ConfirmThem

JCGreenburg hinted at this, but let's state it clearly: Had the Great Chief not hung on like grim death, O'Connor almost certainly would still be on the Court, stronger than ever at 76 & following the Nov. elections, and in no mood to go anywhere anytime soon.

And we might very well have the 62 year old moderate (albeit a seemingly principled one) Wilkinson as Chief (IIRC both Specter & Hatch would've been strong supporters for JHW for CJ in the Fall of '05).

Mr. O'Connor's health declined so rapidly that I'm pretty sure he was in the Phoenix care center by July '06, and Sandy certainly wasn't going to retire once that happened.

Whatever one ever thought of WHR and his motives for deciding to die in office, it's almost a certainty that Alito and prolly Roberts would not be on the Court today had he not made that decision.

It most likely was his own Smeagolness in wanting to enjoy the limited time he knew he had left, but it's possible he foresaw what could happen and took the appropriate steps, despite his very sincere 50+ years of friendship with the O'Connors. The Chief was a cagey ol' rascal indeed.

Speaking of Smeagol, I'm not sure this link got posted: http://tinyurl.com/2sx6tj

Don't get your hopes up for a Retirement anytime soon.

I have inside information (the info comes from inside my brain!) that there will be another retirement this summer. Stevens, Souter and Ginsburg will not all want to wait at least 2 years until they retire (they would not want to retire next summer with the presidential election in full swing), and some of them wait even longer than that to prevent two vacancies from occurring at the same time.

No, we will have one retirement this summer. If not, Stevens will retire (or die) in 2009, Ginsburg in 2010, and Souter in 2011. They won't want to wait that long. And I suspect Stevens will be inclined to retire under a GOP president but a Democratically controlled Senate (what a more perfect environment in his opinion).

Thanks for admitting where your "inside information" comes from.

Shouldn't someone post, "tick tock,. tick tock"?

that the reason why people have lost faith in the courts is because of all these folks running around complaining about 'activist judges.'"

Maybe this falls under the definition of activist judges, but I'd include among the reasons for our loss of faith judges who say they're ruling based on what some foreign court or government does, and also those who say that maybe their ruling should go away in 25 years.

BillM - I totally agree. For whatever reason, personal or politically strategic, we have Rehnquist to thank for getting O'Connor off the court as soon as we did. Once O'Connor's husband was past the point of her helping him, I definitely think she would've continued on as a justice well into her eighties. Then the whole dynamics of the situation would've changed, and we probably wouldn't have such solidly conservative justices as Roberts and Alito today.

skippy1 - I just can't see any of the liberals retiring under this president. All of them are politically motivated to stay until a Dem president can name a liberal replacement. They all know that their departure will give Bush II the opportunity to name a consistently conservative 5th vote to the Supreme Court, which would allow some of their most treasured precedents to be overturned or greatly curtailed. I don't think any of them are willing to allow the jurisprudence of the Warren Court to be discarded.

I don't believe any of the claims that Stevens feels some allegiance to the Republican Party. In fact, I think he despises it now. I agree with one of his former law clerks who said that he believes Stevens will never step down under Bush II because he believes that Bush is an illegitimate president who was first installed unconstitutionally by Bush v. Gore. Without Bush v. Gore, I'm sure Stevens also feels that Bush would never have been elected again in 2004 without the bully pulpit that Bush v. Gore had initially given him.

As far as Souter goes, I think he despises all the conservatives who have repeatedly cried, "No more Souters!" Just to spite them, I think he will continue as long as he can on the court until another liberal can replace him. Like Stevens, I think he despises the Republican Party right now, and this hate outweighs any dislike he may feel for life in Washington D.C. He will be willing to stay in a place he dislikes in order to have the final word over his conservative critics.

In addition, I think it is useless to think that either Ginsburg or Breyer, both Democrat Party loyalists, will retire under a Republican president. Ginsburg would rather be comatose in a hospital than have a Republican replace her.

Federal courts and judges would suffer less public criticism if they refused to adjudicate the controversial social issues of the day and left those issues up to Congress and the state legislatures to resolve.

O'Connor is over-reacting simply due to a personal fear that her own public reputation will be tarnished. Public outrage with judges and federal courts have been a mainstay of our legal culture since Dred Scott. What O'Connor doesn't like is public disapproval of HER opinions in Casey and Grutter. She views her decisions as conciliatory and reasonable, despite their lack of constitutional backing. She can't understand why she isn't more greatly appreciated as a wise judicial arbiter who has calmed the stormy waters of social unrest in the United States.

Actually, O'Connor's remarks on affirmative action aren't too bad for her. She reiterated that aa was meant to be temporary, and she acknowledged that is was quite legitimate for the states to prohibit it should they care to (this is an obvious fact, but some excitable liberals get angry and accuse you of being a racist when they're reminded).

I'm certainly glad that the fantastic Chief Justice did not pull a William Howard Taft (retired as Chief February 3, 1930; died March 8, 1930). Had Rehnquist acted as Taft did, SDO would probably have lasted until at least Summer, 2006 but probably Summer, 2007 or later. SDO was undoubtedly Reagan's biggest domestic mistake. Thank God she retired but I'm especially glad Sam Alito spot was not first taken by Harriet Miers. (No thanks to Bush or Hugh Hewitt.)

If Bush gets another appointment, there is no doubt in my mind that he will appoint a Souter/Stevens or certainly a AMK/SDO-like justice. There will be no Scalia, Thomas, Alito or Roberts. Bush wants Democrats to like him so he WILL appease their wishes to appoint a "moderate" justice. I think it's highly probable that we get a Reinhardt-like justice out of Bush if a third vacancy arises. I really don't believe Bush learned anything of note regarding Miers, unfortunately. I don't trust Bush one iota and if you're a true conservative you wouldn't trust Bush either.

saying Bush will give us a Reinhardt may be the most idiotic. I award you no points, may God have mercy on your soul, etc, etc.

request for moderators: is an "ignore user" option a remote possibility?

The upcoming Judiciary Committee Hearing scheduled for Wednesday has the unsavory aroma of a District Judge-only hearing. Three reasons:

1. Schumer is chairing. Leahy would almost certainly be there for a major event like the first Circuit hearing of the year.

2. Dems are unlikely to hold a Circuit hearing so "soon", the first week back from recess. Now they can delay Livingston or Keisler (remotely possible) until the end of the month. Touche, and so much for the "April Confirmation".

3. Less than 36 hours before the hearing is scheduled, the nominees appearing have not yet been named. This indicates some kind of unpleasant trickery is afoot.

Hope I'm wrong but doubt it. Such is life with a Democrat Senate. Thanks a lot, Maccacca.

I would imagine that the nominees are already decide and have been for some time that will be at that hearing. I have a feeling though that the website has not been updated being that the Senate was on a long break for Easter. My bet is that by sometime tuesday (the senate is back in session tomorrow, right?) the website will be updated and reveal the names that were decided before break. Leahy just wants to frustrated us over here who obsess over this stuff. :)

While you may be right about the outcome, the website was updated Monday with the executive meeting details, I believe.

Signature disclaimer: I'm not currently paid by any campaign, but I am available. Current preferences for President: 1) F.Thompson; 2) Romney; 3) McCain; 4) Gingrich; Guiliani removed 04/03/07

The nominees for tomorrow's SJC hearing were just posted, and Ms. Livingston is getting a hearing for the 2d Circuit, along with three District Court nominees - 2 NY and one IN.

http://judiciary.senate.gov/hearing.cfm?id=2680

Here are the people getting hearing tomorrow:

Debra Ann Livingston to be U.S. Circuit Judge
for the Second Circuit

Roslynn Renee Mauskopf to be U.S. District Judge
for the Eastern District of New York

Richard Joseph Sullivan to be U.S. District Judge
for the Southern District of New York

Joseph S. Van Bokkelen to be U.S. District Judge
for the Northern District of Indiana

This looks like the Dems will try to block Keisler this month and offer Livingston to the Republicans instead. Also it looks like Donohue is out as a New York district court judge.

Here's the link for the hearing info:

http://judiciary.senate.gov/hearing.cfm?id=2680

I think we're overlapping each other again.

I smell a battle brewing between Reid and McConnell over Keisler. Karen Strassel in her Friday WSJ opinion piece said:

"The big test will be Peter Keisler, up for the D.C. Circuit Court of Appeals. He's possible Supreme Court material, which might explain why his nomination is one of the longest-pending of current nominees. Republicans are pushing to make his confirmation next, and if they fail, it'll be a good sign Democrats intend to slow-walk the most important appointments."

http://www.opinionjournal.com/columnists/kstrasselpw/?id=110009904

I take it from her comments that McConnell and the Republicans will try to force through Keisler's confirmation this month. The Dems know this and instead are offering up Livingston in order to appear reasonable. Expect some fireworks this month. I hope McConnell gets both Keisler and Livingston done this month. That would be a nice coup amid the disaster of Iraq.

I hope McConnell gets both Keisler and Livingston done this month.

Given that Leahy has said one per month, and given that we can assume that figure indicates the maximum he's willing to abide, then the chances of both getting approved in April appear to be zero.

from ruling on controversial social issues when possible. But it would help if Congress exercised its authority to strip the lower fed courts of jurisdiction to hear cases involving, say, abortion and marriage/civil unions.

McConnell can file a discharge petition to have Keisler released from committee and given an immediate vote in the full Senate. The question is whether he would threaten to do this at the moment. A lot depends on which legislation the Democrats want passed in the next several months. A mere threat of forcing cloture on a piece of desired Democrat legislation might be enough to cause Reid to capitulate on Keisler, especially if the legislation Reid wants passed involves the Iraq troop withdrawal timeline. It all depends on how much courage McConnell has. The ball is in his court at the moment. The longer he allows the Dems to stall on Keisler, the much sooner it will be that the Dems will shut down the entire judicial confirmation process.

To get both Keisler and Livingston confirmed this month, the best way for McConnell to proceed is to allow Livingston to be processed first in the normal way - hearing, committee vote, floor vote. After the Dems have told him that they will not process Keisler this month, McConnell should allow the Dems to think that everything is fine and dandy until the last moment. AFTER Livingston has been confirmed, then McConnell should strike and file his discharge petition, giving the Dems little time to react and come up with more obstacles.

Get Livingston confirmed - and possibly the 6th Circuit nominees, too. Keep the low-hanging fruit coming, and then thorw a hissy fit to get Keisler confirmed.

Don't get hysterical on us. You think that Dubya's Supreme Court nominees would be 1. Roberts, 2. Alito, and 3. REINHARDT!? LOL

I am pretty sure that you're being facetious. You're right that it's very possible that it won't be a steller justice, but it wouldn't be a slam dunk liberal, either. As long as we are vigilant, there will be "no more Souters."

We could possibly get stuck with Maureen Mahoney, however. Mahoney might surprise us - she is, after all, a Reagan Justice Dept. alum and former Rehnquist clerk who gave quite a bit of money to George Allen's failed re-election campaign - but I doubt it. On one hand, Mahoney is a brilliant expert appellate advocate. Her client in Grutter was the University of Michigan, and she did what it took to win the case. I guess the question is, ultimately, did she play O'Connor? If she did, and view it that way, this would almost suggest to me that she doesn't respect her. Her arguments were tailored to win - by swinging O'Connor her way with arguments that O'Connor has shown a proclivity to be sympathetic to. She might be a strict constructionist heavyweight who takes pride in not allowing appellate lawyers to "play" her the way she played O'Connor. But the fact remains that Mahoney said that she was "comfortable" with the decision. That's kind of bad news. And it is also likely that, as an appellate advocate who lived in precedent with little record as a person with a strong constitutional philosophy - that stability and precedent might carry more influence with her than getting the law right. She might not be a part of any MORE Roes or Kelos, but she might not seek to overturn them, either.

Given how the case has tanked her standing with conservatives, one wonders if she regrets taking the case. I honestly very much wish that Paul Clement would have declined the Justice Dept. investigation. It's become so politicized that I think that any involvement on his part just makes it that much more difficult to place him on the court.

I hate to sound sexist here, but in general, women tend to gravitate towards stability more so than men do. Janice Rogers Brown, Edith Jones, and I believe Allison Eid to be notable exceptions in the law.

ALL OF THAT SAID, I don't expect Dubya to get another nomination unless it is for Scalia or Kennedy, or unless Stevens's health sharply and precepitously declines. I doubt it will be Kennedy, and I hope Scalia holds on for another decade, at least. I also think that Stevens's health will not be an issue - and good for him being an active and healthy senior. I just wish he would go spend all of that energy in Florida full-time so we can get a rock star conservative justice on the court to replace him. LOL

Fun article from USA Today:

WASHINGTON — They sit side by side on the Supreme Court's mahogany bench, and much of the time they seem to be working from the same playbook.
Chief Justice John Roberts and Justice Antonin Scalia share conservative views on the law, and in Roberts' second term on the court he appears to have formed a bond with Scalia that involves not just substance, but also style.

http://www.usatoday.com/news/washington/2007-04-09-roberts-scalia_N.htm

The moderate Republican establishment is frightened to the point of involuntarily voiding their colons over the possibility that Roe is overturned.

The only way a Luttig will even be considered is if the establishment calculates that "settled-law" Roberts, or the spouse of its-my-party-too Mrs Alito will vote to uphold Roe.

The establishment's number one priority will be to
"stealthfully" sneak a pro-choice judge onto the Court.

You can't have your cake and eat it too; and you can't be a little bit pregnant. You can't appoint a judge who both holds a principled conviction that the Court is not a super legislative body, while, simultaneously, intending to support what is possibily the most egregious act of judicial activism.

When the establish selects an activist judge on abortion, it will be selecting a judge who adheres to the principle that judicial activism is acceptable.

The reason Souter was appoint is because Bush Snr wanted to go the "little bit pregnant" route. I remember that during the Bush Snr adminstration the establishment boasting that it had gained control of the Courts, and that, henceforth, it needed only to appoint "eighty-percenters." [The 20% including upholding Roe.]

Well, that "80%" soon shrunk to 0%, and that "20%" grew to "100%."

Could you image a Robert Bork, or a Michael Luttig so badly underperforming expectations?

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand uncompromising, principled, and effective conservative leadership.

I think you are confusing two separate variables in the confirmation of any Supreme Court justice: jurisprudence and confirmability. I think that Reagan intended to nominate strict constructionist judges but ended up choosing Kennedy after Bork due to confirmability problems. I think Bush I also tried to pick a judge with a conservative jurisprudence. Unfortunately, though, he thought the only way to get someone like that confirmed was by choosing someone with a track record that couldn't be dissected by the Dems. That was the situation, not that he was maliciously trying to find a moderate-in-disguise with whom he could trick conservatives.

The situation with Bork proves that not only must a president choose a nominee with the correct jurisprudence, he must also choose a nominee who doesn't rub Democrats in the Senate too much of the wrong way. The only reason that both Roberts and Alito were eventually confirmed is because the Dems didn't have enough votes to openly defeat them on the full Senate floor.

If you want a Luttig, you not only must have a president who will nominate a person like that, but also you must have a Senate that will confirm him. The 109th Senate with a 55-45 Republican majority was a perfect vehicle for doing that. The 110th Senate with a 51-49 Democrat majority will not acquiesce to a Luttig, that is why Bush II will have to nominate someone who is more moderate than Roberts and Alito. It is not a matter of Bush II not wanting a known conservative anymore.

I agree that Bush I didn't intentionally give us Souter's jurisprudence. He just didn't know who to trust. The two liberal New Hampshire senators were NOT the people to trust. He should have gone with the homestate selection in Edith Jones. If Bush I's Supreme Court nominations were Clarence Thomas and Edith Jones, we would be debating who was the best president as far as supreme court nominations today - Bush I or Dubya.

I disagree however that Dubya would have to nominate someone "more moderate" than Roberts and Alito. That nominee, however, would have to be exceptional in other areas as well - especially those that would make the justice more marketable, if you will.

Someone who, while his/her intelligence is apparent to all, is still considered to be a likeable, nice, and good person. Diversity is another avenue that could be used to get a nominee on the court because it would look bad for Democrats to vote against a "first ever" given their political philosophy that diversity counts more than capability in other areas of government service and employment.

I think that Janice Rogers Brown meets this criteria to a tee. Thomas clerks Allison Eid (42), John Yoo (40), and Rehnquist clerk Ted Cruz (38) would all meet this criteria quite easily. Kimberly Ann Moore and Diane Sykes, too, and while not "diversity" picks, Michael McConnell, Paul Clement, and Peter Keisler would appear to meet other criteria as well. Neil Gorsuch might also.

Although Cruz would need a few more years of seasoning, I think that a 40 or 42-year-old could be confirmed as an Associate Justice. I think that the "he's not being nominated for chief justice" straw man could be used effectively.

Dubya won't get another nomination, I believe, but if he did, he would have lots of possibilities.

Given that some of our best prospects are still kind of young, it might not be too bad if the next nomination didn't come for a few more years so that Allison Eid, John Yoo, Ted Cruz, Paul Clement, Neil Gorsuch, and Peter Keisler can all get some more seasoning on.

The best selection right now would probably be Janice Rogers Brown or Michael McConnell, but I'm afraid that JRB's time horizon will have passed as she ages past 60 in the next GOP administration and Michael McConnell was born a white male - which unfortunately imperils his nomination.

THANKS FOR THE ARTICLE!!!! It was a DELIGHTFUL read!

BS Bob - it is recommended reading for you, in particular.

B/c this process is so dynamic, what are your current thoughts on the following:

1)It seems likely to me that Elrod and Southwick will get confirmed (CA 5 is solidly conservative anyway, and neither individual is "too conservative" [see e.g., wallace, boyle]. So I put the CA5 duo at 80%. In contrast, I put Kethledge at 50% b/c the CA6 is equally comprised of dem and repub judges. thoughts?

2)CA5 duo (Elrod and Southwick) or Kethledge--who gets confirmed first (if they all get confirmed)?

I think both Southwick and Elrod get confirmed before Kethledge or Murphy, if those two Michigan nominees can ever get confirmed.

First, Texas and Mississippi both have two Republican senators who support the nominees from their respective states. The Dems know neither group of senators will blue-slip a Bush-nominated judicial candidate, and all four senators will balk and scream if the Dems try to stop Southwick and Elrod.

Second, the Dems already know that for the time being the 5th Circuit has a majority of conservative judges, and that situation won't change anytime soon. It would take a ridiculously high number of judges taking senior status to turn the 5th Circuit liberal. The Dems aren't going to waste their political capital trying to turn the 5th Circuit under such circumstances unless there is something really annoying about one of the nominees. Neither Southwick or Elrod at this point seems to have the prerequisite annoyance factor to warrant blocking them.

However, the 6th Circuit is a totally different story. Since Michigan has two Democrat senators, the Dems know they can easily block Kethledge and Murphy with impunity because Levin and Stabenow can blue-slip them and no Republican senator is going to say they don't have a right to. In addition, the Dems know that by blocking Kethledge and Murphy they can easily keep the 6th Circuit liberal for years to come.

It is all a matter of ease and convenient. It would be easy and convenient to allow the 5th Circuit to remain conservative as well as easy and convenient to keep the 6th Circuit liberal.

When all of the low-hanging fruit is gotten through the judiciary committee, Dubya should find a crop of heavyweight legal professionals who can be recess appointed through January 2009 without substantially interrupting their careers (like, perhaps some who are near the end of their careers.) If Kethledge and Murphey still haven't been confirmed by the time that the next Republican president takes office in 2009, then ?Kethledge and Murphey should be recess appointed at the first available instance - so they can serve on the court for the 2 years until they are voted either up or down for their seats.

Thank you

Strassel in the WSJ is right, the most important are Keisler because he's SCOTUS material and Kethledge and Murphy because they're on a major circuit (which contains large swing states MI and OH) which is currently in the balance.

Get them confirmed as soon as possible.

The 4th circuit is endangered, but it will merely turn from being on the forefront of the conservative movement to a mediocre right of center court. This is a loss to be sure, but it's hardly about to become the 9th circuit, and having a hub of intellectual movement conservative thought on the lower courts is less important given the new configuration of SCOTUS.

Perhaps it's best that Keisler isn't on the DC Circuit for the en banc review of Parker v. District of Columbia. I think we can be pretty confident how he would rule, but it is probably going to be controversial, nonetheless, to the liberals on the SJC should he ever have to face them again for Supreme Court confirmation hearings.

So, perhaps it is a blessing in disguise that he's not on the court yet...as long as we get him on there after Parker has been affirmed by the full circuit and is well on its way to the Supreme Court. :-)

I agree that the Dems will want to hold up the 6th Circuit nominees. Kethledge and Murphy would represent the 7th and 8th Bush picks. That is in addition to Boggs and Batchelder. With 16 approved seats, that would be a 10-6 split for now, depending on the Senior Status plans of Boggs and Batchelder. Even if they would retire or go Senior, we would still have at least an 8-8 split. I'm just hoping that a deal was made (along with editorial page pressures) that will allow at least one pick through.

While there are a number of liberals on that court, should it be considered a liberal court? It currently has an 8-6 R to D split (an imperfect proxy, but useful for discussion).

1) Eisenhower, Nixon, Ford, Bush I, Dole, and Bush II were moderate establishment candidates. Goldwater and Reagan weren't. I'm not arguing that Reagan attempted to put a moderate on the Court, Bush I did with Souter, and Bush II did with Meiers.

2) Bork lost a PR battle that the Republicans weren't prepared to fight. The lesson of Bork was that conservatives must oppose liberals effective, not capitulate to their demands. Souter is the product of that strategy.

3) Whether, or not, Luttig could be confirmed is purely conjecture. The points are that it is a battle worth fighting; and it is a battle that Bush II would prefer to lose.

That is pathetic.

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand uncompromising conservative action from principled, uncompromising conservative leadership.

Active Judges:

Democrats - Martin, Daughtrey, Moore, Cole, Clay, Gilman

Republicans - Boggs, Batchelder, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin

With the addition of two more liberal judges, liberals can feel certain that the 6th Circuit's many liberal precedents will remain intact. It is important to remember that the 6th Circuit has long held the reputation of being the most liberal court of appeals after the Ninth Circuit. Because of a court of appeals' three panel method of deciding cases, it will take awhile even with a 10-6 Republican majority to get rid of all those liberal precedents. It will be almost impossible for the present 8-6 divide to erase a great many of the precedents that need to be ditched on that circuit. That is why I still consider the 6th to be a liberal circuit.

MACC - As far as O'Connor saying AffAct is only "temporary", didn't she also fall at first for the ol' chestnut that medical advances would eventually push fetal viability to the point where Roe's trimester approach would be only temporary, thus there was no need to call for it's overturning in cases like Thornburgh?

Only when it became apparent that that wasn't going to happen did she create the ludicrous undue burden idea.

No less a liberal than Dahlia concedes that many of O'Connor's rulings may be overturned due to all her many 'personalized' tests & criterion, and deservedly so.

It's common knowledge on the SCOTUS Bar that you had to tailor arguments to appeal to SDO's (and now AMK's; imagine it being JRB's!) quirks & vanities. This was touched on in the Mahoney post above.

The sad fact is that O'Connor missed her true calling and likely would've been more conservative and effective as governor or senator, and even POTUS would've been a possibility for her after 3 or 4 terms.

As for her endless whining about respecting the Judiciary, agreed that it's HER adjucations she wants respected. If a hard-bitten ol' country girl/close Rehnquist friend like Sandy could get warped so badly by DC, what chance does someone like EJClement or Sykes have?

And if she's REALLY concerned about the Judiciary, why isn't she filling in on back-logged courts around the country, the way Justice Powell did? I just thought of that last night, and if I were a prominent person I'd be blasting her out of the water with it. Someone with connections please start running with this idea.

I will give SDO credit for one thing, tho. I have absolutely no doubt she deeply regrets retiring, and would not do it again even if her husband's health had remained stable. I bet a lot of her squawking lately has been to keep her name in the headlines (you can gives up the Precious, but it may not gives up you so easily). She may even in retrospect question the Chief's motives.

But I also highly doubt she would ever voice regret publicly or even privately. It would go against everything known about her personality and history to do so, and not to have moved on mentally & emotionally.

But then again, nothing would surprise me at this point. Let's wait and see what kind of 5-4 busing, AffAct, and abortion decisions come down in the next few years (and Kennedy may will be the perfect albeit unwitting accomplice in various hollowing-out strategies, so long as JGR can get Nino to quietly play along), and see how she reacts.

I certainly appreciate the value of properly evaluated jurisprudence in the selection of new members of the Supreme Court. I just disagree that Bush I on purpose put the liberal Souter on the court. I think Bush simply misread the consequences of the Bork fiasco. I think he wanted a real conservative, but erroneously thought that to achieve that goal he needed to nominate a stealth candidate. The lesson that should've been learned from Souter's nomination is that stealth is a bad policy because it allows "squishy" candidates with unformed jurisprudence on the court. As I have said before, I do not think Bush I was on purpose trying to screw over conservatives.

I do agree with you that Bush II fell into the same stealth trap as his father when he nominated Miers to replace O'Connor. I do not, however, again think that it was done maliciously to thwart conservatives. He erroneously thought he could easily sneak a conservative onto the court without too much Dem opposition. I think he learned a lesson with the outrage against Miers. Conservatives wanted a known quantity, not one of Bush's friends with no track record. I don't think he will nominate someone with no real legal credentials again.

I do think, however, that he will have to deal with the confirmability problem. As I have said before, if he willy-nilly nominates some movement conservative like Luttig, he could easily give the Dems' perfect grounds for delaying the nomination indefinitely until a Dem president in 2009 can nominate a liberal as replacement. That is what happened when Lyndon Johnson nominated the poorly-chosen Abe Fortas in 1968. He lost a big chance to maintain the liberal swing of the Supreme Court. Some may doubt the conservatism of the Burger and Rehnquist courts, but it would've been much worse if there had been a Fortas court.

Good points on the 6th.

Since the Dems will have to let some judges through, I agree that the 5th Circuit nominations are a pretty good bet when you look at their other options. However, its interesting that a Circuit that had a 13-4 split last year could get close if the Dems got greedy or if there was a Supreme vacancy that gave the Dems cover for delaying more nominations (although I would make that trade). The 5th currently has 3 vacancies and three more Repub appointments that are 70 or over. If they hold two of those vacancies open, it could be split 9D-8R in a few years.

Since we have a limited number of confirmations, I just hope that we don't waste any on the 1st Circuit Rhode Island seat or the 9th Circuit California seat(s?). We can't get a real conservative past the home state senators and the 9th is too far gone without another 8 years - at least. Focus on the 3rd, 4th, 5th and 6th.

Dubya may well be willing to fight that battle with JRB, or at least start it. Unfortunately, he knows little strategically and tactically, on any topic, beyond "Go with you first gut reaction/trust me/I know their heart/I'm the decider", as has been sadly proven time and again.

And there are 1000's of public & semi-public figures who would go all out for her, along with millions who would fall in love with her once they got to know her, and millions more who would not tolerate a lynching on GP, whatever there feelings for her viz. SCOTUS.

The real question is the 49 R-Senators who are terrified of their own shadows, and couple dozen WH staffers who could be out & out saboteurs.

As disgusted by the Miers pick as I was at that time, I am now somewhat happy that it happened. The manner in which the base reacted should give any Republican president pause before he/she nominates another Souter. The current political situation may mean another Kennedy or SDO, but I don't think Bush or any other Repub would pull another Souter.

Things would've been much worse had it been a BAZELON Court. Fortas was never going to make it to CJ, and if LBJ hadn't been such a corrupt, arrogant drunk, he never would've forced Goldberg out to begin with.

Fascinating alternate history to ponder. Let's say the Court in '72 is Bazelon-CJ, WDO, WJB, BRW, PS, TM, Goldberg, Burger & Haynsworth(for Black & Harlan).

Then assume JPS replaces WDO in '75 & SDO for PS in '81, and that Burger retires in '86 and is replaced by Bork or Scalia, which all still appear likely to have happened.

Bazelon - b 1909, r 1986, d 1993
Goldberg - b 1908, d 1990
Haynsworth - b 1912, r/d 1989

We likely never hear of WHR, but also not of HAB, either.

Who knows how a Bazelon Court rules, or how elections are affected by such rulings? And if Bazelon was forced to retire for health reasons in '86 (why else would he retire under Dutch, 77 or no?), we prolly get BOTH Bork & Scalia.

And with two more Vacancies, assuming Goldberg & Haynsworth die on the Bench, Poppy may well have gone for Jones & Starr or Easterbrook.

How 'bout that *BORK* Court come Spring '07??!!!

Bork-CJ
JPS
SDO (possible JGR is here!)
Scalia
Souter
Thomas
Jones
Easterbrook
RBG

No Blackmun means no Breyer!

I think its entirely possible that there will be no confirmation to the 6th circuit court of appeals at all during Bush's last 2 years, though I think I am probably more optimistic than BoBo is (my thinking being that since Bush renominated them at all, when he didn't Boyle, Haynes, Myers, and Wallace, there's at least a chance).

Either way though, I fully expect Southwick and Elrod to be confirmed well before Kethledge and Murphy, perhaps as early as June or July.

I did not say Bush I tried to put a liberal on the court, intentionally. I stated that Bush I tried to put a pro-choice moderate, an "eighty-percenter," on the Court. It was the pro-life movement that he wanted to, and did, betray. In doing so, it backfired only to the extent that the nomination also betrayed the moderate establishment. If Souter had been another O'Conner or Kennedy, Bush I, in my estimation, would have been more than satisified with the result.

You may claim that Bush I really wanted to appoint a conservative, but that contradicts the actual statements of Bush I. First, when his pro-choice nominee voted to affirm Roe vs. Wade in Casey, Bush I publically, and vocally praised the decision. When asked about his appointment of Souter, Bush I stated that it was proof that he was falsely maligned as some sort of rabid idealogue trying to stack the Court.

Are you denying the "eighty-percenter" comment was actually made? That Bush praised Casey? Or that Bush I used Souter's appointment to defend his record as President?

As to your comments about the consequences of nominating Luttig:

1) The notion all nominees are dead isn't particularly sound, since it doesn't, logically follow; and

2) If Luttig is filibustered, it makes the appointment of qualified conservative nominees an issue. If conservatives run on that issue, and win, Luttig is confirmed in 2009, and the Courts take a permanent turn to the right. If conservatives lose that fight. The Courts remain liberal.

If conservatives shirk that fight, something they don't want to do, but their treasonous moderate-in-conservative-clothing President might do on their behalf, [comprehensive immigration reform, anyone?] the liberal status quo will remain, forever.

Sure, I'm risking Homosexual marriage being a Constitutional right by 2010 rather than 2020, but 2020 will happen in fourteen years!

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives accept leadership from true conservatives exclusively.

Re: 23

First off, I didn't say Reinhardt, per se, I said Bush would give us a Reinhardt-like Justice. And there is NO doubt in my mind that Souter is a Reinhardt-like Justice. Bush wanted to shove Miers down our throats when there were 55 GOP Senators and all but one (Chafee) would support a principled conservative. Miers would have developed into a Souter I think after Bush left office and would have been an AMK/SDO-like Justice until Bush left. She wouldn't have been a Scalia or Thomas-that's for sure. Miers wanted everyone to like her, just like Bush wants to be liked. She would have voted like a complete liberal just to be liked by the MSM and other Washington-insiders. We're lucky we have Roberts-Alito instead of Roberts-Miers; if Miers were better qualified she would have gotten conservative support (at least from GOP Senators), and would be sitting on the Court today.

Bush gave Democrats McCain-Feingold (after he vowed its unconstitutionality), has spent like a drunk (only started caring about pork in January, 2007), expanded welfare state (Medicare prescription drug coverage), tried to give them Miers (after she was reccommended by Harry Reid), gave them Rumsfeld and replaced him with Gates, and will give illegal aliens blanket amnesty follow shortly thereafter by citizenship. Bush will capitulate to the Democratic wishes and give them a liberal woman if another Court appointment arises. I will be very surprised if Bush does NOT give us a Souter-like candidate if he gets another appointment. (There is NO DIFFERENCE between Souter and Reinhardt.)

As my dad said, Bush was elected twice, he doesn't give a damn about the future of the GOP. In fact, he has done everything he can to undermine the conservative movement. If you haven't figured out that Bush isn't a conservative by now, then I feel sorry for you.

You can't paint Dubya with such a broad brush. The fact of the matter is that Dubya doesn't have a broad, overarching political philosophy - just like O'Connor and Kennedy didn't/don't have an overarching judicial philosophy.

As such, Dubya is solid and consistant on some matters and soft on others.

The judiciary is one area that Dubya has been excellent, however. Yes, Miers was a mistake. But he really thought, and still thinks, that Harriet would have been the type of justice that would "vote the right way" on the court. Harriet Miers was one of Sam Alito's biggest champsions, and I think that she really WANTED to be the type of justice that we wanted on the court. The fact remains, however, that she was simply incapable of being that justice - not matter how much anyone wanted her to be.

But forgive and don't forget. Dubya made up for the mistake, and I see absolutely no signs that Dubya is any less committed to reforming the judiciary than he has ever been. He's given us many steller judges, two outstanding justices, and so far one of the biggest things he's done is NOT SUCCESSFULLY made any big mistakes as far as nominations to the circuit courts go.

When Miers was nominated, and the nomination drew fire, the adminstration responded to critics who believed that appointing Miers was a breach of Bush's promise to appoint judges "in the mold of Thomas and Scalia," by claiming that Bush had never made that promise!

Turns out Kerry merely infered this was Bush's position--a no-brainer inference btw-- and confronted Bush with this inference in a debate.

Bush did answer Kerry in a manor that indicated that Kerry had in fact infer his position, correctly.

According to the Bush adminstration, Kerry, the media, and the entire conservative movement had jumped to false conclusion!

Well, the fact were now complete. Bush's own position is that he is not committed to appointing judges "in the mold of Scalia and Thomas," and the appointment of Harriot "Harry" Miers was evidence of that fact.

The truth is also that the Bush had "lead on" the conservative movement.

Those are the facts.

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand real conservatives as their leaders.

I shan't any longer listen to another word of your idiotic blather. if you're more interested in attacking Bush than in getting his judges confirmed, you are in the wrong place. buh bye now.

I am solely interested in appointing conservative judges. To the extent that Bush nominates conservatives, I support those judges. To the extent he appoints the likes of Harriot "Harry" Miers, I oppose those judges. I am more interested in conservatives, eventually, winning the intellectual and political debate than I am in the ephemerial political fortunes of George Walker Bush, son of George Herbert Walker Bush.

My central contention is that conservatives are losing the cultural war precisely because they are being lead by moderates who are intentionally losing the fight on their behalf. I am calling it as I see it.

Is it truly the case that those who want to see Roe reversed, and homosexual marriage never litigated, are not really welcome here?

If that isn't proof of my contention, what is?

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand conservative action from conservative leadership.