Part III of Confirm Them's three-part Q&A session with Jan Crawford Greenburg
By Alexham Posted in SCOTUS — Comments (60) / Email this page » / Leave a comment »
The third and final installment of Confirm Them's three-part interview with Jan Crawford Greenburg, author of "Supreme Conflict," is below the fold. And it was unquestionably worth the wait. Thanks so much to Jan for agreeing to participate in this reader Q&A.
Oh, and if you haven't yet purchased Jan's book, please do so. You won't regret it.
I'm curious about Harriet's recent departure. Does Jan see a sufficient keeper of the judicial conservative flame in Harriet's replacement, Fred Fielding? Is the President going to continue to get great recommendations for his judicial nominations, or has the landscape changed?
Answer: Fielding is a bit of a mystery, isn’t he? Despite his years of service and conservative credentials, getting a handle on him can be difficult. I think he’ll be more sensitive to confirmation issues, but people who know him much better than I do swear that doesn’t mean he’ll seek less conservative candidates. And at the Supreme Court level, you have to remember that those decisions aren’t made by the White House counsel. Rove will remain highly involved (which helps the chances of JRB and Priscilla Owen, two known and highly regarded judges in his view), as will Gonzales (who has tapped top conservatives for the appeals courts). And Deputy Bill Kelley remains in his office, and he’s been incredibly disciplined in screening and vetting prospective nominees. So I don’t think the landscape has changed all that much inside the White House. Now up on the Hill—well, now you have Chairman Leahy. And that is more than a change in the landscape. It’s a whole new building.
It's been reported that AG Alberto Gonzales refused to be nominated, out of a sense of loyalty to the President, as well as the evidence that his nomination would harm him with the base (though I don't believe you mentioned this in your book). If you have heard this as well, do you have any indication whether he would do so again if there were a 3rd vacancy? (so too Owen) and either way, do you feel conservatives would be more accepting of his nomination for a 3rd vacancy, or if potential Dem opposition over WoT positions would be greater or less than they might have been for a previous vacancy?
Answer: I don’t agree that Gonzales flat-out refused to be nominated. At the end of the day, if President Bush—after weighing the pros and cons--still wanted to nominate Alberto Gonzales, the attorney general would have been the nominee. Gonzales sees himself as a solid conservative, he surrounds himself with solidly conservative advisers, and he was outraged by those on the Right who insisted he’d be like Souter. After all, he had a proven track record—just look at his work on Bush’s appellate picks, not to mention his role in formulating the administration’s legal positions related to the war on terror. And his efforts in crafting the administration’s compromise position in the Michigan affirmative action cases—and his conflict with then-Solicitor General Ted Olson—was at the direction of President Bush (though Gonzales did help craft the legal underpinnings for that argument). Even some of Gonzales’s skeptics concede that his service in the Executive Branch would make him more solidly conservative than if he were just coming off the Texas Supreme Court (where he famously wrote that Priscilla Owen’s position in an abortion case was an “unconscionable act of judicial activism.”)
That said, Gonzales recognized conservatives would revolt over his nomination, as did Karl Rove and Andy Card. But it’s hard to believe Rove and Card didn’t also see the same opposition to Harriet Miers. The Miers nomination was so closely held with just a small handful of advisers that Bush got no serious pushback--except from one key person, Alberto Gonzales. That’s the most fascinating thing about the Gonzales story. Gonzales alone—unlike Rove and Card and Miers, herself--recognized that conservatives also would reject Miers. Gonzales alone stuck his neck out and urged President Bush not to nominate her. Bush, of course, didn’t listen—he’d already made up his mind. Rove and Card had signed off, Miers was game, and Gonzales was unable to persuade Bush otherwise. I’d guess Gonzales’s prospects for the Supreme Court now are pretty dim. If Bush gets to replace Stevens or Ginsburg, I suspect conservative opposition still would be there (though perhaps not as strong, since Gonzales undoubtedly is more conservative than either two). But he’d get killed by the Left, which could turn the entire process into a hearing on the President’s anti-terror policies. If the Bush White House is going to wage that kind of battle over its next nominee, it would fight over Janice Rogers Brown or Priscilla Owen--not Alberto Gonzales.
How did the White House feel about the Gang of 14 deal, and did it have any impact on the choices of Alito or Roberts? Did it affect the President in terms of future lower court nominations, such as in sending fewer up than he might have otherwise?
Answer: The White House was frustrated with the Gang of 14 deal, and it clearly had an impact on the choices of Roberts and Alito. Republican senators in the Gang of 14, including Lindsey Graham, told the White House not to nominate the two leading women contenders, Brown and Owen, to the Supreme Court. And conservatives committed to the judges issue will not forget John McCain’s role in that process, now that the presidential campaign is heating up. But when we think about the Gang of 14, I think it’s a mistake to forget what paved the way for the group in the first place: The obvious leadership failures of then-Majority Leader Bill Frist in allowing Democrats to pull off the first-ever filibuster of an appellate court nominee. Think back to 2003, when Democrats were nervously weighing whether to filibuster Miguel Estrada. Some openly opposed it—they thought the public would see it as obstructionist when the nation was dealing with terror threats (it was about the time we were all supposed seal off a safe room in our house with plastic and duct tape). A more forceful leader—i.e., Trent Lott—would have held Democrats’ feet to the fire. Instead, Frist sat back and allowed the Democrats to tentatively stick their toes in the water with Estrada. And Frist’s strategy for getting Estrada through? Schedule another vote. Of course, with each vote, Democrats grew more confident and united, and pretty soon, they weren’t asking whether they’d be able to filibuster. They were asking which nominee they’d target next.
The White House also has to share some of the blame here. Early on, President Bush did not make the filibuster a priority. He didn’t pick up the phone and make calls. Alberto Gonzales, then White House counsel, said he believed it was a Senate issue. By the time the administration and the Senate leadership woke up, it was too late. Democrats had beaten them—and shot down all the top women and minority Supreme Court picks. If Estrada or Owen had been confirmed in 2003 like Roberts was, I doubt Sam Alito would be on the Supreme Court. Bush would have nominated Estrada or Owen (or Kuhl or Brown) to take O’Connor’s place. As for Roberts, he still could be the Chief Justice, though that’s not clear, either. After all, in 2005, he had the benefit of six weeks as the nominee to replace O’Connor—when he had a public stage to show he was more than ready for the leadership role--so it was an easy call for President Bush when Rehnquist died. The great irony, looking back, is how Democrats’ success in targeting the women and minority candidates led President Bush to put two white men on the Supreme Court.
My question for Jan is what does she think the decisions will be in the four most watched cases of the year:
The Partial Birth Abortion cases
The School Integration cases
The McCain-Feingold case
The EPA/Global Warming case
Answer: I doubt my predictions will surprise any of you who’ve read my book (and for those of you who haven’t, I highly recommend it). In Supreme Conflict, I argue that George W. Bush succeeded—where past Republican presidents failed—in achieving clear change on the Court. The Roberts Court, with Justice Alito replacing Sandra Day O’Connor, is more conservative than the Rehnquist Court. Alito is more conservative than key swing voter O’Connor; Roberts is, if anything, more of a principled judicial conservative than Rehnquist. And both Roberts and Alito will be highly effective in making their points without pushing away a wavering justice. We’ll see that this term.
In the first two cases, involving perhaps two of the most divisive and controversial issues of our time--abortion and race--the Court with Roberts/Alito will reach a different result than it would have with Rehnquist/O’Connor. The Court doesn’t have to overturn Roe or Casey or Grutter (obviously not even at issue in these cases) to have an impact, to change the debate and to set itself on a more conservative path.
Based on the arguments, I think the Court will uphold the federal partial-birth abortion ban, and I expect it to overturn Stenberg, which split the Court 5-4 in 2000, with O’Connor casting the decisive vote against similar laws in about 30 states. Now I know that Anthony Kennedy can back away from his position in Stenberg. And I know lots of you (ok, probably most of you) think he will. I don’t. He was outraged by Stenberg. He clearly felt had by O’Connor and Souter. He believed they’d walked away from the deal the three struck in Casey. To Kennedy, Casey meant that legislatures still had a voice in the abortion debate. The government could make moral choices. But Stenberg, he believed, said the opposite. When coupled with his powerful dissent in Hill v. Colorado, it’s hard for me to see how Kennedy could view it so differently now.
I know! I know! It’s Justice Kennedy! He can change his mind! And he may. But even if he does, that means we’ll get a narrowly written opinion that still upholds the law. That’s what most seasoned court watchers are predicting—including people with very good track records, like the National Journal’s Stuart Taylor. (I really should know better than betting against Stuart.) Still, it’s hard for me to see how it will be so narrow—with exceptions written in that the law didn’t have. If the court wants to upholds the federal law (the bipartisan federal law—even Patrick Leahy and Harry Reid voted for it), the principled approach is to overrule Stenberg. The state laws at issue in Stenberg are practically indistinguishable from the federal law, and opponents point out that Stenberg is not quite hallowed precedent yet. It’s a 7-year-old case that divided the Court 5-4, with vociferous dissents, including from Justice Kennedy, a justice who took issue with the majority’s interpretation of his own opinion in Casey. (In fact, it’s less settled than those the death penalty cases—for juveniles and mentally retarded killers—the Court overruled a couple years ago, with AMK in the majority). If the Court does try to distinguish Stenberg—and narrowly construes the federal law--I’d bet it won’t even be 5-4. Roberts probably can get Souter, at the very least, to go along.
The race cases are easier to predict. On this issue, Kennedy—unlike O’Connor--has been a consistent vote against racial preferences. The arguments made pretty clear that the justices will strike down those programs by a 5-4 vote—with the Court again taking a different course than it would have with Rehnquist/O’Connor. They won’t overturn Grutter—there’s no reason for them do to so.
As for McCain-Feingold, I’ll wait until the arguments, but I’d guess the Wisconsin Right to Life group (joined in briefing by the American Civil Liberties Union and other organizations) will prevail. Again, Alito for O’Connor could make the difference. Kennedy is strong on First Amendment issues, and I’d expect Roberts and Alito to see the case like Rehnquist saw McConnell.
And on global warming, I think the justices will side with EPA, which contends it doesn’t have authority to regulate greenhouse gases as air pollutants. But how? The argument took so many different paths—beginning with the issue of standing and whether the states and environmental groups even have a legal right to sue at this point—that I can’t venture a guess on the reasoning. Four of the justices—Roberts, Alito, Scalia and Thomas—seem prepared to say the challengers don’t have standing. That leaves us looking to Justice Kennedy, once again.
I agree, with a caveat
by BoBo
I think that the conservatives will carry the day in all four of the mentioned cases, but I think this will cause a Democrat backlash. I think all of those four cases will be announced during the last week of the present SCOTUS term. Within hours, we will hear the Dems screaming bloody murder, "Look what that ratfink Bush has done, he has put two fascist justices on the Supreme Court! We will never allow another neanderthal like Roberts or Alito to be confirmed again!" To make it worse, the Dem presidential candidates (Clinton, Obama and co.) will go on the offensive and use the decisions to bash Bush for the next two years. The end result will be that not only will it be harder to confirm another conservative judicial nominee to the Supreme Court, it will also be more difficult to confirm reliable conservatives to the courts of appeals. This is one of the reasons why I want Keisler confirmed before the end of June. I don't want his nomination to become ensnarled in the Democrat outrage I see ahead this summer when those four decisions are released, especially the decision in the abortion one.
Courtesy of How Appealing
by BoBo
Here is more news on Kyl's move to switch the D.C. Circuit's 12th seat to the 9th Circuit:
http://pda-appellateblog.blogspot.com/2007_03_01_archive.html#3668258858...
"The 29th seat might resolve a dispute between Feinstein and the White House over the existing vacancy, which she maintains should go to a Californian.
The White House initially earmarked the seat for an Idaho-based judge but has withdrawn its nominee, William G. Myers III.
"Now Bush can appoint one judge from California and one from Idaho," Hellman said. "That might satisfy Feinstein.""
I disagree with this analysis. I think Feinstein will demand that the new 29th seat on the 9th Circuit be a California seat. That is why I think she agreed to the switch to begin with - it would give her another seat to fill with a liberal. I don't think there is any chance that Bush will get to fill the new seat with an Idaho judicial nominee (btw, Bush would be a fool to try and fill the new seat with Myers again).
All Good Things Must Come To And End
by EzOnTheEyez
Including our three part series with Jan Crawford Greenberg. It's another great contribution from Ms. Greenberg. However I must quibble with her on one case - the EPA case. I think we lose Kennedy on EPA while holding him on the other 3. Remember, Kennedy is out to save us and the world from ourselves. No need to let a little thing like standing to get in the way when you have Superjustice Anthony Kennedy to save the day! LOL :-)
I wouldn't be supportive of Gonzales for the Supreme Court, but after his service as Attorney General and the strong correlation between administrative service and steeled judicial conservatives on the court, I think that I'd no longer be opposed to it either. Count me neutral. But also count me as more pro-Miguel Estrada over Alberto Gonzales.
However, liberal opposition to AGAG is what has increased. His confirmation hearings would be a circus and they would turn it into a 3-month long inquisition of Dubya Administrative policies on absolutely everything.
agree Bobo re: 9th's 29th
by Dienekes
though Washington could make a strong case for a 3rd seat, I think. that doesn't help the chances of getting a good judge though, since Murray and Cantwell are a near mirror of Boxer and Feinstein (though Murray isn't as aggressive in her stupidity as Boxer, and Cantwell, as the Relatively Reasonable One in the WA pair, may possibly also be more reasonable than Feinstein on judges, but I am not sure about that).
In any event, I don't think Bush will get to fill more than one of the seats anyway.
Another judicial hearing
by BoBo
http://judiciary.senate.gov/hearing.cfm?id=2595
The hearing agenda says Durbin will preside. That probably means that it will be for Illinois district court nominee Frederick J. Kapala.
Partial dissent
by TIU
We won't be waiting until June for all of those. Based on past practice, the Carhart and Duke decisions will be handed down by the end of March.
To BoBo
by TIU
That post of mine was meant to be a reply to BoBo's comment.
Possible Females
by jtp7
A little off topic but I was looking at other female contenders for any SOCTUS vacancies and came across Kimberly Ann Moore, a Bush judge on the Federal Circuit. Other than her young age, do any of you think Kimberly Ann Moore has any problems. She seemed to have bi partisian support when ever she was orginially confirmed (important in the Dem Senate) and I especially liked her science and engineering background at MIT.
Congratulations
by maccc
Congratulations on a successful Q and A for confirmthem. The questions were erudite, and the answers informed and insightful.
Bobo: D.C Circuit 11th seat, 9th Cir. 29th
by Outsider
I quite agree with your analysis. Feinstein and Boxer obviously won't allow the prospective 29th 9th Cir. seat to go to Idaho: in that case there would be no benefit for them in making the deal. In any case, the vacant 28th and 29th (Califoria) 9th Circuit seats should be at the very bottom of Bush's Circuit Court nomination list.
The importance (and it is huge) of the prospective deal is clearly to break the impasse on Keisler's nomination. Keisler and the 4th Circuit should have the absolute medium-term prioriy after Hardiman and Livingston are out of the way (and Southwick after Keisler). Also, it would eliminate a D.C. vacancy for a possible Democrat President in 2009.
If the deal is consumated, the Administration and Senate GOP must nail down that Keisler's confirmation is an integral part of it, or Senate Dems. may well renege in their typical hardball dishonorable fashion.
jtp7
by Dienekes
I don't think we know anything about Judge Moore's ideology, and the Federal Circuit doesn't deal with controversial Cnstitutional issues. and she's only about 40, which wouldn't be pleasing to the Dems, I don't think.
Another name I noted while likewise thinking about potential female nominees was Julia Smith Gibbons of the 6th Circuit. I'm wondering why we've never heard her name on any list? Is she too moderate? Moreso than Callahan or Mahoney? Her resume (UVA law, clerked for a 6th COA judge) seems to be equal to if not better than just about any of the other women. Granted, she served almost 20 years on the district court compared to, say, Clement's 10 (almost all of which were during Clinton's term, so she couldn't have been promoted any quicker, which perhaps implies Gibbons wasn't as deserving of/desired for a promotion), and she's a member of the Rotary Club while Clement is a member of the Federalist Society. On the other side of the ledger there's the accusation that the Dems delayed her confirmation to effect the Grutter panel (although I think Leahy rightly proves that false, that the accusation would be made perhaps speaks well of her) and the fact that the Dems didn't name her on their disingenuous lists (of course they didn't even name Callahan I don't think, which just shows how pathetic their suggestions were). She turns 57 this fall, 2 years younger than Clement, and like Clement, was unanimously approved by a Dem Senate.
sorry for all that rambling for what I anticipate to be a simple 3-word answer "she's not conservative"
"A more forceful leader—i.e., Trent Lott"
by Dan McLaughlin
If that's not an epitaph for Bill Frist, I don't know what is.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
Thx
by AndrewHyman
Thanks to Jan Crawford Greenburg for visiting us here in our little cyber-hangout. :-)
We wouldn't have to be here if the courts would simply respect statutes except for those that clearly violate the original meaning of the Constitution.
Anyway, we'll see what turns up this summer, in terms of SCOTUS vacancies. May they all live much longer, some as justices, some as retirees.
http://www.slate.com/id/2161260/
Here is Dahlia Lithwick seemingly laying blame for the recent U.S. Attorney firings at the feet of Arlen Specter and SJC counsel Michael O'Neill. At various times, O'Neill (a former Clarence Thomas clerk) has been mentioned as either a possible D.C. Circuit or Fourth Circuit nominee. I think his chances for confirmation in a Dem senate are now nil. Sorta sad since he has such a nice resume:
Also
by AndrewHyman
we can forget about Karen Williams, according to this article today in the Baltimore Sun:
Karen Williams, convicted of prostitution and parole violation last year, has used drugs for 21 years. But she also suffers from a bipolar disorder, and the combination has put her at a distinct disadvantage.
Maybe it's a different Karen Williams, though. :-)
Colorado redistricting case
by Dienekes
maybe I'm an idiot, but what is the differnce between the plan drawn up by Colorado legislators that the Court this week said could not supercede a previous court-drawn plan that (of course) favored Democrats and the plan drawn up by Texas legislators that the Court last year said could superced a previous court-drawn plan that (of course) favored Democrats????
Colorado case
by jtp7
I wondered the same thing. After I did some reading on the case, it appeared that there was a clause in the CO state constitution that said that redistricting can only be done once a decade. TX had no explicit prohobition. The plaintiffs were arguing that the judge drawn lines didnt count against this limit, that it should only be legislative lines that count towards this limit.
Roberts
by rightwingextremist
I agree with most of what Jan writes except I do not believe conservatives would carry the day in the EPA case. I would love it if Jan turns out to be correct, though.
I am very dubious about one thing Jan writes, however. She says, "Roberts is, if anything, a more principled judicial conservative than Rehnquist." I don't buy it. Rehnquist said Miranda was unconstitutional. (But Rehnquist did chicken out in the Dickerson case, however.) I don't think Roberts would have ever said Miranda was unconstitutional. I'm sure there are many other issues that Rehnquist was MUCH more conservative that Roberts will be. Though I was initially wholly pro-Roberts, I now have much pause in saying he's going to be like Rehnquist. I'm now beginning to thik that Ann Coulter was right about Roberts all along. Roberts is very possibly the most intelligent jurist we've ever had in the United States, but he'll probably turn out to be an O'Connor. (The Philip Morris case is a great example of that, I believe.)
Thanks, Jan. This was very insightful!!
thanks
by Dienekes
so its a matter of one had a specific constitutional provision and the other did not? missed that somehow, and when I read the once-per-decade argument that just confused me further because I remembered the Texas Dems had made the same argument. its just that it had merit in the Colorado case and not in the Texas one. glad to know I'm not crazy, I just can't read :P
Dienekes
by Matthew Friendly
There was some discussion of Julia Smith Gibbons here a while back. There was some differences of opinion: some stated she was a solid conservative, while others (one in particular i remember who said he practiced before her in Tennessee) said she was less than reliably conservative. So take it for what it's worth....
jtp7
by Matthew Friendly
Yes, I too am impressed with Kimberly Moore as a possible SCOTUS pick down the road. She's 38-39, so she has plenty of time. Some may question her because she's on the Federal Circuit, but I have no problem with that. As for her judicial philosophy, I assume she's gotta be somewhat conservative given she chose to teach at George Mason Law School.
BoBo
by Matthew Friendly
Boy, that was an interesting hatchet job on Michael O'Neill, huh? I agree that it seriously hurts his reputation, whether or not it's true. There goes Specter hurting conservatives once again!
Colo redistricting case
by cubsfan
One quibble with the comments about the Colo case. The Supreme Court was dealing only with a standing issue on whether the plaintiffs could allege the Colo. Constitutional provision violated the election clause in the US Constitution. Dienekes original post seemed to imply that the US Supreme Court was being inconsistent with its Texas redistricting case. So not only was the Colo. constitutional provision a different factor, but the high court never really got to the substantive issue.
BoBo
by BillM
Anyone connected in any way with the recent US Attorney firings will never be confirmed to anything, and this includes the replacement Attorneys.
Need to have their resumes out in the private sector in time to begin interviewing on the afternoon of 1/20/09.
Oh, yes! Thanks,
by BillM
Oh, yes! Thanks, Jan!!!
JRB!! JRB!! JRB!! :)
US Attorneys - what's the big deal?
by Dienekes
really.
It's a faux scandal aimed at
by Thomas Alan
It's a faux scandal aimed at a Republican facing re-election in a tough state. But, as Libby just found out today, even faux scandals sometimes have teeth.
Re #26: continuing JRB mania; Alito clones
by Outsider
For reasons that I've elucidated several times in the past few years, I cannot join in this widespread enthusiasm for JRB to the S.C. She has indeed been pronounced and volatile in her public pronouncements, too much so. Give me Alito clones, if they exist, for the next 2 possible vacancies. Proven rock-solid over many years.
Do Alito clones exist? Maybe not entirely, alas. Next best thing: Perhaps Easterbrook, K. Williams. Any other suggestions in this vein?
We couldn't get Alito through today
by Thomas Alan
Alito only got 58 votes, and 5 of his votes are gone now. If Bush gets another vacancy, he will need to pick a less overtly conservative justice this time around.
Sad but true. The talk of Bush picking a fight with JRB is just craziness if it's true. If the White House wanted to duck a fight with Miers when they held all the cards, why would they want to pick a fight now that the Dems are in power?
It's completely backwards political logic.
Re # 30
by Outsider
Yes. JRB is politically impossible, in addition to several other liabilities. Aan you're right, Alito probably wouldn't make it past a Democrat filibuster now.
The only solution I see is to fool them with a woman or Latino they can't successfully oppose. Williams? Maybe, except for Dickerson. Sykes?
outsider
by Dienekes
I doubt Williams would be confirmable based on Dickerson, her connection to Strom Thurmond (the fact that Jim Clyburn supports her will be ignored), and several other cases/things including the general impression of conservatism.
I think Sykes is at the very best a 50-50 proposition, since she got 20-25 nays in a 51-49 R Senate. I think it is at the least possible they could manage 40 for a filibuster.
Joy Clement I think is the best bet, probably followed by Maureen Mahoney.
Slim pickings. Guaging support for those others is certainly worthwhile though. We know Graham would fight for Williams, and Specter apparently likes her too. Sykes might be worth a shot if Kohl is on board. Corrigan and Batchelder might be worth a look too.
But I think Clement is the best bet, because I think she'd keep all the Republicans plus Ben Nelson, Landrieu would I think almost certainly be on board, as well as other red state Dems up for election like Pryor, perhaps Rockefeller and Baucus, Johnson if he's healthy. Byrd would likely support. Lieberman might. That means just 3 more to bypass a filibuster.
She was on the original WH shortlist of 5. Roberts and Alito are already on the bench, Luttig is too conservative and a white male. Wilkinson might have an outside chance, but he's also a white male. That leaves Clement. It would probably be harmful to any Dem presidential hopeful (in the general, but their kook base will demand it and so they're in a catch-22) to engage in a filibuster of a nice, attractive female who's already been portrayed as moderate by the media and who was confirmed unanimously by a Dem Senate.
Of course, we've barely looked beyond the bench apart from Mahoney, so there may be someone out there we haven't heard yet.
Sykes
by Thomas Alan
Sykes is the only person I see that survives the process of elimination. She has the conservative credentials that the White House seems genuinely interested in, satisfies the identity politics issues, has divorced the most controversial aspect of her personal life (if she were still married to a conservative talk-show host we wouldn't be talking about her), looks non-threatening, hasn't written any particularly controversial opinions, and doesn't have the paper-trail full of surprises that comes from working in an administration. In short, the Democrats would have a difficult time finding an excuse to filibuster her.
The only real question about her in my mind is whether she's ready for primetime.
I would also suggest Edith Clement, but reading Greenburg it seems the White House might be gun shy on her after our tepid reaction when that fiasco happened on Roberts' nomination.
re: tepid reaction
by Dienekes
I think the calculus has changed in that we no longer have a majority, much less a solid one, and we've already gotten 2 superstars through. for a 3rd pick in those circumstances, all we really need to look for is a reliable vote. If it is likely Joy Clement can be that, I don't think conservative groups would throw a hissy fit this time.
The bigger obstacle in my mind is whether whatever it was that caused the WH to feel she was too "self-promoting" forever disqualifies her with the powers that be or not. And it may, I just don't know.
Probably a bit of both
by Thomas Alan
The White House is likely to not want to make another mistake like they did with Miers. In OUR minds we might be more accepting of Clement today than we were two years ago, but that doesn't mean the White House particularly understands that we are in a more pragmatic mood now that the landscape has changed.
And you're also right, negative impressions of Clement herself from within the White House aren't going to help her prospects.
Either way, I don't expect a Clement nomination is very likely.
Sykes more probable than Clement
by BoBo
At this point, I think the White House is probably much more likely to nominate Sykes than Clement. I can't see the White House going back to a discarded candidate and saying, "oh, by the way, we know we told you in the past to forget about it, but we've changed our minds now." This White House in particular has not been very good at admitting past mistakes.
why BoBo?
by Dienekes
they came back to Alito.
Faulty analogy
by Thomas Alan
Alito was always the #1 choice within the White House. It was only President Bush's mistaken belief that he needed to appoint a woman that led to him being passed over the first time.
President Bush looked at Clement for the Roberts slot and simply passed over her on the merits. In fact it's been suggested that she was only on the list to please his sense of having more that white males in the process.
When it came to the second nomination, Clement was barely considered despite being on the short list only a few months before. Remember, for awhile the White House had no one on the short list because all the candidates had a disqualifying factor of some sort. If Clement were still in serious consideration, wouldn't she have become the obvious choice?
Look, I'd be pleased (with mild trepidation) if she were nominated because I think she'd be confirmed and turn out fine. However, the intangibles simply don't add up.
Sykes
by Outsider
Yes, she seems very good as regards age, gender, and confirmability. But the crucial matter is whether she would be a reliable and long-term solid 5th conservative vote. I don't know; her 7th Circuit record seems thin. What about on the Wisconsin S.C? Does anyone else have solid information or an informed opinion?
I have some trepitation because midwestern Republican appellate judges have been especially susceptible to leftward drift and the Greenhouse Effect after they ascend to the Supreme Court. Examples are Blackmun, Stevens and Stewart, and to some extent Burger. And Whitticker was just useless.
Sykes confirmation count
by Dienekes
was 70-27.
It's possible I may be excluding a couple that might still conceivably vote for cloture (though some of these are probably iffy enough to offset that), but I think there are basically 11 Dems that voted FOR Sykes in 2004 wouldn't be automatic nays (* = up for election in 08):
Bayh
Bingaman
Byrd
Conrad
Dorgan
Kohl
Landrieu*
Lincoln
Nelson (NE)
Pryor*
Rockefeller*
In addition, there are 4 Dems that are new since Sykes' confirmation that might have some small chance of being a yea vote (though I doubt it for the last 2 especially):
Casey
Tester
Salazar
Webb
And 2 Dems that voted against her that might for reelection (or health) reasons switch their vote, or at least not be a nay on cloture which is all we're really looking at here:
Baucus*
Johnson*
throw in Lieberman as a wild card, and that makes perhaps 18 (and its more likely to be 14 or less) Dems that aren't automatic nays. Meaning they have 33 firm votes against. They just need 7 of those 18 (assuming no R defections, and with Collins, Smith, Coleman, Warner, Snowe, etc, that's no safe assumption) to block.
We need 12 of a pool of at the very most 18 Dems. Including Sen. Johnson under the assumption that he won't be back to vote nay, I think Nelson, Landrieu, and Pryor are likely to be the only other fairly sure things. Can you find 8 more?
Byrd, Kohl, Rockefeller, Casey, and Baucus might be gettable for cloture. maybe Lieberman. Beyond that it gets tougher.
Assuming the opening came in the next six to eight months, a SCOTUS filibuster would be political suicide for the Dems.
It would end their majority in congress and damage potential Presidential nominees from within the Senate.
It just isn't going to happen.
Not the fake ones from above :-), but the true reasons why she is no longer seen as a likely candidate.
I've heard Strom Thurmond and I guess that's possible (given Pickering), but it seems like Clyburn testifying would take care of that.
I've heard Dickerson, but wasn't she specifically singled out in the SCOTUS decision for props for trying to apply the previous SCOTUS precedent?
fillibuster not likely
by skippy1
The Democrats are not going to fillibuster when they have a majority. All Reid needs to do it not call for a vote, but there would be too much pressure to hold off voting on the nominee. They can delay and delay a COA nominee because it flys under the radar - but that is impossible with a SC nominee.
Williams
by BoBo
Jan Crawford Greenburg specifically said that the White House was opposed to Williams' nomination for two reasons:
First, it thought that she could be viewed a constitutional "lightweight" because of her reversal rate. Greenburg did not directly address the Dickerson decision. To verify Greenburg's comments, it would be necessary to look at Williams' overall reversal rate in comparison to COA judges as a whole and judges on the Fourth Circuit in particular.
Second, Williams recused herself from an en banc abortion case because she knew the doctor involved. I don't think this is as much of a White House problem as it is a James Dobson/Pat Robertson problem. I don't know how you go about changing their minds about Williams.
Sykes v. Clement
by BoBo
As far as I know Sykes was not passed over due to any of her personal characteristics. It was a simple case of Alito's resume being far superior to her resume. However, if Greenburg is correct, Clement was passed over due to what the White House viewed as a personality flaw, her "self-promotion". If the White House dismissed Clement by telling her, "we're sorry but we don't think that your personality is what we want," I don't know how they can ethically go back now and change their tune. Clement is still the same person she was in 2OO5, unless she has had a personality transplant since then.
Disappointed
by aurel
I'm a bit disappointed with you, ladies and gentlemen! From what is being discussed here, insufficient numbers of you have studied Jan's book as diligently as they ought! The book is a must-read for us SCOTUS junkies!!
The lessons, if we can trust the book's reliability, can be summarized (I'm doing this from memory, so go ahead and correct any mistakes, are roughly as follows):
1. There was a considerable desire on the part of the Bush White House to appoint a woman and/or minority for at least one of the available seats, particularly because one of the seats was O'Connor's.
However, there were not many good candidates, particularly compared to the quality of the white males.
The President was favorable to Gonzales, but Gonzales himself did not want to be nominated as he believed this would damage the President given the animosity from conservatives and from liberals because of the war on terror. Estrada was very high on the lists, and Harriet Miers asked for him to be included in the process, but he flat-out refused, according to JCG even saying that if the President would call to tell him he wanted Estrada to be nominated, Estrada would have said "no" to the president. Given the personal tragedies that befell his family, Estrada simply did not want to be considered. No other male minorities were on the short-list.
Among women, the same message as Estrada's, was conveyed by Maura Corrigan, who would otherwise have been a strong contender. Joy Clement was on the shortlist, but simply didn't compare academically to the brilliant white males. A fine federal appeals judge, but not SCOTUS-material. Also, it didn't help matters that she was perceived as "haughty" (according to the book) by some on the WH Staff. Given her age, her moment has passed and she will not be nominated. Alice Batchelder had a minor ethics issue because she ruled on a company her husband her stock in (or something along those lines). Not really a big issue at all, and something which happens frequently, but the WH was obviously focused on a nominee without such easy targets.
It's strange, perhaps that Mrs. Williams didn't get more play in the book. I know for a fact that she was seen in a positive light in Scalia's chambers at the time. Of course, her husband being a wealthy Democratic trial lawyer wasn't helpful. Plus the things BoBo mentioned. I think she would have been a good vote on the court, but there is a froideur about her.
Mahoney is pro-affirmative action in addition to other suggestions of insufficient conservatism, and thus wasn't a plausible candidate. I have been very afraid that she might be a contender, but the book talks little about her. The book also says little about Callahan, which, again, is a good thing!
Diane Sykes was seen in a positive light, but again her family situation was, as Jan put in the book, complicated, which made now the wrong time to nominate her. She may be the one to watch for the future. Although, again, as we know she does not have the same stelllar resume as the best white male candidates.
JRB was veto'ed by the Democrats. As was Priscilla Owen, i.e. the Democrats would have tried filibustering them.
2. It's, then, the absence of a compelling, available candidate among minorities and women, that made the President turn to Roberts, Miers and Alito. With respect to the men, Wilkinson is done because he's too old now, and he leaked his interview to the press afterwards, so he won't be considered again by this President. Luttig's tragic story we know and is well described in the book.
The lessons for the future are that, if there were to be another opening during Bush's term, it would be very hard for them to fill it. They really would not be able to nominate a third white male, but there still isn't a good alternative.
Moore
by Dan McLaughlin
The advantage and disadvantage of service on the Federal Circuit is that she can amass judicial experience without building a paper trail on constitutional issues.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
Would She Be the First?
by EzOnTheEyez
Have we ever had a judge from the Federal Circuit on the Supreme Court?
If she's also a staunch conservative on other issues, that the Supreme Court might need someone with her background and expertise in technical areas might be a strong selling point in addition to the judical experience she is racking up.
No one here has provided
by BillM
No one here has provided many details on Sykes, so I'm currently forced to dismiss her as a fine CCA judge, but not of SCOTUS caliber, and liable to drift once she's spent some time in the "bubble".
BillM
by EzOnTheEyez
Everything I've read about her suggests that she is sharp and a solid judicial conservative. I haven't really analyzed her opinions myself, though.
Kimberly Ann Moore Goes to Church With Scalia
by EzOnTheEyez
Maybe there's something in the Holy Water at that church that makes them into great strict constructionist/originalists? :-)
EZ
by BillM
Thanks, that sounds good, BUT, we also heard much the same about Stevens, Blackmun, AMK, SDO, and of course, DHS.
Something about these heretofore "solid", highly vouched for Western & Mid-western judges makes them go cuckoo if they haven't been publicly tested/blasted and previously been exposed to D.C. toxicity and never wavered.
We KNOW what we'd get from JRB or Jones, and unfortunately, also from Mahoney. Callahan absolutely seems like the reincarnation of AMK, without the delusions of grandeur.
Sykes is soooo tempting to pick, but I think if forced, I'd have to go with Batchelder over her. As for Williams, I've always been concerned how she could've been a judge for 15 years w/o sending ONE clerk on to SCOTUS. And her resume awful thin, tho her record's pretty good, supposedly.
But JRB is orders of magnitude better than any of them, as Owen likely would be too, and JRB is orders better than Owen as a *NOMINEE*
If JRB is nominated, I think Bush needs to keep Easterbrook on high visibilty alert. If Specter & Reid knows Mahoney's next, she has no chance. Gotta let 'em know you can go for the best diversity pick, or the best overall pick's on deck.
NO MUSH!
Thomas Alan
by BillM
Your description of Sykes seems to mirror the description of Kennedy back in '87.
Just sayin'...
BillM: why not go read all
by aurel
BillM: why not go read all of her opinions and then report back to us?
Aurel
by BillM
Because I don't know where to find them, and, as I have no legal background, might report back inaccurately if I did find them? :)
Plus, it seems to me the burden of proof should be on those advocating her. "Cheney likes her" doesn't cut it.
Don't get me wrong, I want her to be great on SCOTUS, but the historical evidence points strongly against it, based on what we seem to generally know.
Judging by Aurel's comments
by Thomas Alan
Judging by Aurel's comments in #46, I suppose that if another vacancy occurs, President Bush is just going to assume the fetal position and not nominate anybody ;)
Thomas Allen
by EzOnTheEyez
Screw the fetal position - nominate Colorado Supreme Court Justice Allison Eid!!! :-)
I have a feeling we'd soon discover that all Thomas clerks are proverbial "slam dunks!" :-)
Margaret Sullivan is a
by BillM
Margaret Sullivan is a military judge and also a former Thomas clerk whose resume appears superior to Sykes.
Again, I'm not picking on Diane. She certainly SEEMS to be OK, though we have no idea how she'll play on TV. If she's solid she'll be the ultimate stealth pick. But there is overwhelming historical evidence that she'll slowly but surely drift away, although I don't think she's a politician like Sandy, a drama queen like AMK, a secret Douglas fan like Stevens, or a kook like Souter.
It seems like many Repubs have swallowed the kool-aid that a defeat on a SCOTUS nom is the end of the world. Hardly. You just keep nominating steel after steel, and if it has to be the centerpiece of the next POTUS election, so be it.
But once you start talking about "confirmability", "no controversial cases, opinions or speeches", "no time spent in WDC or any Administrative experience", and " So-and-So says they're great", you're opening the door wide for Sandy The Younger.
It seems like some people want Roberts & Alito types w/o any evidence they ARE Roberts & Alito types. I just don't see how such a creature exists.
We all agree Easterbrook is the best person on merit, tho some inc. myself worry a bit about him as a *NOMINEE*. So nominate him, and tell the Dems the batting order goes him, JRB, PClem, then an election with "obstructionist Dems trying to politicize SCOTUS" sharing top billing with Iraq.
But if the Dems get one whiff of Mahoney or Callahan, that's it.
If Reagan hadn't caved in on AMK out of fear that "there's an election coming up", we either get Silberman thru or Poppy beats Dukakis even worse by promising to renominate him. Hell, that might have even avoided Souter later on.
Nixon won in '68 partly on the Warren vacancy, and say, there was an unpopular war going on then too. And maybe Ford squeaks by Carter if he'd shown some spine w/Bork, Arlin Adams or Thomas Gee back then. And even if he still loses, how could anything Carter would've done turn out worse than Stevens?
Compromising on SCOTUS vacancies loses for judicial conservatives EVERY. SINGLE. TIME.
Doug Ginsburg's the only stealth candidate who would've turned out good, and his resume was a bit more impressive than Sykes'.
A few points:
by Thomas Alan
1. Roberts was a stealth candidate. He spent his entire adult life playing his political views close to the vest.
2. If Democrats successfully defeat one nominee, the next one will be even easier for them. Estrada's filibuster is proof of such momentum. Any political price they pay will have diminishing returns afterwards.
3. We also don't have time to screw around with several nominees. Even if Republicans retain the White House in 2008, I only trust Gov. Romney to continue sending up quality nominees and I'd put his odds of winning at 25% at this point.
BillM, well she votes in
by aurel
BillM, well she votes in line with Posner and Easterbrook. I don't think she is a brilliant jurist like them, but I am hopelessley political incorrect and would nominate the best candidate irrespective of skin color or gender. At that moment, those best candidates happen to be white males. I would nominate Paul Clement if I were President Bush and there was another opening.
fantastic interview, fantastic book. thanks for your time. and thanks Alexham for facilitating it.
from Jan's lips to Justice Kennedy's ear...