy

That is how long the oral statements lasted on the race case.

I am not necessarily surprised by Kennedy's concurrence in the sense that last year in the Texas redistricting cases he said contrary to the Fab Four that racial discrimination did exist in the creation of one of the districts. In addition, Kennedy is noted for not wanting to close the door on the possibility of bright line standards in the future even if such standards are impossible at the present moment to ascertain. He is hoping that one day there may be more consensus on when race-based decisions are permissable even if such consensus doesn't exist today.

their man on the ground reports on the cases (really just the school cases) and adds "I should note there were no retirements announced today."

and the anchorwoman says, "That's the good news from the Supreme Court today, I guess, no retirements, no changing of the guard any time soon."

Olberman has contaminated that whole outfit (though by his standards, that mild statement is downright professional).

Roberts, Kennedy, Stevens and Breyer and Kennedy--Were these four in the majority by themselves in a case? Strange alliance.

that 185 pages includes a long concurrence by Thomas as well. and the syllabus of course, but that's just a few pages.

No, Roberts and Kennedy were in the majority in the affirmative action cases. Kennedy wrote a concurring opinion that waterdowned Roberts' main opinion. Stevens and Breyer were both in the minority, and each one wrote his own dissent. The four justices were never on the same side of the argument.

Thanks.

is the conclusion I draw from today. Stevens will stay on until he dies or really can't do it anymore, regardless of President. Souter probably will step down in 2009 regardless of President. Ginsburg will do likewise if the President is a Democrat.

oh well.

I just saw the cloture vote failed.

The cloture vote is still going on. Are you psychic?

http://volokh.com/posts/1183043711.shtml

"Justice Stevens filed a brief dissent, which among other things expresses JPS's "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

"The Kennedy Court lives! Two Kennedy majority opinions (both 5-4) and a limiting and controlling concurrence in the race cases. What this spells for the "Roberts Court" and his goal of unanimity is unknown.

I will say it implies that Roberts holds his views above mere unanimity (as he should), though his talk of moving incrementally and approaching cases "Umpirically" has been well documented as likely simply incorrect. The only thing I know for sure is that his approach to unanimity is more Warren than Burger, as Roberts certainly has not adopted Burger's "give up and join them" approach to getting majority opinions.

In any event, this decision is disheartening, and difficult. Breyer's dissent, though overlong, is eloquent. Roberts' cabining of Grutter (wasn't really about race at all) and distortion of Brown is painful as well. And expectedly Kennedy gives us "we go too far today in saying that race can never be used, but I will leave it to everyone else to guess when I think it may be used," thus ensuring his central role for years to come."

Now you are correct. The cloture vote just failed.

CNBC is on the TV in the office and they showed the vote with a caption that it had failed.

Almost the same vote as the 45-50 of the failed cloture vote recently, though several people voted differently. Will be interesting to see how the votes compare - who came to their sense vs who gave in to arm-twisting from leadership.

"But at least I'm not a Cubs fan..."

You're killing me here.... :-)

5-4 loss I assume?

Not surprising. After Atkins and Simmons, we knew where Kennedy is on the death penalty.

Still a good term overall when he only wavered on 2 cases.

According to recent practice, justices do not announce their retirements from the bench on the final day when major decisions are announced. Doing so would totally obliterate news coverage of those decisions.

So there was little or no chance that Souter would announce his retirement this morning if he has indeed decided to retire. We went over this same point extensively a year ago.

I've seen a great deal of pseudo-certainty in these pages that Souter will not retire this summer. Not being privy to any solid inside information on this matter, I will retain an open mind on this for the next few weeks. Unless others do have such information, I suggest that they retain an open mind and desist from being so cocksure in their unqualified statements that Souter will not retire. If you have any such information, please share it with us now.

I think some people are overreacting to their disappointment last summer and a feeling that they were duped into expecting a retirement that didn't happen. But that should not cloud their openmindedness this year.

I think the door on a possible Souter retirement remains open through July at the least. At least I am not closing my mind to that possibility.

That gives Souter time enough to disappear to New Hampshire and mail his letter to the President, thus, he can avoid the press.

Beyond that, it's not happening.

Well, as was universally expected, there was no retirement this year. At least we didn't have any Insiders raising our expectations to the contrary. I agree with Bobo that there is little chance of the four liberals retiring under a Republican president unless there are health issues involved.

In any case, for Stevens, health issues are going to be inevitable, and I continue to be amazed that he is still on the bench. Clearly, no person in their late 80s is intellectually at the top of their game, and it would make much more sense if he stepped down for someone who is able to fulfill this job with the intellectual energy that it deserves. Now, we must look to the 2008 election if we are to secure a conservative five-member court for the long-term.

Given that the President and the Senate just attempted (and failed, thank God) to stab their constituents in the back in order to pander to Hispanic voters, and managed to piss off everyone in the process, I predict Democrats will make strong gains in 2008, gaining at least 4 Senate seats and probably the presidency (if anyone but Giuliani is the nominee). It will be impossible for any real conservative to get approved with such a large Democratic majority and Roe v. Wade clearly on the chopping block.

Let's hope that Roberts can make some headway in bringing Kennedy over to our side on other important issues (like war on terror cases), not just free speech and race cases where Kennedy has always been more conservative than moderate.

Why shouldn't I be allowed to express my pessimism that there will be no more SCOTUS retirements until 2009? I think there is more evidence to back up the claim that Souter will NOT retire this year than there is to say he will. Are you telling me that I shouldn't express my opinion because it isn't based on any hard evidence?. If that is the case, I must tell you not to express your opinion because it appears to me to be based on even less evidence. Please don't make any more ultimatums about how we can discuss possible retirements here on this site. We all are entitled to our own opinions, especially if we can back them up with circumstantial evidence.

I'm a lifelong Cardinals fan, although they are not exactly tearing it up this year. And with the donks controlling the Senate, the judge "game" isn't proceeding too smoothly, either.

You misinterpret my post. In it I referred to "unqualified statements" that there will be no retirements, not to reasoned analysis or expressions of opinion. I was in no way saying that people here shouldn't express their opinions on this or any other matter.

I was emphatically not referring to your posts, as I have the highest respect for your analyses and have found them consistently informative and valuable. In fact I considered stating in my #45 that I was specifically not referring to your previous posts, but decided it might not be appropriate to be so personal. Maybe that was a mistake, but please don't take umbrage since my comments were not directed to you or to other posters expressing opinions in a reasoned manner, as expressed in the final sentence of you post.

I was making no "ultimatums", except perhaps insofar as I'd prefer not to see any statement of the following type: There's absolutely no way Souter/Ginsberg/Stevens is gonna retire this year or next [period]. That type of pronouncement leads nowhere.

My main purpose was to stimulate discussion on the subject of a possible Souter retirement, not attempt to repress it. This effort has evidently been at least somewhat successful.

Robert1- I still haven't forgiven the Lou Brock for Ernie Broglio trade. That kinda dates me, doesn't it?

On a more substantive note, I loved Clarence Thomas's concurrence today in the schools cases. It's chock full of quotable gems smacking down Breyer's dissent, like:

"Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories."

"What was wrong in 1954 cannot be right today. Whatever
else the Court's rejection of the segregationists' arguments
in Brown might have established, it certainly
made clear that state and local governments cannot take
from the Constitution a right to make decisions on the
basis of race by adverse possession. The fact that state
and local governments had been discriminating on the
basis of race for a long time was irrelevant to the Brown
Court. The fact that racial discrimination was preferable
to the relevant communities was irrelevant to the Brown
Court. And the fact that the state and local governments
had relied on statements in this Court's opinions was
irrelevant to the Brown Court. The same principles guide
today's decision."

You go, Justice Thomas!

Sorry if I sounded too reactionary in my earlier response. I just needed clarification as to what you meant in terms of retirement discussions. I recognize that many on this site would like to see our new somewhat unpredictable five person majority on the Supreme Court solidified with another consistently conservative vote, but I think we also need to be realistic in our analysis. Remember that the liberals are just as aware as we are of the consequences of another retirement under Bush. I'm sure Stevens, Souter, Ginsburg and Breyer have all had recent physicals to ensure their health for the next eighteen months! I bet Harry Reid and Nancy Pelosi drove them personally to the doctor's office.

I have no clue if Outsider is right that there remains a possibility of a retirement, but I do think there is a real poetic justice to George W. Bush not getting any more Supreme Court nominations. A person who attempts to squander the opportunity of a lifetime to put his crony on the Supreme Court does not deserve any more such opportunities.

Before the fall of 2005, Bush governed as a conservative, and had strong support from the Republican base. In July of that year, he nominated John Roberts, who was widely acclaimed by conservatives as a wise choice. Bush was rewarded two months later with another vacancy. Expectations were high for the replacement of O'Connor...would it be Edith Jones, Luttig, Alito? And then, I woke up early that morning and heard two words: HARRIET MIERS.

As a person who strongly supported the president, took a few days off before the 2004 elections (for the first time in my life) to campaign for him, it is difficult to describe what a shock that was. The nomination of Harriet Miers was the beginning of the separation between the president and his base of power, the people who voted for him TWICE. During those four weeks in October, Bush and his cronies called us, the Miers opponents, sexists, elitists, and other words he never dared to use against his real opponents, the Democrats. It was sickening and he lost me in that month and probably many others.

In the last month, since the immigration debate began, he has severed the last bonds with his base. He even dared attack conservatives as those who don't want what's best for the country. Today, the divorce from the base became finalized. Bush Cabinet officials were standing outside the Senate Chamber begging Republicans to vote for the bill. They couldn't even get that lightweight from Ohio, Voinovich, to vote for cloture. Today is the day when Sean Hannity's (and Limbaugh's etc.) opinion on an issue became more important for most Republicans (and thus their Senators) than that of the President of the United States. It's a sad day for our party, yet Bush deserves it...every last drop. As Gingrich said, this administration is the Republican version of "Jimmy Carter", and I fear it will be followed by a decade of ascendancy of the opposing party, just like the last Jimmy Carter.

While I violently opposed the selection of Miers because I thought she was woefully underqualified, I still would rather have Bush choose the next Supreme Court justice than Hillary Clinton or Barack Obama. Sonia Sotomayor or Elena Kagan would be considerably more liberal on the Supreme Court than either Maureen Mahoney or Connie Callahan.

"A person who attempts to squander the opportunity of a lifetime to put his crony on the Supreme Court does not deserve any more such opportunities."

Did Reagan also not deserve 2 more appointments after the O'connor disaster?

Travis Hafner for SCOTUS

I agree that Stevens, Ginsberg, and Breyer are totally in league with the Democrats and would go on Schiavo-type life support machines until 2009 and beyond if necessary. But I don't think Souter is quite that way. He strikes me as quite idiosyncratic and a person who keeps his own counsel and maintains a sense of balance and independence. I don't get the impression that he makes his life decisions on the basis of marching orders from Ralph Neas, Chuch Schumer et al. He may not see furthering judicial activism and subverting the Constitution as the be-all and end-all of his life, as seems to be the case with the other three.

That's why he is our best and perhaps only hope for a vacancy this year.

To Bobo: Don't get me wrong. I would have preferred that Bush get four additional vacancies. It's just that he spurned the "SCOTUS vacancy gods" with his choice of Miers so it's only fitting that no more vacancies open up. That's what I mean by poetic justice.

To Zendari: Reagan's choice of O'Connor was a completely different case from Miers. He had promised to appoint the first woman to the Supreme Court, qualified choices were few, and she was probably one of the most qualified Republican lawyers out there. Also, O'Connor didn't get the nomination because she was Reagan's biggest kissup. Post O'Connor, Kennedy, and especially the Souter debacle of his father's administration, Miers' nomination was unforgivable.

Outsider, I think Souter has several reasons for wanting to remain on the court until Bush leaves office.

First, I think he is much more ideological than you believe. Remember, he too has read a "bitter" dissent from the bench this term. That makes him no different than the other liberal cry-babies, each of whom has now read out loud a "bitter" dissent from the bench this term. I really think that he has grown to love the precedents of his immediate predecessor, William Brennan, and would be loathe to see them overturned. Despite a love of New Hampshire in the fall, I think he loves the jurisprudence of the Warren Court more.

Second, I think he wants to spite all those conservatives who have used his name in vain in the past with cries of "no more Souters!" Just as Thomas has vowed never to change in order to spite all the liberals who crucified him DURING his confirmation hearings, I think Souter has vowed to himself to spite all those conservatives who have crucified him publicly AFTER his confirmation hearings. The best way to do this is to make sure that no conservative can replace him on the court.

Reagan made an utterly boneheaded promise, and an even more boneheaded solution by picking a female with his first pick (rather than, say, putting some women on the CCA in his first term for later), which had disastrous consequences for the nation.

Miers was Bush's attempt to comply with quota requirements from Specter, Leahy, and his wife, that nobody will talk about in the long run.

I dunno, the first seems a lot worse than the second.

no matter how much you want me to feel betrayed, I don't. Bush did not betray the base. period.

Oustider, I've come to think Souter, like our friend LMK, really hates Bush, and won't give him the opportunity to name his replacement. Stevens' clerk's testimony to the contrary, I don't get that sense as much from Stevens. So I've gone back to thinking Stevens is more likley again, but if he hasn't stepped down by this year, I think it means he'll stay until they carry out his cold body. I think Stevens probably doesn't care who replaces him, so he'll stay on indefinitely; Souter, on the other hand, cares only that Bush doesn't replace him, but otherwise doesn't care much which party gets the choice (since the next President will not be as conservative as Bush, regardless of party), and will skip town in 2009, unless health forces both Stevens and Ginsburg to step down that year.

Dienekes, I don't really care one way or the other if you feel betrayed or not. I expressed my opinion. I thought that's what comments were for?