ConfirmThem

By Marshall Manson Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

An anonymous commenter posted an interesting bit of analysis in one of the other threads that I thought I would promote. I must say that I do not agree with various portions. Most particularly, I do not think that Estrada is in the running. His previous pass through the confirmation ringer was (unfortunately) much too hard on him and his family. Other than that, I will let this analysis stand without further comment here.

We need to start our thinking with the ‘last round’, since in so doing we might be able to reconstruct the President’s thinking then, replicate it now, and more ably predict the pick:

This is what we know:

1) Last time around, the President was filling the O’Connor seat, with the prospect of Rehnquist’s retirement imminent. In other words: he knew that he would get a chance to replace a conservative white male (CWM) later. Roberts was clearly in consideration for Chief already then. Wilkinson and Luttig, among other CWMs, were also available for CJ. If ever, then, there
was a moment to go for a diversity pick -–woman, Hispanic, black–- this was it. The First Lady wanted him to name a woman. O’Connor wanted him to name a woman. Roberts could safely have been nominated for CJ later.

But Bush did not make that choice. He bowed not to diversity, but gave us a CWM. This suggests that Bush simply nominated the best person he met in the selection process. The women, then, were beaten, on quality, by Roberts (and possibly other men). There is no reason to think that Bush will approach matters differently now: experience, at least, suggests that he will pick a minority or a woman only if he believes that such person is better suited than the qualified CWMs also in the running.

2) We also know for sure that, in addition to Roberts, the President interviewed four people, two of those being Joy Clement and Harvie Wilkinson. We now hear from Erick that Joy Clement is out of the running, which seems plausible. Clement has no paper record whatsoever to suggest she is an originalist and her academic and other judicial credentials are not strikingly impressive.

Wilkinson was the only one who gave the press an account of his interview with the President. We also know from his interview with the New York Times that the President asked Wilkinson about his exercise habits (obvious question since he, at 61, was the oldest candidate under consideration) and that the President was dissatisfied with Wilkinson’s answer.

The other two have not spoken publicly about their interview. (Republican sources at the time indicated the other two interviewees were Michael Luttig and Edith Jones).

Bush, as every attentive reader of newspapers knows, is obsessed with maintaining secrecy, not leaking to the press, promoting personal loyalty to him etc. The surest way of killing off one’s chances at the 2nd nomination would be to blab to the media about your first interview without prior permission. This suggests to me that, like Joy Clement, Wilkinson was told by the White House that he was no longer being considered for future vacancies, most likely due to his age. That’s why Wilkinson felt free to
speak to the press about it. QED: Wilkinson is out of the running.

3) This leaves us with Michael Luttig and Edith Jones, plus any candidates that the President would not have to interviewed since he knows them so well. Of all the plausible candidates only Gonzales and Priscilla Owen (an old Rove/Texas contact–Bush used to socialize with Owen in her house) fit that bill, and probably also John Cornyn (TX) and Larry Thompson (former Deputy AG).

This leads us to the deduction that Emilio Garza, Samuel Alito, Michael McConnell and Miguel Estrada were not among the serious candidates the last time. (Janice Rogers Brown is obviously not a candidate; people who suggest this in earnest understand nothing of Washington DC. It's a miracle that she was ever nominated for the DC Circuit).

If we handicap those who clearly finished close to the top in the last round we see the following:

4) Edith Jones is a very outspoken conservative and has been publicly very critical of Roe v Wade. Despite her qualifications and gender, that makes her confirmation chances in the current political climate questionable.

5) According to Erick’s information, Luttig didn’t make a particularly favorable impression on the President in the first round, not due to his qualifications (they are extremely impressive), but due to his personality. (Although we have no other sources for this, it would explain why Luttig was passed over for Roberts twice already, first for the O'Connor seat, now for the CJ seat, despite Luttig’s much longer experience as a federal judge and generally extremely impressive credentials). But it was indicated to Erick that Luttig would be getting a second look now.

That exhausts the original five. Perhaps it’s true that Bush is expanding his list. If so, let's handicap the others, beginning with those who Bush knows well and might therefore have been competitive last time around without us knowing it:

6) Priscilla Owen does not have the stellar resume and academic achievement that have propelled Roberts. She could be seen as a Bush/TX crony, which the press won’t like and she was very controversial when nominated for the Fifth Circuit (and was only confirmed as part of the Filibuster Deal, which may cut both ways). It’s therefore unlikely she would be nominated despite her gender. It’s unclear what, other than age, favorably contrasts her with Edith Jones, who herself, as indicated, is probably too outspokenly conservative to be confirmed.

7) Larry Thompson is reportedly in the President’s favor. He is a friend of Clarence Thomas and his personal background would provide for a compelling story. His age (59), though, counts against him. As previous Deputy AG he would have to recuse himself from several cases of crucial importance to the Bush administration. He does not have any experience as a judge. His current job (General Counsel for Pepsi Co), although impressive, is the kind of corporate connection that doesn’t help. His resume doesn’t seem to set him apart from more obvious candidates.

Then those who certainly didn't make the short list last time:

8) Emilio Garza is a bachelor. Although Hispanic, Texan and a respected conservative federal judge, he is on the older side and has made it abundantly clear he would overturn Roe v Wade. This alone makes it virtually impossible to nominate him in the current climate, since it would probably make him unconfirmable or at least a probable victim of an attempted filibuster.

9) Michael McConnell gets very high marks for his academic credentials although his experience as a federal judge is limited. He would get substantial bipartisan support, paradoxically leading to suspicions among hard-core conservatives. Very extensive public record of writings to quote against him in hearings. McConnell criticized important aspects of Bush v. Gore. He has public opposition on record to Roe v. Wade. His academic persona probably doesn’t ‘jibe’ well with Bush. In combination with his dislike of Roe v. Wade, this makes it surprising for McConnell to emerge. Nonetheless, given his stellar credentials and bipartisan support, he is a dark horse not to be discounted.

10) Samuel Alito has been mentioned very little. Despite his obvious credentials, this is probably because he is the author of a widely noted dissent indicating his willingess to overturn Roe v Wade. In the bizarre world of Washington DC, you can think it but you can’t have said it publicly if you want to get confirmed.

11) Ignoring dark horse candidates like Senators Cornyn and Brownback and other outside possibilities, the only remaining plausible candidate is Miguel Estrada. He is young (44) and, because of the Democratic filibuster, has no judicial experience. But neither did William Rehnquist, Louis Brandeis, Lewis Powell, Earl Warren, Byron White, Robert Jackson, William Douglas, Felix Frankfurter, and Hugo Black when they were nominated to the Court. Estrada has a compelling immigrant’s story (although he didn’t come from a poor background), has impeccable and impressive academic credentials, is a regular practitioner before the Court (argued 15 cases), former Assistant to the Sollictor General, Kennedy clerk. And, despite his strong conservative views, no paper record to hurt him. Estrada was obviously being groomed by the Bush people for the Supreme Court when he was nominated for the DC Circuit, but, frustrated with the process, withdrew his nomination before the Filibuster Deal (which would have let him through). Given what happened before, Estrada is a risky choice, but there were sufficient Republican votes to confirm him for the DC Circuit and once on the Court he would be there forever. No wonder the Democrats filibustered him.

In sum: weighing everything, I think that the only woman who is seriously on the table is Edith Jones and her conservatism is so outspoken that it becomes very unlikely that she could be nominated. The nominee will most probably, therefore, not be a woman.

Among CWMs, Luttig is the obvious candidate (his background is in many ways very similar to Roberts, whose personal friend he is), with Cornyn and McConnell as dark horses.

Among 'minority males' I think that Estrada is, perhaps surprisingly, the best choice.

If Erick at RedState.org wouldn’t have reported that the President didn’t particularly like Luttig’s personality, I would bet Luttig would be the One. If the President is willing to be bold, Estrada would be an enticing and for conservatives most exciting choice. Cornyn might suddenly pop out of the box.

But, given all the negative arguments plausibly possible against so many nominees, there is a strong case to be made that Bush is tempted to fall back on Gonzales (despite conservative opposition it's unlikely that the Senate Democrats would seriously try to block him), so we must pray that Erick is correct in reporting that he has taken himself out of the running.

UPDATE: We have heard from the original poster, who wishes to remain anonymous, but wanted to provide a version edited for a few typos and mistakes. I have updated the original post to reflect those edits.