ConfirmThem

I'll start it with a question. What do you make of Obama's anticipated nominee for Attorney General? His background and character certainly will have a role (along with his philosophical views on the judiciary) in what kind of people are selected as judges and (I hope not) justices.

This is just insane. Listen to what Roll Call is saying:

http://www.rollcall.com/issues/54_60/news/30380-1.html

"Senate Republicans will not stand in the way of nominations made by President-elect Barack Obama, despite the bruising campaign and the prospect that they will have severe ideological differences with the picks, according to senior GOP lawmakers and their aides."

Let me get this right - after all the Democrats did to block Bush nominees like Miguel Estrada, Carolyn Kuhl, Peter Keisler, Steve Matthews, Rod Rosenstein, etc., the Republicans are going to let Obama have carte blanche with his judicial nominees?

If this is the case, then I hope the Republicans don't mind the likes of Teresa Roseborough and Harold Koh. After all, every circuit will get at least two similarly ultraliberal partisan nominees if those two are allowed to be confirmed with no Republican opposition. This truly sickens me.

NEITHER MCCONNELL NOR SPECTER HAVE ANY BACKBONE!!!!!

But I get the drift. They just don't get it, and apparently never will. Specter of course left the reservation long ago, but McConnell like Frist just baffles me. How can you be a Senate party leader and have absolutely know idea about ANYTHING regarding the federal Judiciary?

It's like ostriches trying to raise eagles. The forty year history is just astounding, no matter how many times you go over it, starting with the Dems having had only two SCOTUS picks over this period.

Only rational explanation is that they LIKE being in a helpless minority caucus, so they can trudge around their home states every six years, shaking their heads about "activist judges" while holding their hand out.

It's like they've completely given up now that they know the media spotlight on landing plush lobbyist & corporate gigs will be so harsh, if there are even such things left once this meltdown is through.

Pathetic. I mean, if you're going to commit suicide at least go out with a bang.

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

and filibuster further government control of healthcare, restrictions on Second Amendment rights, amnesty for illegal aliens, tax increases, restrictions on free speech ("fairness doctrine"), etc.

If they don't, I'll be withdrawing my vote and financial support from the GOP at the federal level. The Constitution Party (or the Libertarian Party) look better all the time.

as needed to filibuster. Go Saxby!!!

This may not be a popular post here (but my bona fides are pretty well known to those who read this site and the threads), but I do believe ANY president should have his or her nominees (judicial, cabinet, what have you) have an up or down vote on the Senate floor.

By all means, this site should closely scrutinize the higher level judicial appointees, pointing out whatever needs to be known--even expressing opposition. Elections do mean things and--with at least 58 Dems in the Senate--it's pretty hard to imagine any nominee (short of beign found in flagrenti delicti [sp?]) not being confirmed.

Does the possibility of one or more RINOS voting to end a filibuster steam me? Of course. But I do give McConnell some slack because with the limited cards he's been dealt, he'll need to pick his battles very carefully--on the judicial and other fronts. At least until the tide turns for whatever reason(s).

which senators are up for re-election in 2010? I'm pretty sure there will be some GOP pick ups, but I'm interested in which states those might be. There might be a Byrd special election before then.

First, we're almost guaranteed to pick up seats given the off year status of the election:

Anyway, we've got:

Lincoln - AK
Boxer - CA
Salazar - CO
Dodd - CT
vacant - DE
Inouye - HI
vacant - IL
Bayh - IN
Mikulski - MD
Schumer - NY
Dorgan - ND
Wyden - OR
Leahy - VT
Murray - WA
Feingold - WI

2 vacant seats, Inouye is probably retiring. Only a few unbeatables on that list from deep blue states.

Harry Reid - NV.

Daschle 2.0?

Reid is very beatable. Hopefully a few others will be, too. And will WV be "open" in 10, too?

What are the latest updates from Minnesota (Franken vs. Coleman)?

http://bench.nationalreview.com/post/?q=MzJlNDI1NWQ0ZDYyZmYwYzBlOWU1OTc3...

"In an Obama administration, the composition of the ABA’s Standing Committee on the Federal Judiciary, which rates federal judicial nominees, hardly matters, as the ABA committee will rubber-stamp nearly all Obama nominees. Still, it’s striking that the current chair of the ABA’s committee is none other than Kim J. Askew, who led the investigation, and wrote the report, that resulted in the ABA’s thoroughly scandalous “not qualified” rating of President Bush’s 2006 nomination of Michael B. Wallace to the Fifth Circuit."

http://bench.nationalreview.com/post/?q=MmQ3MTQ5ODRiNmJjN2ZkZDJkMDgwMjk2...

"President-elect Barack Obama’s ability to transform the courts by appointing liberal judicial activists would be enhanced by enactment of a federal judgeships bill that would create 14 new court of appeals judgeships and 52 new district judgeships. Senate Judiciary Committee chairman Pat Leahy introduced a bill, S. 2774 (available here), to do exactly that last March, and the bill, now pending on the Senate floor, has a number of Republican cosponsors. The bill largely mirrors the judgeship recommendations made in March 2007 by the Judicial Conference of the United States, but need one be cynical to suspect that the one-year delay between the Judicial Conference’s recommendations and the introduction of S. 2774 was designed to ensure that President Bush would not fill any of the new judgeships?"

As of a Fri. update Powerline says 64% of the votes have been recounted and Coleman's up by 120. It says there are increasing challenges from both sides, with dueling press conferences. Though I did see something (on Sat.) that seemed to indicate both sides are going to stop making challenges.

Nothing at Powerline on Sat. or Sun. Perhaps the recount suspends during the weekend.

This from an angry lefty (maybe there is some hope!)--

60 Votes with Lieberthug is meaningless!
60 votes is meaningless anyway because you can almost never count on herding every cat in one direction. There will be a LOT of undermining, cutting deals with Republicans and generally abandoning principles.

You'd need about 70 Democratic senators to have a realistic chance of a progressive majority to pass things like major pro-labor legislation or to really demand progressive trade reform.

You only need about 55 or 56 for the stimulus package on the other hand because some Republicans will vote for that.

And so on. I would expect at least 10 defections (counting both sides) on almost any major policy initiative.

More, when it comes to Iraq where Democrats are such pathetic losers.

Generally, more is better, but Martin is certainly NOT going to be a wildly progressive voice in the Senate if he's elected. There are lots of other examples.

I would expect Tom Udall to be closer to Ken Salazar than he is to Feingold -- in short he'll vote for all kinds of outrageous things like Telecom immunity and war funding with no accountability.

America may not be a "center-right" country any more but the Congress still sure is! The're a pack of total wankers from the word go.

We would need to primary at least 5-10 successfully just to get their serious attention!

Did you catch the infinitive verb in the above post? "to primary." How sick.

http://www.cnsnews.com/public/content/article.aspx?RsrcID=39773

"Federal judicial nominees selected because of their ability to “empathize” with politically correct groups must show that they will not deviate from their “solemn oath” to execute the law, even when it runs counter to their personal preferences, said Sen. Mitch McConnell (R-Ky.) at the Federalist Society’s annual meeting in Washington, D.C., on Thursday."

Minnesota Senate Recount, Update VIII
Share Post PrintNovember 26, 2008 Posted by Scott at 5:09 AM
The Franken campaign and its allies such as Minnesota Secretary of State Mark Ritchie and Hennepin County Attorney Mike Freeman are now focusing on rejected absentee ballots. In today's Star Tribune Kevin Duchschere shows that Ritchie is improvising in advance of the state Canvassing Board meeting today which will consider the treatment of rejected absentee ballots. Ritchie solicited the advice of Freeman et al. for the handling of rejected absentee ballots:

Hennepin County Attorney Mike Freeman proposed a process for reconsidering rejected absentee ballots that would partly skirt the Canvassing Board: Have local elections officials review such ballots and identify those possibly improperly rejected.

Freeman, a DFLer who backed Franken, said that he and Anoka County Attorney Bob Johnson worked on the plan after Secretary of State Mark Ritchie asked them and other county attorneys for ideas to improve the process.

In a statement, the Coleman campaign said: "This is a back-door effort by both the Franken campaign, and Mr. Freeman, to try to gain influence on the eve of the discussions by the Canvassing Board, and there needs to be further explanation for why the Hennepin County Attorney is using his office in such an overtly partisan manner."

But Freeman disagreed with that assessment. "This is trying to count all the ballots. How the hell is that partisan?" he said.

The vast majority of rejected absentee ballots appear not to raise such issues. Duchschere comments:

The Star Tribune has analyzed the reasons absentee ballots were rejected in 28 counties, and only two counties -- Ramsey and Itasca -- specifically cite election officials' error. In Ramsey County, it appeared that 53 rejections were tied to administrative error.

Elsewhere the Wall Street Journal reports that the Franken campaign has purportedly obtained information from 66 Minnesota counties on 6,432 rejected absentee ballots. The Franken campaign concedes that most of those ballots were properly rejected, but has forwarded an affidavit containing four examples of improperly rejected ballots to the Canvassing Board. (Duchschere also reports on the mysterious appearance and disappearance of ballots during the recount in Becker County and in Crystal.)

As we suggested earlier this week, the battle for Minnesota may just be getting started. John Fund picks up on the question of rejected absentee ballots:

The problem with adding absentee ballots is state law. According to an advisory opinion issued last week by the office of Democratic state Attorney General Lori Swanson, "Only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process." A recount manual prepared this year by the office of Secretary of State Mark Ritchie, also a Democrat, makes clear that the canvassing board only supervises "an administrative recount" that is "not to determine if absentee ballots were properly accepted."

But Mr. Franken's attorneys are now arguing that Minnesota law also requires that each county's election report include "the complete voting activity within that county." They are also invoking the Equal Protection arguments cited by the Supreme Court in Bush vs. Gore, as well as rulings from Washington State's disputed 2004 governor's race -- that contest was decided for Democrat Christine Gregoire by 133 votes after an initial count and two subsequent recounts.

Intent on harvesting absentee ballots, the Franken campaign has presented affidavits from four voters who claim their ballots were improperly rejected. It hopes to find more, now that a Ramsey County judge has agreed to a Franken demand that it have access to data from that county on whose absentee ballots had been rejected. After initially saying rejected absentee ballots shouldn't be part of the recount, the secretary of state's office now says the information should be made public.

If the absentee names are made public, a mad scramble will ensue to contact those voters and get them to demand their ballots be counted. That's just what happened in the 2004 governor's race in Washington State after King County Judge Dean Lum allowed local Democrats access to the list of provisional voters that hadn't been counted because either there was no signature or no match between the signature and the voter registration on file with officials.

It should be noted that the Attorney General's opinion to which Fund refers was actually provided by Assistant Attorney General Ken Raschke, who specializes in Minnesota election law. As Politics in Minnesota observed last week, you don't mess around with Ken.

Fund then turns to the ominous Washington state connection to the Minnesota recount courtesy of the Franken campaign:

Democrats with experience from the Washington recount are now advising Mr. Franken. Paul Berendt, a former chair of the Washington Democratic Party, was in Minneapolis this month. "What I bring to this effort," he told Oregon Public Radio from the Minneapolis recount office, "is that I understand every single step of this recount process and the things that you need to look for in order to make sure that every vote is counted."

At the conclusion of his column Fund cites some troubling history:

If the strategy of adding previously rejected ballots to the Minnesota Senate recount is successful, a final outcome could be months away. In 1975, the U.S. Senate refused to accept New Hampshire's certification that Republican Louis Wyman had won by two votes. The seat was vacant for seven months, with the Senate debate spanning 100 hours and six unsuccessful attempts to break a filibuster and vote on who should be seated. The impasse ended only when a special election was agreed to, which was won by Democrat John Durkin.

I trust we won't be holding a do-over of this election, but the Washington connection cited by Fund is suggestive of a nightmare scenario all by itself.

Via RealClearPolitics.

I now think Coleman has a better than 50% to pull this out. Every vote counts.

Why aren't any of you "Court Watchers" mentioning the lawsuits over Obama's eligibility to serve as POTUS?

http://www.freerepublic.com/focus/f-news/2136245/posts

"WASHINGTON, D.C. – On Wednesday, Nov. 19, U.S. Supreme Court Justice Clarence Thomas distributed Leo C. Denofrio’s renewed application for a stay of the election for conference on Dec. 5.

His first application was denied by Justice David Souter on Nov. 6. However, rules of the court allow for the renewed submission to a justice of choice.

Beginning in October, Denofrio made his way up through the ranks of the courts until his constitutional question as to the meaning of “natural born citizen” reached the Supreme Court.

He submitted an application for an emergency stay to prohibit the use of what he called “defective ballots” in the state of New Jersey because they contained ineligible candidates for the office of President of the United States, and asked that the court order New Jersey Secretary of State (SOS) Nina Mitchell Wells to remove the names of Republican candidate John McCain, Democratic candidate Barack Obama and Socialist Workers Party candidate Roger Calero from New Jersey ballots.
According to Denofrio, the three candidates are not “natural born citizens,” as required by the Constitution to hold the office of President of the United States...
New Jersey statute requires Wells to make a“statement” wherein she certifies, under her hand and official seal of office, the names … “of all such candidates for whom the voters within such county may be by law entitled to vote at such election.”...
If the SOS doesn’t protect the citizens of New Jersey, Denofrio states it is then up to the citizens to command Wells to do so.

As a result of Wells’ “misfeasance,” Denofrio says the state’s ballots contain the names of three presidential candidates who are not, “by law entitled,” to hold the office of President of the United States."

And of course there is the lawsuit by Alan Keyes over Obama's Birth status, along with dozens of other lawsuits.

http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=80931

"The California secretary of state should refuse to allow the state's 55 Electoral College votes to be cast in the 2008 presidential election until President-elect Barack Obama verifies his eligibility to hold the office, alleges a California court petition filed on behalf of former presidential candidate Alan Keyes and others.

The legal action today is just the latest is a series of challenges, some of which have gone as high as the U.S. Supreme Court, over the issue of Obama's status as a "natural-born citizen," a requirement set by the U.S. Constitution."

"The biggest question is why Obama, if a Hawaii birth certificate exists, simply hasn't ordered it made available to settle the rumors."

If Obama is disqualified, then Biden would be President. What is the point of that?

seems to be in the lead on the birth certificate matter. TrueConservative, I have noted this in the past but haven't pressed it.

automatically become president? What if there's a finding before the electoral college meets? Would they still elect Obama and then SCOTUS would declare him ineligible? Then Biden would become president. But what if the college Dems vote for Clinton, Biden and others, with Obama not getting 270. Then it would go to the House, where the Dems could pick the next president. But would they be able to unify around one candidate? Each state delegation has one vote. So if NY voted for Clinton, Del. for Biden, NM for Richardson, and so on, could McCain win on a plurality (with all the GOP states voting for him?). Would that make it a McCain-Biden situation? All very remote, I know, because I doubt any court will find in favor of any of these lawsuits.

I was under the impression that if Obama is disqualified before the electors meet, then then Biden is disqualified too since he's part of the ticket.

And for the so-called conservative that says "What's the point?"

What's the point? Are you serious? Isn't that what this site is all about, following the Constitution? A very sad comment for you to have made.

Releasing a birth certificate is the absolute minimum that should be required of Obama, yet he refuses.

that the votes for president and vice president take place separately, although for 200 years or so it's been pretty automatic that both are elected that day. So, Biden would neither be automatically disqualified nor automatically become the president. See my discussion above. If I'm wrong on any of these points, I welcome correction.

Point of clarification: AC's the one who asks, "What's the point?"

Not this again. I'm with AC1. The Democrats will control the White House for the next four years, regardless of who's in the big chair. So what *is* the point? Obama will not be disqualified for the presidency before electors meet. And if he somehow is, say hi to either President Biden (who was actually *on* the ticket, unlike Hillary Clinton) or far more remotely, President Pelosi, since members of the House would choose one of those two. But as a practical matter, this won't end up in the House anyhow, so dreaming about McCain somehow getting to become president by capturing a plurality of state delegation votes is the height of denial. There was an election, TrueConservative, and the Democrats won. It's as simple as that. Continuing to pursue this is a complete and utter waste of time. I care about the Constitution as much as anyone else, but I'm also realistic enough to know that after the impact that Bush v. Gore had on its reputation as an institution, the SCOTUS isn't going anywhere near anything that might impact the result of a presidential election -- and certainly not a SCOTUS with Anthony Kennedy as the deciding vote. It's over.

But hey -- don't take my word for it, TrueConservative. Instead, why don't you read what noted, respected *conservative* legal minds (and not those who, like you, direct readers here to vile and racist, anti-Obama websites) say about this subject. Let's start with Matt Franck of the National Review's "Bench Memos," who counsels those urging him to write about the birth-certificate issue to "Give it up and get on with life" in his recent post "Dear Lord, Make It Stop." Franck neatly lays out why this is such a waste of time -- even if Obama *were* born in Kenya, his mother was an American citizen, and as a result, "the applicable statutes about foreign birth with one U.S. citizen parent are on Obama's side here." Here, of course, is where those making this argument get especially loony and argue that Obama must have lost his U.S. citizenship by going to Indonesia as a boy, and speculate that Obama must have had dual citizenship, so therefore he forfeited his U.S. citizenship. Ummm, yeah. So while Franck makes no comment on that, if you really think the SCOTUS is going to step in and use the bizarre possibility of *possibly* involuntarily forfeited citizenship during Obama's early boyhood as a justification to invalidate the votes of a clear majority of Americans, I've got some oceanfront property in Wyoming to sell you. Here's Franck's post, for those who missed it:

http://bench.nationalreview.com/post/?q=ZThmOTdhZmU4NDZhMWRlOGFiOTViYjhh...

Next is the Wall Street Journal's "Best of the Web" today columnist and noted conservative James Taranto, who points out that with regard to Berg's current action, the defendants (i.e., Obama, the DNC) are under no obligation to respond, and that there's no reason to think that they'll bother. Taranto speculates that the SCOTUS at most will only weigh in on whether Berg actually has legal standing, and not on the actual particulars of his case:

http://online.wsj.com/article/SB122763857669957141.html

Why won't Obama release the long-form? Who knows, but as I've written here before, he may just not want to keep producing hard documents to combat wacky rumors, figuring that no matter how many papers he provides, he won't satisfy detractors and it will just lead to endless inquiries (a view undoubtedly informed by the endless investigations into Clinton in the '90s).

Probably a better question to ask is, of all the suits that have been filed so far (and there have been many), why do none appear to have been filed by McCain electors, who unlike Berg actually have standing? What does that say about McCain electors' beliefs on this matter? I think the answer is clear: the continued pushing of this line of reasoning is relegated to the fringes. Denofrio in NJ in particular -- he's a complete crackpot.

http://writ.news.findlaw.com/commentary/20081126_tobias.html

"A number of significant developments are cause for the United States federal courts to give thanks on this Thanksgiving holiday. Perhaps most important are the expansion of Democratic Party majorities in the 111th U.S. Senate and House of Representatives, and the election of Barack Obama as the 44th President, because the federal judiciary appears to fare better by several metrics when Democrats control the other two branches. However, it seems premature to predict exactly how the new Congress and chief executive will address the federal courts, especially given the economic crisis that the nation presently confronts.

Democrats and Republicans have cooperated to help the federal courts in numerous areas during the 110th Congress. One prominent field is that of judicial selection. There are now 41 federal court openings, for which President George W. Bush nominated 26 candidates. The judiciary should be grateful that Senator Patrick Leahy (D-Vt.), his party&'s chair of the Judiciary Committee, and Democrats have worked closely with Republicans on approving judges, although even more jurists might have been confirmed, had President Bush fully cooperated with Democrats."

http://somd.com/news/headlines/2008/8758.shtml

"Fourth Circuit Judge Paul Neimeyer[, a Republican,] argued in a recent interview, however, that filling all 15 seats would actually hinder the court. To Neimeyer, 13 judges were the perfect number to handle the approximately 5,000 cases heard by the 4th Circuit every year.

'As it gets larger, it gets harder and harder," said Neimeyer, who was appointed to the 4th Circuit in 1990 by the first President Bush. "So getting too many judges can be too harmful and getting too few judges can be harmful. It has to be like Goldilocks -- just right.'"

GRRRRRRRR!!!!!!!!!

I HATE this line of attack! This is just another example of the PATENTLY FALSE logic Republicans have used since the 1990s to keep Democratic judicial nominees off both the Fourth Circuit and the D.C. Circuit. Why can't Republicans just admit publicly that ideology IS a valid criteria on which to evaluate judicial nominees?

Any court is going to be better off with more judges instead of fewer. In today's litiginous world, the courts are overworked. I am amazed that anyone would argue otherwise.

The problem is NOT with the number of judges, it is with the judicial philosophies of those people confirmed to be judges. IMHO, the Democrats had every right to investigate and ask questions concerning the judicial philosophy of the likes of Miguel Estrada, Peter Keisler, Robert Conrad, Rod Rosenstein and Glen Conrad. Out of deference to the president and in consideration of these nominees' professional and ethical credentials, however, each and everyone of these D.C. Circuit and Fourth Circuit nominees should have been confirmed - regardless of the number of seats on the involved courts.

Please, as principled conservatives, let's not use a game of numbers as a subterfuge to help block Obama nominees. Let's not return to the deceptive ways of the 105th and 106th Congresses. If an Obama nominee is deemed too liberal based upon his writings, the Republicans should openly announce opposition to that candidate on those grounds alone. Please, no more diversionary arguments.

Apparently Justic Thomas thinks there is enough merit to the case to warrant a conference on Dec. 5. And this is just one lawsuit of many, including a lawsuit by Alan Keyes. i guess we will find out on Dec. 5.

Saying that Thomas was unqualified may not have been Barry's smartest move.

Well, I agree with you wholeheartedly about Obama's remarks about Thomas (and I'm literally chuckling as I type this, because yes, it was not exactly a wise move on his part to say such a thing!). Had Obama kept his yap shut, maybe Thomas wouldn't have been willing to believe that this warrants a conference. More to the point, a presidential candidate has nothing to gain -- ever -- and plenty to lose by insulting an incumbent member of the court.

And indeed we will see what brews on December 5. Next week will be an interesting week, to be sure............

Your cynicism regarding Justice Thomas, whether intentional or not, is unfortunate. It is highly unlikely Justice Thomas would act in an official capacity based on an insult by Obama or anyone else. Personal character, professional ethics, and fidelity to the Constitution and rule of law would preclude Thomas from acting in such a childish and vindictive manner.

that I'm not the one receiving return fire, but I will point out that I haven't listed the site that I find the best (Phil Berg). The reason I haven't done so is because I find the URL name to be objectionable and unnecessarily biases anyone going to that site--one way or another.

is the vp elect and would become President if Obama were not able to. There is no chance that will happen. Can you imagine what would happen in this country if the SC said Obama could not take office?

hasn't yet been elected vp by the electoral college. That vote (and the separate one for president) takes place in Dec. Then I guess it is technically correct to speak of president-elect and vice president-elect, though in our day and age that tends to be viewed as a technicality and therefore bypassed.

The only time I've ever watched the electoral college votes was in December of 2000. Now THAT was high drama--with the current vice president presiding over the electoral college vote (inc. that of Florida and his native Tennessee--which would have rendered Florida moot!) AND having to beat back spoken objections to votes going to Governor Bush!!!

Obama's Judges and the Senate
Mitch McConnell lays down some markers.

Bipartisan hope springs eternal, even among Washington lawyers. That was the message at the Federalist Society's annual convention last week. After years of obstruction by Senate Democrats, Minority Leader Mitch McConnell offered President-elect Obama a roadmap for ending the political war over judicial nominations. What Mr. Obama does in his early days in office will reveal a lot about the next four years.

The key, Mr. McConnell explained, is for the new President to govern as he campaigned -- with an eye toward moderation. In 2004, he reminded the audience, the Illinois Senator criticized President Bush's effort to "push a very aggressive agenda that wasn't the way he campaigned." Now we'll see if that was more than political posturing.

A good first gesture would be to renominate some of President Bush's highly qualified judicial picks who have been left to languish for years. Peter Keisler, now nominated to the D.C. Circuit Court of Appeals, is widely considered to have Supreme Court potential. Nominees Steve Matthews and Bob Conrad are strong choices for the Fourth Circuit, allowing the new President to send a signal that he won't play politics with the national security cases that frequently come before that court.

There's plenty of precedent: Mr. Bush made an effort early in his Administration by renominating Clinton judges Roger Gregory and Barrington Parker. Bill Clinton sent up Republican-appointed district judges for appeals court vacancies in the late 1990s, and they were quickly confirmed by the Senate.

Giving the nod to Bush nominees would also help allay the concern that Mr. Obama lacks a constitutional standard for judicial selection. On the campaign trail, the Illinois Senator suggested that one of his criteria for selecting judges would be their "empathy." That's a far cry from judges as impartial arbiters of the law -- and would be the most untethered standard any President has offered for judicial picks. Without a fealty to the Constitution, a judge is able to bend on the emotions of a case.

In picking judges, one test will be how Mr. Obama uses the American Bar Association, the lawyers' group hoping to reclaim a dominant role in judicial vetting. The group lost that privilege during the Bush Administration, when the President noted that the ABA's supposedly nonpartisan "professional" review had devolved into transparent politicking. The ABA has been a force in politicizing the selection of judges since it announced in the 1980s that ideology was a legitimate consideration. In 2001, New York Senator Chuck Schumer formally adopted that standard, which Senate Democrats then used to stymie numerous Bush nominees, all the way to unprecedented judicial filibusters.

Mr. Obama has his own skeletons in this regard, most notably in his 'no' vote on the confirmation of Supreme Court Chief Justice John Roberts. Though Judge Roberts was broadly accepted by Democrats as possessing the qualifications and temperament to make a fine Justice, Mr. Obama explained that he had decided to oppose the nomination because of concerns over his "political" philosophy. He shouldn't be surprised if the GOP invokes the same standard.

Obama would go a long way toward earning at least the good faith of judicial conservatives if he were to renominate and actually push for the confirmations of a few sterling Bush nominees, such as Keisler, Matthews and R. Conrad. It makes sense - Keisler because he's just too outstanding and destroying his chances would set a very bad precedent for the future (yes, I know, the Reps did so already with Snyder in 2000 and the Dems with Kuhl and Estrada, in particular), and Matthews and R. Conrad because they come from Rep Senator states where the blue slip can effectively stop Obama's liberal nominees. If Obama were to do this, I think it would expand his chances greatly to get some more controversial later nominees through. If he's smart - and I'm certain he is - he will do something along these lines.

Anyone have any news who might be the solicitor general? My money is on someone like Kathleen Sullivan, Seth Waxman, Paul Smith, or maybe even Walter Dellinger. Here's another the Wall Street Journal recently discussed.

"Preempt This: Plaintiffs Attorney David Frederick for Solicitor General

Posted By Alicia Mundy On November 11, 2008 @ 4:59 pm In Drugs, FDA | 14 Comments

levine_art_257_20081103151914.jpg
Diana Levine walks with her attorney David Frederick as they leave the Supreme Court, Monday, Nov. 3, 2008. (AP/Gerald Herbert)

Speculation about key posts in the new administration continues building, with John Podesta, co-chair of the Obama transition team, telling reporters today that the changeover will cost about $12 million.

While we’ve been fixated on who will head the FDA and Health and Human Services under Obama, we heard about a lawyer under consideration for a top post in the Justice Department who really grabbed our attention.

Plaintiffs attorney David Frederick is said to be on the short list for Solicitor General in the Justice Department. In that role, Frederick would be in charge of representing the government’s interests in the Supreme Court.

Earlier this month, Frederick argued at the Supreme Court on behalf of Diana Levine in the Wyeth v. Levine case. The case is central to a major Bush policy initiative called preemption, and a decision favoring the drugmaker Wyeth could limit product liability lawsuits against drug companies.

An attorney with Kellogg Huber Hansen in D.C., Frederick was brought into the Levine case this year, replacing a team from the advocacy group Public Citizen, at the suggestion of trial lawyers who were concerned about the far-reaching implications of the case to consumers and to them. The business community led by the Chamber of Commerce has weighed in strongly on Wyeth’s behalf. The Solicitor General, representing the FDA, supports Wyeth and argued for preemption in court.

Frederick, through an aide, said that as a member of the Obama-Biden Legal Policy Team, he couldn’t comment at all.

Democratic leaders have vowed to roll back preemption. Frederick won a major preemption cases at the Supreme Court in 2005, representing a group of Texas peanut farmers against Dow AgroSciences. The Bush Solicitor General argued on behalf of Dow, but lost."

Frederick has a very impressive resume.

Education & Honors:

* University of Texas School of Law, Austin (J.D., with honors, 1989)

* Oxford University, University College (D.Phil., 1987)

* University of Pittsburgh (B.A., summa cum laude, 1983)

* Phi Beta Kappa

* Rhodes Scholar

* Truman Scholar

* Coast Guard Medal for Distinguished Public Service (2000)

* Attorney General’s Distinguished Service Award (1998)

* Department of Justice Inspector General’s Award for Exceptional Service (1997)

* Articles Editor, Texas Law Review, 1988-89

Government Service:

* Assistant to the Solicitor General, U.S. Department of Justice, 1996-2001

* Counselor to the Inspector General, U.S. Department of Justice, 1995-96

* Law Clerk, Justice Byron R. White, U.S. Supreme Court, 1991-92

* Law Clerk, Judge Joseph T. Sneed, U.S. Court of Appeals, Ninth Circuit, 1989-91

Publications:

* Supreme Court and Appellate Advocacy, West (2003)

* The Art of Oral Advocacy, West (2003)

* Rugged Justice: The Ninth Circuit Court of Appeals and the American West, 1891-1941, Berkeley: University of California Press (1994)

* Justice White and The Virtues of Modesty, 55 Stanford Law Review 21 (2002)

* Co-author: Prejudgment Interest in Seamen’s Personal Injury Cases: Supreme Court Precedent Lost in a Sea of Procedural Confusion, 33 Journal of Maritime Law and Commerce 423 (2002) (with Michael F. Sturley)

* Constitutional Law and Separation of Powers Decisions, in Developments in Administrative Law and Regulatory Practice, 1998-1999 (2000)

* Reforming Congressional Ethics Procedures: Lessons from the Attorney Disciplinary Process, 48 Administrative Law Review 69 (1996)

* Commentary on the Congressional Accountability Act of 1995: A Section-by-Section Analysis, in Lobbying the New Congress: Compliance with the Legal, Regulatory and Ethical Requirements (Susman and Timmer eds., 1995)

* Laws to Congress, Hearings before the Committee on Governmental Affairs, U.S. Senate, 103rd Cong., 1st Sess. 334-52 (June 29, 1994)

* Rules of the House of the Committee on Rules, House of Representatives, 103rd Cong., 2d Sess. 468-91 (Apr. 13, 1994)

* Congressional testimony: Congressional Coverage Legislation: Applying Legislative Reorganization Act of 1994, Hearings before the Subcommittee on Application of Laws and Administration of the Hill, Hearings before the Joint Committee on the Organization of Congress, 103rd Cong., 1st Sess. 46-48, 220-49 (June 17, 1993) (prepared statement with Professor Harold H. Bruff)

* The Ninth Circuit and the Development of Natural Resources in the Early Twentieth Century, 6 Western Legal History 183 (1993)

* Railroads, Robber Barons, and the Saving of Stanford University, 4 Western Legal History 225 (1991)

* John Quincy Adams, Slavery, and the Disappearance of the Right to Petition, 9 Law and History Review 113 (1991)

* Political Participation and Legal Reform in the International Maritime Rulemaking Process: Lesser Developed Countries and the Hamburg Rules, 22 Journal of Maritime Law and Commerce 81 (1991)

http://www.freep.com/article/20081128/NEWS06/811280310/1008/news06

"While President-elect Barack Obama has been revealing his picks for crucial cabinet positions, there are plenty of lawyers with Democratic ties and other partisan activists who are interested in the 34 vacancies in federal courts and other appointments that Obama can begin to fill once he is sworn in as the 44th president of the United States."

"'There have already been some discussions and some lists being developed," said Ed Sarpolus, director of government affairs for the Michigan Education Association. "There is certainly a lot of buzz out there.'

An advisory panel of Obama loyalists in the state will most likely be named to come up with recommendations for appointments or judicial nomination.

One of the earliest and most active supporters of Obama in Michigan is Nicole Lamb-Hale, a friend and Harvard Law School classmate. She served on his national finance committee, was in Chicago on election night to witness his victory speech and will attend his inauguration in January. Beyond that, she didn't want to speculate on what an Obama administration might mean for her."

http://online.wsj.com/article/SB122792243571465873.html?mod=googlenews_w...

"Bipartisan hope springs eternal, even among Washington lawyers. That was the message at the Federalist Society's annual convention last week. After years of obstruction by Senate Democrats, Minority Leader Mitch McConnell offered President-elect Obama a roadmap for ending the political war over judicial nominations. What Mr. Obama does in his early days in office will reveal a lot about the next four years."

"A good first gesture would be to renominate some of President Bush's highly qualified judicial picks who have been left to languish for years. Peter Keisler, now nominated to the D.C. Circuit Court of Appeals, is widely considered to have Supreme Court potential. Nominees Steve Matthews and Bob Conrad are strong choices for the Fourth Circuit, allowing the new President to send a signal that he won't play politics with the national security cases that frequently come before that court."

At this point, I see no reason for Obama to renominate any of Bush's failed judicial nominees. Why? He has 58 Democrats backing him in the Senate. With such Democratic numbers supporting him, there is no reason for Obama to appease the few angry or disappointed Republicans left in the Senate. He doesn't need them in the legislative process. With RINO senators like Specter, Collins, Snowe and possibly Coleman, his legislative priorities should have no problems getting passed in the 111th Congress.

Since COA and district court judicial nominations are usually done under the radar of the MSM, the judicial wars of the Bush II administration will most likely be swept under the carpet. A few months into the Obama administration, I doubt seriously that there will be any mention in the MSM about the wrongs done to Estrada, Keisler, R. Conrad and Matthews.

IF (and this is a big IF), Obama really does want to appear bipartisan (and as I just explained I see no reason to think that he does), he most likely will renominate consensus nominees Paul Diamond and Glen Conrad - not heavyweight conservatives like Keisler, R. Conrad or Matthews.

BTW, I think Matthews never had the full support of either Graham or DeMint. Matthews was Fred Fielding's choice, not theirs. Chances are good that both Graham and DeMint are glad to see Matthews out of the picture.

http://www.thetimesonline.com/articles/2008/11/29/news/top_news/docd70ae...

"A presidential nomination of a Hammond-based judge to a federal appeals court has died in Congress.

That nomination's resurrection or burial could serve as an early test of President-elect Barack Obama's approach to shaping the judiciary.

Hammond-based U.S. District Court Judge Philip Simon was nominated by President George W. Bush in September to an open seat on the 7th Circuit Court of Appeals in Chicago. That nomination will expire without a hearing, said Andy Fisher, a spokesman for Indiana Sen. Dick Lugar."

"Speculation abounds on who might replace Simon . . . Also in question is the future of acting U.S. Attorney David Capp, a Democrat who has served under Republicans in the Hammond branch of the federal office. U.S. attorneys frequently are tapped for federal judgeships. Obama also will get to fill an opening in South Bend-based district court.

Bayh's spokesman invoked the prospect of bipartisan cooperation, at least in Indiana."

The article implies that it is possible Simon might be renominated:

A staff member for Judge Simon -- a two-time Bush nominee for the federal bench -- said White House officials have asked Simon not to talk about the nomination.

Would Obama renominate a judge twice nominated by Bush? Curt Levey, executive director of the Committee for Justice, a Washington, D.C.-based conservative advocacy group, noted that bipartisan cooperation on federal judges is not unprecedented.

"I'd point out that Bush, very early in his first term, appointed two Clinton nominees," Levey said."

I think the renomination of Simon is wishful thinking on the part of Republicans, mainly because I have never read anywhere that he was a consensus nominee. The mere fact that Dem-favorite Lugar couldn't get Simon confirmed during this Congress speaks against a renomination. I am, however, interested in the fact that Simon was asked not to comment on his nomination by the White House.

http://hosted.ap.org/dynamic/stories/S/SCOTUS_STEVENS?SITE=AP&SECTION=HO...

"No one thought Stevens would retire from the Supreme Court while George W. Bush was president. But now that Bush's successor has been elected, the only question being asked about the court's oldest and longest-serving justice these days is not can he hang on, but when might he leave."

"If Stevens decides to retire, he will probably consider a variety of personal, institutional and political factors, said Artemus Ward, a Northern Illinois University political science professor who has written a book on Supreme Court retirements.

Justices typically like to depart one at a time, at the end of a term, and not during a presidential election year to keep the court running smoothly, Ward said.

When their health is not an important reason, they tend to "time their departures to coincide with like-minded presidents," he said.

Obama, also a fellow Chicagoan, would seem to be a better match for Stevens than was Bush. As the leader of the court's liberal wing, Stevens helped marshal majorities that questioned important aspects of the Bush administration's preventive detention policy for suspected terrorists."

At least one of those fairly recent deals (Michigan) involved a failed Clinton appointee. Perhaps there were others.

[Here's the entire article, with a different spin for a headline at Yahoo!]

Justice Stevens shows no signs he is ready to quit
Buzz Up Send
By MARK SHERMAN, Associated Press Writer Mark Sherman, Associated Press Writer – Sat Nov 29, 11:30 am ET

WASHINGTON – Only one Supreme Court justice was at Chicago's Wrigley Field to see Babe Ruth supposedly point to the spot where he would hit a home run in the 1932 World Series.

John Paul Stevens is old enough that he worked for a year at the court as a young man before three of his fellow justices even were born. Stevens doesn't mind calling attention to his age (88), even though liberal interest groups prayed regularly over the past eight years for his continued good health.

No one thought Stevens would retire from the Supreme Court while George W. Bush was president. But now that Bush's successor has been elected, the only question being asked about the court's oldest and longest-serving justice these days is not can he hang on, but when might he leave.

After nearly 33 years on the court, there is no clear answer.

Seated in a comfortable chair on a stage at the University of Florida recently, Stevens betrayed no sign that he is preparing to retire, remarking only that if the court had maintained the same heavy caseload today it had when he became a justice in 1975, "I would have resigned 10 years ago."

Stevens already has hired the law clerks who would begin work in October 2009, one sign — though not conclusive — that he plans to serve at least until June 2010.

Justices are appointed for life and some in the past have famously pledged to serve out their terms. Chief Justice William Rehnquist was the most recent justice to die in office, in 2005.

Several former law clerks to Stevens have said that he is acutely conscious of not wanting to follow the examples of Rehnquist or Justice William Douglas, whom colleagues had essentially to force to resign in 1975 after a serious stroke. Stevens took Douglas' seat.

"He's responsible enough and selfless enough not to hang on until he's incapable of doing the job," said University of Oklahoma law professor Joseph Thai, a clerk for Stevens in 2000 and 2001. "I've heard he's asked someone on the court to let him know, if he doesn't realize it himself, if he ever gets to that point."

He seems far from it at the moment.

Stevens is a sharp, though polite, questioner, and a prolific writer. He regularly commutes between the court and his home in south Florida. There, he works by computer and uses e-mail to stay in touch with his office in Washington. He plays tennis, golf and bridge.

He appears also to take a certain pride in his advanced age; only Oliver Wendell Holmes remained on the court at 88. In a dissent in a case involving a videotaped high-speed car chase, Stevens noted that he alone among the justices learned to drive before the advent of the interstate highway system.

"Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways — when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine — they might well have reacted to the videotape more dispassionately," he said.

Douglas Kmiec, a Pepperdine University law professor and former Reagan administration official who backed Democrat Barack Obama this year, said that at a recent conference Stevens showed he "is as intellectually able as ever."

In listening to Stevens' recount his presence at the 1932 World Series game known for Ruth's "called shot," Kmiec said, "It was very clear that the justice was very amused to amuse us with his age."

If Stevens decides to retire, he will probably consider a variety of personal, institutional and political factors, said Artemus Ward, a Northern Illinois University political science professor who has written a book on Supreme Court retirements.

Justices typically like to depart one at a time, at the end of a term, and not during a presidential election year to keep the court running smoothly, Ward said.

When their health is not an important reason, they tend to "time their departures to coincide with like-minded presidents," he said.

Obama, also a fellow Chicagoan, would seem to be a better match for Stevens than was Bush. As the leader of the court's liberal wing, Stevens helped marshal majorities that questioned important aspects of the Bush administration's preventive detention policy for suspected terrorists.

Stevens also wrote a fierce dissent in Bush v. Gore, the case that helped seal the 2000 presidential election for Republican Bush.

"I think one reason he didn't retire was that he didn't want the legacy of Bush v. Gore to extend to his replacement," Thai said.

On May 9, 2002, Bush announced his first 11 court of appeals nominees. In that bunch were Roger Gregory, a recessed appointed Clinton court of appeals judge, and Barrington Parker, a Clinton appointed district court judge.

Later in 2008, he nominated failed Clinton court of appeals nominees Helene White and Christine Arguello to judicial posts. White was confirmed as a court of appeals judge and Arguello as a district court judge.

So, if Obama tries to imitate Bush, he will renominate two failed Bush court of appeals nominees to their original positions, he will nominate one Bush court of appeals nominee to a district court position, and he will nominate one already confirmed Bush district court judge to a court of appeals position.

In my previous comment, I said May 9, 2002. It was actually May 9, 2001.

http://www.baltimoresun.com/news/opinion/oped/bal-op.judge30nov30,0,4703...

Although Tobias calls on Obama to name a nominee for the Maryland seat on the Fourth Circuit in a "bipartisan" manner, he fails to point out that the conditions are not ripe for bipartisanship in Maryland. To begin with, neither senator, Mikulski or Cardin, has shown any desire to be bipartisan in the past. Secondly, there is no need for them to be bipartisan now. Since both they and the new nominating president will be of the same party and the Republicans in Maryland are in the extreme minority, what incentive do Mikulski and Cardin have to consult any Republicans about their choice?

I also dislike the way that Tobias, clearly a Democrat, whitewashes Mikulski, Sarbanes and Cardin's unwarranted partisan obstructionism:

"The Bush administration ineffectively attempted to fill this opening. In the Bush White House's early days, it suggested as a possible candidate Peter Keisler, who later served as assistant attorney general for the Department of Justice's Civil Division. However, then-Sen. Paul Sarbanes and Sen. Barbara Mikulski, both Democrats, opposed his possible nomination because Mr. Keisler had never practiced law in Maryland.

During 2003, Mr. Bush nominated Claude Allen, who had served as deputy secretary of Health and Human Services and was from Virginia, for the Murnaghan seat. Maryland's senators objected to Mr. Allen because he had practiced law minimally and not in Maryland. The Allen nomination languished, and he eventually withdrew. In 2007, Mr. Bush nominated Rod J. Rosenstein, the Maryland U.S. attorney, but Senators Mikulski and Benjamin Cardin opposed this choice because they preferred that he remain as Maryland's chief federal prosecutor."

Let's call a spade a spade, the Maryland senators created excuses to oppose Keisler, Allen and Rosenstein because they didn't want ANY Republican filling the Maryland seat. Although I am now glad that Allen was never confirmed, how Mikulski, Sarbanes and Cardin treated Keisler and Rosenstein was reprehensible.

http://blog.nola.com/jarvisdeberry/2008/11/we_were_robbed.html

"Claude Allen is a black man who was once the former chief spokesman for U.S. Sen. Jesse Helms, but that kind of craziness isn't in the official psychiatrist's manual, so Allen had to up the ante before he was diagnosed with a mental disorder.

His doctor determined in a report that Allen, more recently a White House aide to George Bush, suffers from kleptomania, the impulsive desire to steal things. Or is it, as that doctor told a lawyers' disciplinary board investigating Allen, that the lawyer has an adjustment disorder? Or could it be that Allen stole two stereos and a printer from Target out of solidarity with flooded-out folks in New Orleans?"

@BoBo:

I think you should email Erick or Andrew and ask if they can give you posting rights!

http://thehill.com/leading-the-news/toomey-specter-faces-tougher-road-in...

"Specter's centrist record has made him a frequent target of the right. In 2004, some conservatives did not want him to take the gavel of the Judiciary Committee, but he won that battle as well.

Conservative critics of Specter will be closely watching the senator's positions on President Obama's judicial nominations. Specter is now the ranking member of the Judiciary panel.

Specter helped block President Reagan's appointment of Robert Bork to the Supreme Court in 1987 but strongly supported the nomination of Justice Clarence Thomas."

http://www.rollcall.com/issues/54_61/news/30458-1.html

"Senate Republicans and conservative activists are warily watching President-elect Barack Obama’s early executive branch nominations, aiming to glean a sense of how the new president will approach the minefield of judicial nominations after he takes office in January, activists and aides said."

Obama's first group of COA nominees will be composed mostly of failed Clinton nominees. Here is a partial list of possible old-Clinton, new Obama nominees:

1) Third Circuit - Stephen Orlofsky for New Jersey seat
Robert Cindrich for Pennsylvania seat
2) Fourth Circuit - Andre Davis for Maryland seat
James Wynn for North Carolina seat
3) Ninth Circuit - Barry Goode for California seat
4) D.C. Circuit - Elena Kagan
Allen Snyder

Based upon age, I think Orlofsky, Cindrich, and Snyder aren't likely to be renominated under Obama. I think Davis,Wynn and Goode, though, are shoo-ins to be renominated. Kagan, if she isn't dumb enough to accept an executive branch position in the Justice Dept., could also be a shoo-in for the D.C. Circuit.
As I have mentioned before, I think it is also possible that Elizabeth Gibson could be nominated to the Fourth Circuit's South Carolina seat.

http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1202426264510&hub=TopStori...

Pressure Is on Obama to Name Hispanic Justice

By Tony Mauro

Legal Times

December 01, 2008

For eight years of Clinton, then eight years of Bush, Carlos Ortiz has waited. With Obama, Ortiz hopes—trusts—he will have to wait no more to see his dream realized: the first Hispanic Supreme Court justice.

“What more unifying appointment could there be than a Hispanic justice?” asks Ortiz, who began his campaign in 1987 as a board member, then as president, of the Hispanic National Bar Association (HNBA) and later as chair of the Puerto Rican Legal Defense and Education Fund. “It’s not just the right thing to do, but we deserve it. I can’t imagine that the next appointment will go to someone other than a Hispanic.”

Encouraged by President-elect Barack Obama’s talk of inclusiveness, and emboldened by the importance of the Hispanic vote to Obama’s victory—two-thirds of Hispanics voted for him—Hispanic groups are cautiously hopeful that finally the time has come for a justice with a Latino background.

Almost every list of possible Obama nominees to the high court includes Hispanics—most notably Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit. But others who are mentioned include: Judge Kim Wardlaw of the 9th Circuit (her mother was Mexican), U.S. District Judge Ruben Castillo of Chicago, California Supreme Court Justice Carlos Moreno, and even two Democratic U.S. senators—Ken Salazar of Colorado and Robert Menendez of New Jersey.

But Ortiz and other Hispanic legal leaders are reluctant to name names themselves, not wanting to spoil their chances and also, seemingly, bracing themselves for disappointment yet again. They know that unpredictable variables of timing and politics can turn a sure-bet candidate—or ethnic group—into an also-ran overnight.

President Bill Clinton was lobbied hard to name a Hispanic, and President George W. Bush’s early list of possible candidates was heavy with Hispanic names, many from his Texas days. Ortiz met with then-Attorney General Alberto Gonzales to press the issue, but Gonzales’ assurances turned out to be “lip service,” as Ortiz puts it now. When the vacancies finally arose, other factors, both political and ideological, took precedence over naming a Hispanic to the high court.

“It was a lack of will, a lack of commitment,” says current HNBA president Ramona Romero. “It was not because of the absence of qualified candidates.”

This time, she says, “there is an enormous sense of urgency” behind making sure the opportunity is not lost during a Barack Obama presidency. She is assembling a committee, including Ortiz, to contact and vet possible candidates for a Supreme Court nomination, so that “we will be ready.”

On Nov. 14, Romero wrote a letter to Obama urging him to “make history yet again” by nominating a Hispanic justice, thereby erasing the “unfortunate message” conveyed by a Supreme Court with no Hispanic members. “The presence of a Latino or Latina at the conference table could add a needed ‘special voice’ to the Supreme Court’s deliberations and decisions—a voice that can speak about the law as it affects U.S. Hispanics with the authority that only firsthand knowledge can provide.”

John Trasviña, president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), also has high hopes. “We will have a president who understands the Latino community,” says Trasviña, who notes that in 1995 Obama, then an associate in Judson Miner’s Chicago law firm, worked with MALDEF on a voter registration case.

Add to that the growing number and stature of Hispanic lawyers, says Trasviña, and it will be hard to explain not appointing a Latino justice at some point. “We’ve got a deeper talent pool than ever before,” he says.

But these leaders also point out that their goals reach beyond naming a justice with a Hispanic name or heritage. “Being Hispanic doesn’t always mean that you are grounded in the culture,” says Romero. Evidence of some connection with the Hispanic community, and an understanding of its culture and concerns, will be important in assessing candidates, says Romero.

Trasviña agrees. “Beyond the symbolism, there are cases where it really matters” to have a Latino perspective. For that reason he is hoping Obama will name Hispanics to appeals courts as well as the Supreme Court. Appeals courts decide a lot of immigration cases, and they also serve as training grounds for the high court. Justices David Souter and Clarence Thomas, he notes, were named to the high court after brief stints on courts of appeals.

MALDEF also hopes Obama will embrace a broader Hispanic agenda that includes jobs, health care, and civil rights. “We have evolved from focusing just on a Latino justice to focusing on justice for Latinos.” Trasviña adds, “Clearly we can have both.”

Obama is supposed to name Hispanics for the sake of naming Hispanics, but when Miguel Estrada was nominated there was horror from the left and he was among the many the Dems refused to confirm. Were any other Hispanic nominees blocked?

He will fight passionately FOR every Obama judicial nominee.

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

Under Clinton, Jorge Rangel and Enrique Moreno both were blocked when they were nominated for the 5th Circuit.

No other George W. Bush Hispanic COA nominees (other than Estrada) ever were blocked.

With 40 or more votes, the Republicans in the Senate will still have enough power to obstruct certain Obama judicial nominees. They need, however, to pick their battles carefully. Personally, I do want the more outrageous Obama nominees filibustered if necessary. I would fully support a filibuster of Harold Koh if he is ever nominated to the D.C. Circuit or the Supreme Court. If he was nominated to the 2nd Circuit, I wouldn't mind it as much because he wouldn't be much different from other liberal judges on that circuit like Guido Calabresi.

In particular, with Chambliss re-elected, I think Obama is now more likely to nominate moderate Leah Ward Sears to replace Lanier Anderson on the 11th Circuit as compared to nominating liberal Teresa Wynn Roseborough. Two homestate Republican senators against a nominee is a much more powerful situation than just one.

http://afjjusticewatch.blogspot.com/2008/12/misplaced-deference.html

"The WSJ editorial pages have spent the last eight years crying out for the deferential treatment of a president’s nominees, including speedy hearings and quickly-scheduled up-or-down votes. We are sort of tempted to start a pool on how long it will take them to change their tune. Of course, they are still calling for deference to a president’s nominees. Unfortunately, they are calling for deference to the wrong president."

BoBo! BoBo!! BoBo!!!

http://legaltimes.typepad.com/blt/2008/12/third-vacancy-opens-at-us-dist...

"U.S. District Judge James Robertson will keep his parking spot. He’s still “Your Honor” to litigants. And he will still get paid. But he’s planning to hear fewer cases than he has in years past.

Robertson, appointed in 1994 to the U.S. District Court for the District of Columbia, informed President George W. Bush this week he is taking senior status effective Dec. 31, a move that creates a third vacancy on the court. Judge Thomas Hogan assumed senior status earlier this year, and Judge Gladys Kessler opted for senior status in 2007."

http://abovethelaw.com/2008/12/supreme_court_clerk_hiring_wat_16.php

"With Barack Obama about to assume the presidency, alongside a heavily Democratic Senate, the justices in the liberal wing of the Supreme Court are free to retire if they like. Don't be surprised if Justice David Souter, never a fan of life at One First Street, heads for the exit early in the Obama presidency.

But Justice Ruth Bader Ginsburg and Justice Stephen Breyer plan to stick around for a bit, at least based on their law clerk hiring. Justice Ginsburg has hired all of her October Term 2009 clerks, as well as at least two for October Term 2010. And Justice Breyer, in addition to filling all his OT 2009 spots, has hired at least three for OT 2010."

Lat thinks Souter could retire this term because he has not hired any clerks for next year, unlike all of his other colleagues.

I had almost forgotten that both Orin Kerr (last month) and Tom Goldstein (in 2007) predicted Souter would go first.

From the web site I don't name--

U.S. Supreme Court Update Regarding The December 01, 2008 Deadline
Thursday, 04 December 2008 01:46 Webmaster Main - News We understand everyone is eager to learn what occurred on December 1, 2008, at the U.S. Supreme Court. There is a rumor claiming Mr. Obama was Court Ordered by Justice Souter to turn over his birth certificate by December 1, 2008. This is NOT true.

When a Petition for a Writ of Certiorari is filed the Defendants automatically are given thirty (30) days to respond. They are not required to respond. The end of thirty (30) Days in the Berg v. Obama case was December 1, 2008. Keep in mind, the Defendants could have mailed in a response to the Petition for Writ of Certiorari and the Court allows approximately a week for mail. If this is the case, the envelopes must be postmarked December 1, 2008.

In the afternoon, December 1, 2008, Lisa, Mr. Berg's Assistant contacted the U.S. Supreme Court and spoke with the Clerk. The Clerk informed Lisa Mr. Berg's Petition for Writ of Certiorari would be distributed to all nine (9) Justices and a conference should be set within ten (10) days. As I'm sure you are aware, during the conference the Justices will discuss Mr. Berg's Petition for the Writ of Certiorari and decide whether or not to grant or deny the Petition. It only takes four (4) out of nine (9) Justices to agree to grant Mr. Berg's Petition for Writ of Certiorari. The Justices can also make other Orders during the Conference.

Mr. Berg's Office also learned the Solicitor General is only representing the Federal Election Commission.

Additional documents will be filed within the next couple of days. All Legal briefs will be posted on our website, so please continue checking back for updates.
Last Updated on Thursday, 04 December 2008 12:20

Tobias is a disingenuous jerk. A five year old could see that the failure to get a confirmation on the 4th Circuit for Maryland had to do with the reprehensible Maryland Senators, not Bush. Rosenstein was nominated with plenty of time for confirmation and was an excellent nominee. To say otherwise is to be dishonest at best, venal and malevolent at worst.

Courtesy of How Appealing:

http://www.google.com/hostednews/ap/article/ALeqM5j5yyRBcw5pnsdEsDNm2jVO...

"His Supreme Court confirmation hearings three years old, Justice Samuel Alito apparently still harbors some hard feelings toward one Democratic questioner at the time.

Alito made several joking references to Vice President-elect Joseph Biden during an after-dinner speech Wednesday, including Biden's withdrawal from the 1988 presidential campaign over plagiarizing parts of a speech from a British politician.

"To coin a phrase, in the spirit of the vice president-elect, you can't always get what you want, but you get what you need," Alito said, an imperfect rendering of a Rolling Stones lyric.

Then, he added, "Did someone say that before?"

A bit later in his talk at an anniversary dinner for the conservative American Spectator magazine, Alito said he was about to quote liberally from a magazine article. "In the spirit of the vice president-elect, I want to honor the copyright laws," Alito said."

Courtesy of How Appealing:

http://legaltimes.typepad.com/blt/2008/12/just-in-swearing-in-the-vice-p...

"Supreme Court Justice John Paul Stevens, the oldest and longest-serving justice on the Court, will swear in Joseph Biden as Vice-President on Jan. 20, a source close to the inaugural planners has just confirmed to Legal Times. Stevens, 88, was named to the Court in 1975 by President Gerald Ford. It is rare for a vice president to be sworn in by an associate justice appointed by a president of the opposite party, so this choice can be seen as a bipartisan gesture -- though Stevens is usually regarded as one of the most liberal justices on the Court."

I'm lazy. What does the article say re Souter's hiring?

And we know clerk hiring is not always a guarantee or retiring... or not.

Based upon clerk hiring, it looks like Stevens is planning on staying on until 2010 while Ginsburg is planning on staying on until at least 2011. However, Souter has not hired any clerks yet past this term ending in 2009.

http://bench.nationalreview.com/post/?q=NGU4OWNjMGM3NjkyMjU5ZTg2NjhlZjlm...

"I thought [Alito's] most interesting remarks had to do with how the Supreme Court is increasingly returning to Blackstone's "text first" method of interpreting laws — before trying to imagine what legislators might have had in mind, and before implementing their own policy preferences, judges should read the law and apply the plain language to the situation at hand. Only if the language is unclear, or if the meanings of words have changed over time, should judges move on to other methods of interpretation.

He had two examples, an anecdote and a statistic, to back this up. The anecdote was that in the Second Amendment case D.C. v. Heller, both the majority opinion and the dissent were originalist; both took the language of the law and asked what those words meant at the time they were written. The statistic was that in recent years (I forget the exact time frame), judges have used dictionary definitions more often than they have through the entire history of the court."