ConfirmThem

Supposing Obama wins, who would be the best judges he could choose from our perspective? Which of the "liberal" judges have the most conservative respect because of

1) their intellectual ability
2) their moral integrity and independence
3) their willingness to take conservative arguments seriously?

Doug Kmiec.

Unless its Traxler of the 4th circuit, or one of a couple other reasonable Clinton CoA nominees, be prepared for the worst.

Remember this?

http://query.nytimes.com/gst/fullpage.html?res=9D02E6DF1F3FF934A25754C0A...

It is possible to imagine circumstances under which the warfare might resume someday, but that prospect appears unlikely. While Mr. Clinton stumbled a bit gracelessly into both nominations -- settling on each after months of a painfully public trial-and-error selection process -- it was no fluke that his serious consideration was reserved for candidates of moderate, mainstream views. Consensus, rather than confrontation, is the order of the day.

Significantly, the most heartfelt criticism of the Breyer nomination came not from Republicans but from liberal Democrats, who believed that as the first Democrat in a generation with the chance to fill Supreme Court vacancies, the President was obliged to bolster not the Court's well-populated middle but its depopulated left. But liberals could hardly attack the nomination publicly, so they watched silently from the sidelines.

Both Justice Ginsburg and Judge Breyer are highly respected judges who, while their own political leanings are quite liberal, nonetheless reject the classic liberal constitutional view, as exemplified by the Supreme Court under Chief Justice Earl Warren, that the courts should function as engines of social change.

In ED Wisconsin

http://www.whitehouse.gov/news/releases/2008/07/20080715-3.html

I actually know something about the WI procedure. They use a "non-partisan" commission, and the two Democrat senators, Kohl and Feingold who are both on the SJC, have committed (?) to getting a nominee confirmed if he/she was recommended by the commission. I will try to figure out if Dugan was.

FYI from a brief online blurb from the Milwaukee Journal Sentinel:

Judge Dugan nominated to federal bench

The White House today nominated Milwaukee County Circuit Judge Timothy Dugan to be U.S. district judge for the Eastern District of Wisconsin, to replace Rudolph Randa who is retiring.

"I'm honored and humbled by President Bush's nomination and by the support I received from Congressman (James) Sensenbrenner and Senators (Herb) Kohl and (Russ) Feingold."

Linda Greenhouse, who is retiring, answers your questions here:

http://www.nytimes.com/2008/07/14/business/media/14askthetimes.html?page...

Say, did you know there was a recent study that found that Republican SCOTUS nominees who lack Washington or Executive branch experience tend to drift leftward once confirmed, while those that have such experience don't?

I wonder what the guy got paid to study ConfirmThem's archives. Maybe he can get a grant to study whether or not Bork would've been confirmed in 1986 to WHR's associate seat.

LG's sayonara column: http://www.nytimes.com/2008/07/13/weekinreview/13linda.html

LG on Judge Bork (snipped from my Sunday paper):

****************

The galvanizing battle over the nomination of Robert H. Bork in 1987, a conflagration at the intersection of law and politics that held the country spellbound for three months, was the most riveting public event I ever witnessed at close range. Although Judge Bork was, of course, defeated, in many ways the Bork battle has never really ended, with today’s ceaseless judicial confirmation wars being carried on by ideological combatants too young to remember the original.

President Reagan nominated Robert Bork, a well-known conservative, to the “swing” seat on the court being vacated by Justice Lewis F. Powell Jr. I knew Bob Bork. He had been a professor of mine at Yale, an urbane and witty man who bore little resemblance to the instant portrait painted by his opponents. (“In Robert Bork’s America,” Senator Edward M. Kennedy famously said in response to the nomination, “there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.”) The day he was nominated, I left a message on his home answering machine. “Congratulations, and keep your sense of humor,” I said. “I think you’ll need it.”

His sense of humor failed him. As the hearings went on, he became testy and abrupt. When he said that serving on the court would be an “intellectual feast,” he was simply being honest. It would have been more politic, but less candid, to claim that he was motivated by a desire to serve the cause of justice. He and his supporters emerged from defeat filled with bitterness, persuaded that he had been dealt an unfair hand.

To the contrary, I thought then and think now that the debate had been both fair and profound. In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”

It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.

It is also a reminder of something I learned observing the court and the country, and listening in on the vital dialogue between them. The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.

**************

sigh....

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

The McCain/Obama judge link story pushes Callahan as a possible.

Her resume seems thin but she seems at least to be a law and order judge.

Any ideas on where she sits/stands on abortion?

In reading up on Callahan, I came across this blog post from stealthlawprof from back in Sept 2005. I like what he has to say about Karen Williams, and so now she's back on my favored list:

"More on names -- Karen Williams, Consuelo Callahan??
Names continue to bounce around with reference to the additional vacancy on the Court. Of course, blogs have no shortage of secret sources high in the White House (or other impressive public buildings). Among the names that seem to have active play right now are Consuelo Callahan of the 9th Circuit and Karen Williams of the 4th Circuit.

I claim no inside source at all. That disclaimer having been made, the Callahan rumor strikes me as a bit contrived, but the Williams rumor feels substantive to me.

Callahan is a demographic dream -- Hispanic woman -- but she has little beyond that to indicate why the President would be paying attention.

Williams has more track record because she has been on the 4th Circuit for 13 years -- yes, that is the 4th Circuit that is the most conservative appellate court in the nation. Someone has to have been voting with Wilkinson and Luttig to develop that reputation, and it appears it has been Williams. (This reminds me a little bit of 1986 when a Judge Scalia of the DC Circuit was nominated ahead of better-known colleagues from that court, including Robert Bork.)

I do not believe that judicial experience is a prerequisite for becoming a Justice; however, some indication that a person has thought carefully about the role of the Supreme Court in American government is a prerequisite. Among other places, that background can come from work in the Justice Department, law school teaching, significant litigation experience in the federal appellate courts, or service as a federal judge.

Judge Callahan's two years on the 9th Circuit were preceded by a number of years as a state trial and intermediate appellate judge. Those positions do not indicate much exposure to the national scope and impact of the Supreme Court's work. (Soon-to-be Chief Justice Roberts also had only two years as a federal judge, but that was preceded by extensive Supreme Court litigation experience and a number of very responsible assignments in the Justice Department.)

Judge Williams's longer stint on the 4th Circuit evinces more experience grappling with the larger issues of the role of federal courts and the Supreme Court. The only sort-of-smoking gun in her record is her opinion holding that a federal statute properly established an evidentiary standard in place of the Miranda rule (her decision was reversed by the Supreme Court -- United States v. Dickerson). Given the common theme of the Roberts hearings that Congress feels the Court lacks respect for it, Williams should be able to fend off any attacks based on that case. It is inevitable in the course of 13 years that one will make a decision with which a higher court disagrees; her mistake here, if any, was deferring to Congress more than the Supreme Court apparently thought was proper. ("Surely, Senator, you can agree that federal courts should give deference to Congress.")

Predicting is a dangerous game, and I ought to have enough sense to avoid it. Nonetheless, Karen Williams's name is one that rings true to me in this process. Watch to see if we become more familiar with it."

The ABA ratings for 4th Circuit nominee Glen Conrad were in as of June 24th. He was rated Well Qualified (majority), Qualified (minority). The fact that ABA acted so fast indicates thet Senate Dems have greased the rails for his eventual confirmation. They have already strung out his hearing for at least one month. Hopefully Leahy & Co. will schedule a hearing next week or the week after. They should also include 3 DJ nominees if we're lucky.

Soon we'll have to rename this blog Don'tConfirmThem

I shudder at the thought of the judges President Obama will send to the filibuster-proof Senate

This should give you a chill:

Statement Of Senator Patrick Leahy
On The Nomination Of Judge Consuelo Callahan
May 15, 2003
I have been disappointed that the Republican leadership has not found time to proceed to the nomination of Judge Consuelo Callahan to the United States Court of Appeals for the Ninth Circuit. This is another of the judicial nominees that Senate Democrats have strongly supported and whose consideration we had expedited through the Judiciary Committee last week.

Why? That's just Leahy talking out of his a--, which he does quite often. Callahan has proven to be a relatively conservative judge, certainly not someone the liberals can take comfort in having supported.

I believe in larger context Leahy was trying to scuttle JRB at the time he said that about Callahan.

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

I believe that the country is best served by having their judgeships filled.

And, if we were really being honest all of those times that we argued that "elections have consequences" then we need to push for a format that will allow judges picked by any President to be confirmed if the judges are qualified.

That doesn't mean much.

I believe Mr. Alito has the experience and the skills to be the kind of judge the public deserves – one who is impartial, thoughtful, and fair. I urge the Senate to confirm his nomination.

* Senator Frank Lautenberg (D-NJ),

You have obviously had a very distinguished record, and I certainly commend you for long service in the public interest. I think it is a very commendable career and I am sure you will have a successful one as a judge.

* Sen. Ted Kennedy (D-Mass.)

# Senator Frank Lautenberg (D-N.J.): Alito is "the kind of judge the public deserves--one who is impartial, thoughtful, and fair."

# Senator Bill Bradley (D-N.J.): Backed Alito "100 percent" and said Alito will "make a contribution that will stand the test of time." Said that Alito, as U.S.attorney, avoided fanfare and "inspired his office with a low-key sense of professionalism."

# Senator Ted Kennedy (D-Mass.): Alito has "a distinguished record" ... "[w]e look forward to supporting you."

From L.A. Times: "The same year, Callahan was part of a three-judge panel that unanimously rejected the claim of Catholic Charities of Sacramento that it should be exempt from a California law requiring employers to provide contraceptive coverage to employees. The group contended that the law violates religious freedom because Catholicism views contraception to be “intrinsically evil and a grave sin.”
The appeals court ruled that the statute “does not advance or inhibit religion.” Instead, the court said the law served to “eliminate discriminatory insurance practices that undermined the health and economic well-being of women.”
The court held that Catholic Charities did not fit within the law’s “religious employer” exemption because the organization serves the needs of all faiths and does not proselytize."
http://articles.latimes.com/2003/feb/14/local/me-judge14

The CA Supreme Court affirmed the Court of Appeal 6-1. The lone dissenter: Janice Rogers Brown.

She's had some good decisions on the 9th Circuit, most notably joining the right side in the Seattle school affirmative action case, some conservative positions in law and order cases, but on most social issues she's flying under the radar since joining the 9th, and the Catholic Charities case is at the very least a red flag.

FYI in today's WSJ's Opinion Journal on line:

http://online.wsj.com/article/SB121625042990560111.html?mod=opinion_main...

While Barr makes a few good points about potential concerns about McCain's view of judges, he 1. mixes up the role of a Senator and a President, and 2. more importantly, ignores the reality that a vote for Barr instead of McCain is just about the functional equivalent of a vote for Obama.

Even though I have some doubts about how good McCain will be on judicial appointments, I have NO doubts about how BAD Obama would be.

Reid just asked consent to confirm two disctrict judges (Gardephe and Matsumoto). Guess what happened?

Cornyn objected. He wanted 3 hours of debate instead of the 1 hour proposed by Reid.

The mention of Karen Williams reminds me that she has a very strong supporter in fellow South Carolinian and McCain lap dog, Lindsey Graham. Since Williams is thought to be rock-solid and Mahoney and Callahan are uncertain at best, it may make sense (if McCain is elected) to focus conservative energies on using Graham's influence to get the nomination to Williams. (I'm assuming that McCain will want to appoint a woman and that Janice Rogers Brown would be a pipe dream.)

Well, it seems like the two judges were confirmed:

Senator Klobuchar: (12:15 PM)
Propouned a UC that the Senate proceed immediately to Executive Session to consider Executive Calendar items 687 and 688. Further propounded that the nominations be considered en-bloc and be voted on by voice vote and then return to Legislative Session. (without objection) (nominations were confirmed)

Source: http://republican.senate.gov/public/index.cfm?FuseAction=FloorUpdates.Ho...

Does anyone know why those to NY district nominees were cleared today and the other two weren't? Or, if there's a schedule for handling the other two?

@Oz:

No, I disagree. "Qualified" for what? From my point of view, the liberal justices are perverting the constitution and the rule of law. Am I really supposed to regard Roe, Casey, Grutter, Kelo etc. etc. as law of the land? As legitimate rulings?

Conservative Republicans should never vote for the liberal judges Obama will nominate.

The Constitution requires advice and consent. I think Republicans should withhold their consent, and clearly state why they're doing so. Of course, I also think it's legitimate for the Democrats, who have a different interpretation of the meaning of the Constitution, to vote against our nominees on ideological grounds. But let them explain clearly why.

I do think, however, that filibustering judicial nominees is wrong and the Senate should have invoked the nuclear option. So elections matter in that a both a liberal or conservative majority in the Senate should get their way if liberal or conservative judges, as the case may be, are nominated.

But I don't think we should just roll over.

I don't know. They were the first on the list and I assume the other two will be confirmend next week.

My guess was along the same lines, although I was also musing about whether there were some "Democrat picks" and some "Republican picks" in here, given the NY arrangements.

That said, this Senate gamesmanship is unbelievably silly. Just confirm them all and get it over with. Using real live flesh-and-blood people as pawns is pathetic.

Very good thinking. I think it would be a wonderful idea to push Graham to push McCain to nominate Williams to SCOTUS. Still, my order of preference would be JRB -> Estrada -> Williams. Should the first two somehow not get through the Democrat controlled Senate, Williams would stand a stronger chance.

I have always been a big Williams supporter for SCOTUS.

That having been said, there has always been the question of Williams' husband being a Democrat.

On the other hand, that might help her through a bit as well.

I am starting to think, though, that we won't see any retirements right away even if Obama wins. I think the justices like their jobs a bit more than everyone else thinks they do and I'm starting to think that there might be something to the idea of Stevens going for the record of longest serving justice.

Even in the very unlikely event that Obama somehow loses the Presidency to McCain, there is simply NO WAY that the enhanced liberal Democratic majority would even entertain such nominees as Karen Williams.

We're taking about the potential fifth conservative vote on the Court.

If McCain is elected, I would expect the liberal justices to hold on to their seats.

If a vacancy nevertheless arises, the liberals will wage all-out war. And they will win it.

So someone like Consuela Callahan is really *the best* that we could possibly hope for.

PS: Justice Ginsburg has hired clerks for OT10 already. Doesn't look she is planning to go anywhere even when Obama is President.

I am not sure if there will be many openings. Perhaps Souter.

Consuelo, not Consuela.

is that Souter could well be the first to retire--09?

Please remind me how much longer Stevens has to serve to achieve the record, how ever dubious. That would determine whom I would guess next would retire.

As far as RBG goes, it's been noted here numerous times that the hiring of clerks does not necessarily indicate longevity on the bench.

BTW, yet another district court nomination yesterday, in the Eastern District of Virginia.

http://www.whitehouse.gov/news/releases/2008/07/20080717-5.html

Another Webb/Warner deal? Anyone have any info? It will be interesting to see if any of these go anywhere; I'm not holding my breath.

I advocated nominating Williams in 2006, had a vacancy occurred then. At the time, several people here made very persuasive arguments that Senate Democrats would block her confirmation. If there was substantial doubt that Williams could be confirmed in '06 in a 55-45 GOP Senate, what in the world makes anyone believe that she could be confirmed in '09 or '10 in a Senate likely to be at least 56-44 Democrat, if not worse?

If the Senate Dems have shown expertise in anything, it is in blocking GOP judicial nominees. My reluctant but unavoidable conclusion is that Williams will be virtually unconfirmable. That goes for any other strong conservative unless possibly a stealth nominee. But that is dangerous, as we learned to our chagrin with Souter.

I think this is the biggest red herring ever. Total "Insider" created fable. Souter will be moaning about how much he hates DC on his 90th birthday.

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

I was under the impression that Williams was passed over because someone in the Bush administration didn't like her.

Confirmability is then rather irrelevant.

If McCain wins and there is a vacancy, we should push him to nominate a strong judicial conservative. If that strong judicial conservative gets filibustered or voted down, we should push him to nominate another strong judicial conservative. And so on. The public will soon tire of Democratic obstruction of qualified and likable nominees.

Agreed. The failure of Reagan and his associates to stick to that strategy gave us Anthony Kennedy, and so we know how important it is to nominate judicial conservatives, no matter the circumstances in the Senate or politically with the Administration. The stakes are simply too high to fold on such an issue.