ConfirmThem

Maybe these Senators know something. Maybe there is a higher chance of a vacancy then many of us realize.

I still think there will be a vacancy this summer. I know none of the three (Souter, Stevens and Ginsburg) will want to go, but I think the chance is high one will feel the need to go:

Stevens is 87 years old. That is VERY old. He may feel retiring under a GOP prez but a Dem Senate is the ideal situation. Oh, plus, he is old, getting tired, slower, and at 87 is, well, did I mention OLD!

Souter is wanting out of Washington.

Ginsburg's health is a question mark.

Then there is the fact that if (1) Justices don't want to have two retirments in one year and (2) don't want to retire in an election year, then if one of these do not retire now, one of them won't be able to retire until 2011, four years from now. And my sense at least one of them won't want to commit the next four years to the SC.

Ginsberg is only leaving in a body bag.

Stevens and Souter, though, might decide to call it quits voluntarily this June.

Can someone please post the whole Roll Call article?

I think the chances that there is a retirement this summer are almost nil. A lot depends on just how partisan Stevens is. Many people on this site hope that Stevens will retire under Bush II because a Republican appointed him. I disagree with such a perspective. Look at Harry Blackmun - appointed by Nixon and willingly replaced by Clinton. In addition, one of his former law clerks, Joseph Thai, has stated categorically that Stevens will never retire under Bush II because he regards Bush II as an illegitimate president due to Bush v. Gore. Also, Stevens appears to be in good health, both mentally and physically.

As for as the others, they all have good reasons to stay put.

Scalia - why should he miss a potential conservative renaissance on the court?

Kennedy - why should he give up being the most powerful of the justices due to his swing vote status?

Souter - why let the conservatives destroy all the precedents which his idol Brennan helped to create? Who would be left to fight Scalia in oral arguments?

Thomas - same as Scalia.

Ginsburg - similar to Souter - why let a conservative replacement destroy all of your prized liberal precedents?

Breyer - same as Ginsburg.

Roberts - What? Retire so soon without making a mark?

Alito - same as Roberts.

Were Thai's comments in regard to the first term of Dubya since that was the term Bush v. Gore created? Or do they cover the whole eight years? When did he make those comments?

http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1163449249876

"Former Stevens clerk Joseph Thai says he thinks Stevens will do all he can to avoid having his successor picked by a president he believes did not legitimately win the 2000 presidential election. In Bush v. Gore, which determined the outcome of the 2000 election, Stevens wrote a scathing dissent."

This article was published November 14, 2006. That tells me that Thai thinks that Stevens does not think that Bush would've won in 2004 without the victory in 2000 that Bush v. Gore gave him. So Bush's 2004 victory is really superfluous in Stevens' reasoning - Bush is still an illegitimate president.

Supposedly Stevens was ready to retire under Clinton but became offended when Clinton sent out feelers to him encouraging him to retire. Then the conservative bloc (Rehnquist, O'Connor, Scalia, Kennedy and Thomas) offended him with their Bush v. Gore decision. This sounds like a man who holds grudges.

I guess it takes a SCOTUS vacancy story to get my juices flowing, so here I am once again. Every time I put the idea of a retirement to rest, another story pops up that piques my interest. The sad thing for those of us who want to see a vacancy is this. Every year about this time, a story like this rears its ugly head. I guess the age of some of our high court cadavers makes things more intriguing, but only minimally.

No one will leave the Court with Bush still in office. The liberals hate him and the conservatives know no one suitable could be confirmed. Even worse, el presidente's approval rating is in Dick Nixon territory. That's not a good recipe for originalist confirmation success. Let's face, Republicans in the Congress are not only on the run, they're in full retreat.

Better to keep this group of nine intact and hope for a President Fred Thompson in 2008. I'd rather see him choose someone suitable rather than see Bush choose Callahan. It's a shame too. John Roberts appears to be Scalia without the in your face swagger.

I don't think juducial philosophy is the end all be all decision for when to retire.

Sandy had to realize that a Bush II judge would overturn some of her precedents, and its not like she was in terrible health.

Sure, you do have the Thurgood Marshall "prop me up" types, but I don't know if all the justices buy into that.

I don't know how passionate Souter is about all these liberal decisions, but on the surface, he doesn't seem to care for them as much as others do.. It might be more about sticking it to the conservatives who hate him. Then again, he became eligible for retirement benefits in 2005, and he is a bit eccentric, so it could happen.

Ginsburg and Breyer are ardent lefties.

Stevens is a fed up, angry, leftie who thinks he's a righty, but thinks Bush is the devil.

The conservatives are winning and must know they won't be repalced by anyone as conservative as they are.

Kennedy is in heaven.

That leaves a bored, Washington hating Souter as the only justice who might retire, alive, in June.

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

I think O'Connor was very concerned about the ideology of her replacement. She had personal reasons, however, that outweighed her ideological considerations. Her husband was rapidly losing contact with reality due to Alzheimer's, and she didn't have a lot of time to make a decision. Added to this was pressure from Rehnquist, who basically told her for institutional reasons (i.e. so there would be only one retirement at a time) to retire immediately in 2005 or wait for another two more years.

Maybe Stevens or another justice also has a similar problem with a spouse or relative that would cause them to retire, but that appears to be unknown at the moment. However, ideologically, he has plenty of reasons to stay put

I think Souter probably hates Bush more than Stevens, but I think he's more likley to step down of his own volition during his presidency. I don't know that I put much credence in Thai's comments as predictive of what Stevens will actually do (or not do), though I am sure they were a relatively accurate reflection of what Stevens may have thought at some point. They probably reflect/are colored by Thai's feelings more, however.

People talk about how much Clarence Thomas was traumatized by his confirmation hearings, but I think Souter has been traumatized by how much he has been vilified by conservatives. Imagine having to listen to repeated choruses of "No more Souters!" That must be very hurtful and embarrassing to him. He may have decided to stay on the court as long as possible just to thwart his critics, just like it appears Thomas to do.

...just like it appears Thomas has decided to do.

as I've said before, if Stevens doesn't step aside during Bush's tenure, I think it has less to do with his feelings for Bush than his desire to set the longevity record. if he retires rather than dies on the bench, he'll step down this year or in 2012 (or perhaps, but I think less likely, 2013), regardless of who is president at the time.

then wouldn't the ultimate slap in the face be to retire late enough in the Bush tenure that the Dems wouldn't let Bush replace him?

is going nowhere. He sees his presence on the Court as preserving the ol' liberal bloc. But there's even more to it than that. He's a "player," just like Rehnquist was--not "voting his conscience" in every case, instead modifying his opinion to get a result he can live with. And he probably sees himself as the one who has the most will and skill to "handle" Kennedy and squeeze as many liberal results from Kennedy as possible. Look at the denial of cert in the post-Hamdan cases, for example. Supposedly Stevens wanted to grant cert but didn't because he was afraid Kennedy would swing back to the conservative side when the case was decided. I'm sure Stevens also enjoys the power of assigning the opinion when he's in the majority and Roberts is in dissent, and I'm sure Stevens thinks, again, that he has the will and the skill to use that power to maximize Kennedy's support for liberal decisions.

Didn't I read somewhere that Stevens is "fighting for the soul of Justice Kennedy"? If Stevens really has the passion that is implied in that phrasing, Stevens will be going nowhere until his health fails him, no matter who wins the election in 2008 (or 2012 or 2016...longevity does run in his family).

You seem determined to bash Rehnquist. With maybe the exception of Thomas, I think all of the present justices have been accused of not voting their conscience at some time. On many occasions Scalia has been accused of being results-oriented and not voting his conscience, especially in Raich where he abandoned federalism. Some have even claimed that Scalia and Thomas both abandoned their conscience when they upheld the federal PBA ban because the law went against their proclaimed love of federalism. Roberts has also been accused of it in order to further his concept of consensus. O'Connor and Kennedy have been consistently accused of it. So what? I do not think pure ideology exists due to human nature.

Human nature demands pragmatism at times in order to achieve results. Rehnquist was not the "player" you make him out to be. He frequently had no problem being in dissent. He was not a negotiator or a consensus builder. He did not try to lure people in like Earl Warren and William Brennan did. Some have claimed that his lack of success in making the court more conservative was a result of this lack of interest in compromise and persuasion. I find your characterization of Rehnquist as "player" who didn't "vote his conscience" very odd.

Bobo, it was not my intent in the above post to disparage Rehnquist. Note that I made no judgment about the propriety or impropriety of either Stevens or Rehnquist being "players."

However, as to the question of whether Rehnquist actually was a player, I thought that was settled: It's been said on this very forum that Rehnquist switched his vote in Dickerson so that he could soften the Court's opinion from what it would have been had he been in dissent.

Also, I note a distinction between what Rehnquist supposedly did in Dickerson, and what Scalia and Roberts have been "accused" (itself an odd choice of a word by you) of doing. Scalia admits a tension between federalism and stare decisis; Roberts has advocated narrower decisions because they tend to garner more consensus. This behavior is not aptly described as "voting against their consciences."

By contrast, if Rehnquist truly believed that Miranda should be overruled, but explicitly said in Dickerson that it should not be overruled, then that is definitely "voting against his conscience." But again, I'm not now questioning the propriety of this move.

Senators Leery of Another Supreme Court Fight
April 30, 2007
By Erin P. Billings,
Roll Call Staff

Just over a year after confirming President Bush’s second nominee to the Supreme Court, many Senators say they are holding their breath that they won’t have to entertain another high court vacancy this Congress, anticipating a battle royal that likely would bring the narrowly divided chamber to a partisan standstill.

“I hope we don’t have one,” said moderate Sen. Mark Pryor (D-Ark.). “If we have to, we have to, but I really hope we don’t.”

Democrats and Republicans alike agree that the thought of considering a third Supreme Court selection over the next two years is difficult to swallow, especially given the current political landscape that has thrust the Democrats into a narrow majority against a lame-duck Republican White House. What’s more, the politics of the 2008 election has already started to take hold of Capitol Hill, influencing the schedule and the legislative agenda.

“It would certainly suck all the oxygen out of the air,” said Sen. John Cornyn (R-Texas), a conservative Bush ally who sits on the Judiciary Committee, which considers nominations.

Senators said any high court vacancy over the next two years could easily overtake the chamber’s business, but the closer the 2008 elections get, the more problematic it will be for the two parties to consider, find consensus and confirm a new justice. In fact, most Senators said it might be impossible for Bush to successfully usher in a new appointment under the spotlight of a presidential election and with the clock ticking on end of his term.

“First, I really don’t think it’s going to happen,” said Sen. Jon Kyl (Ariz.), the No. 3 GOP leader. “But secondly, it really depends on the timing. If it happens a year from now, forget it.”

“An opening in the near term would precipitate a significant debate,” said Democratic Policy Committee Chairman Byron Dorgan (N.D.). “Most of us fervently hope this president doesn’t get a third appointment.”

Hopes aside, the possibility of another opening remains. Four of the nine justices have surpassed their 70th birthdays, and one of them, Associate Justice John Paul Stevens, just turned 87. Associate Justice Ruth Bader Ginsburg, 74, appointed by President Bill Clinton, successfully battled colon cancer eight years ago.

Bush successfully shepherded two justices through the GOP-controlled 109th Congress, first with now-Chief Justice John Roberts and early last year with the more controversial now-Associate Justice Samuel Alito. The two picks were widely praised in GOP circles for their legal and conservative credentials, while liberals cringed at the selections, as they feared the installments would shift the overall direction of the Supreme Court.

The slant of the Roberts court has started to come into view in recent weeks with a ruling narrowly upholding a federal ban on partial-birth abortion. The court is now considering another high-profile case over whether to overturn a key piece of the 2002 Bipartisan Campaign Reform Act.

Both Senators and outside observers believe Bush would try to install a third conservative-leaning justice to the Supreme Court, and in all likelihood, that selection would replace one of the more senior, liberal-leaning justices. Experts agree the president would most likely tap a female or minority to fill any opening and refer to a working list from his previous selections.

Among the possibilities are Diane Sykes, a federal judge on the 7th U.S. Circuit Court of appeals, Edith Brown Clement or Priscilla Owen, both of whom sit on the 5th U.S. Circuit Court, and Maura Corrigan, a Michigan Supreme Court justice. Other names that surfaced before Alito was tapped included Emilio Garza of the 5th U.S. Circuit Court and Michael Luttig and J. Harvie Wilkinson III, both of the 4th U.S. Circuit Court.

White House officials acknowledge any Supreme Court opening now would be an extremely heavy lift, noting that the confirmation of a justice to a lifetime appointment even under the best of circumstances is a tough sell. The best and perhaps only chance of winning a confirmation over the 110th Congress, they say, would be to offer a nominee with impeccable credentials, who even with a conservative legal bent couldn’t be deemed ill-qualified by the Democratic majority.

“A Supreme Court nomination in any environment, in any situation, is never a breeze,” said one White House aide. “It’s exhaustive from our standpoint. The last time, we took everything off the agenda ... it was all hands on deck.”

This administration official added that the White House challenge would be finding a candidate “who is phenomenally qualified and a true constitutional and legal master.”

“It’s never easy,” the official said. “It’s the most difficult lift. Putting in a new vice president would probably be easier.”

A nomination fight would put Senators from both parties in a vise. Conservative judicial groups would up the pressure on Bush and the GOP to tap a like-minded justice, while liberal base organizations would keep the heat on Democrats to push back against any nominee who would further shift the court to the right.

“There are huge, huge ramifications,” said Sen. Ron Wyden (D-Ore.).

Democrats have recently renewed their criticism of Alito, who replaced the more moderate Associate Justice Sandra Day O’Connor, while the scores of 2008 presidential candidates — including four sitting Democratic and two Republican Senators — already have put the issue squarely atop their political platforms. Stalling a Bush nomination for just a few months could mean the difference between a conservative or liberal-leaning justice, depending on the outcome of the next presidential election.

Because of that, many Senators wonder whether the chamber could advance any Supreme Court nominee this Congress. With a 51-49 Democratic majority, the margins are too narrow to ensure either side a smooth victory. Add to the challenge the fact that the Judiciary Committee, the first test for any Supreme Court hopeful, is one of the most partisan panels in the Senate.

“The fight might be shorter — the nominee wouldn’t get out of committee,” suggested a senior Democratic Senate aide.

Even so, Republicans believe the Democrats would face insurmountable pressure to allow an up-or-down vote on a Bush selection and could stall a vote only for so long without facing public backlash. An opening on the court could leave the bench temporarily at just eight justices, setting the stage for split decisions or even worse, a virtual slowdown of rulings.

Curt Levey, executive director of the conservative Committee for Justice, said he has no doubt that Bush will follow his own example, set with Roberts and Alito, and tap another conservative nominee. Still, Levey has no illusions about how great the political pressures will be if a vacancy occurs over the next two years.

“Being right in the middle of a presidential year, it would be enormous,” Levey said. “But even if it happens this year it would be enormous.”

Sen. Richard Burr (R-N.C.), a conservative first-term Senator, said he believes Democrats would have to ultimately allow an up-or-down floor vote on a nomination of such consequence, referring back to the 2005 showdown between the parties over the movement of Bush’s judicial picks. The issue precipitated a standoff between the parties and led to the formation of the bipartisan “Gang of 14,” a group of Senators who struck a deal allowing Senate votes on some controversial nominees while keeping the minority’s right to filibuster intact.

“I truly do believe the American people would demand action on it,” Burr said of a Supreme Court opening. “They see the Supreme Court as a final determining factor. I don’t know that they would hear of anything other than a court that functions.”

Democrats say they would hope that Bush would review the Congressional climate and put up a judicial pick that could meet both parties’ standards, shying away from a conservative firebrand as seen in Alito. Still, Democrats say they are realistic about those prospects, given Bush’s judicial trend and his desire to round out his legacy by placing a conservative brand to the highest court.

“It would have to be a moderate,” said Sen. Ken Salazar (D-Colo.), a centrist who served in the Gang of 14. “He doesn’t have the votes to get a conservative nominee. That’s the only possibility for him to get a Supreme Court justice confirmed. Otherwise, it won’t happen.”

I'm still holding to the Anthony Kennedy standard: If the nomination is made before November 30, the Democrats are going to look bad for obstructing it for over a calendar year.

After the Fortas deal (nominated June 26), I'd agree with Kyl though that any mid 2008 nominee is DOA.

In the 7 months between November 07 and June 08, I don't know where the exact break point is, but it's probably closer to January.

And I'm guessing the White House goes for a fight. If nothing else, its a distraction from Gonzogate and Iraq.

"Experts agree the president would most likely tap a female or minority to fill any opening and refer to a working list from his previous selections.

Among the possibilities are Diane Sykes, a federal judge on the 7th U.S. Circuit Court of appeals, Edith Brown Clement or Priscilla Owen, both of whom sit on the 5th U.S. Circuit Court, and Maura Corrigan, a Michigan Supreme Court justice. Other names that surfaced before Alito was tapped included Emilio Garza of the 5th U.S. Circuit Court and Michael Luttig and J. Harvie Wilkinson III, both of the 4th U.S. Circuit Court."

This list is mish-mash of misinformation and contradictions. First, how can Luttig and Wilkinson still be in the running if as the article predicts Bush will likely go with a female or minority? Second, according to Jan Crawford Greenburg, E. Clement, Owen, Garza, Luttig and Wilkinson have already been eliminated by this White House for various reasons.

Only two of those listed seem to be really viable. Corrigan might still be a possibility if she quits refusing the nomination. Basically, though, the only one who is still clearly in the running is Diane Sykes. Oddly, the article doesn't even mention JRB or Maureen Mahoney.

Jan Crawford Greenburg has said that Corrigan has turned down a SCOTUS nomination. Unfortunately now, her reputation has been tarnished by the antics of her fellow justice on the Michigan Supreme Court, Elizabeth Weaver. Even if Corrigan would accept a nomination now, I think she would be a very hard sell. I think Levin and Stabenow, although they secretly might want her off the Michigan Supreme Court so Granholm could appoint her successor, would be forced by Reid and the liberal special-interest groups into tearing Corrigan to shreds.

After the fiascos with Harriet Miers and Alberto Gonzales, Greenburg has stated that Owen is tainted with her association with Karl Rove and the Bushes. Regardless of her actual credentials, she could be successfully portrayed by the Dems as another Texas crony. In addition, her previous COA filibuster could be used by the Dems as an "extraordinary circumstance" that would allow them to filibuster her again with no hope of the nuclear option in sight.

http://www.abanet.org/scfedjud/ratings/ratings110.pdf

All of the five Michigan nominees now have their new ABA ratings. All are the same as they were last congress:

Kethledge - WQ(sm)/Q(min)
Murphy - WQ(sm)/Q(min)
Jonker - WQ
Mahoney - WQ
Neff - Q(sm)/WQ(min)

Is there any chance that the WD-MI three will be added to this week's Business Meeting. It would be nice to get them confirmed just so we dont have to talk about them anymore. Is there a rule that the agenda has to be posted for a set amount of time or can they just walk in tomorrow and add them to the agenda?

I don't think the biggest problem is the filibuster; rather, its even getting 50 votes at all. As I did some counting a little while back, Owen starts at a ceiling of 52 votes (49 GOP, Casey, Byrd, and Landrieu). That is being generous, but it can be done.

The situtation is different, though, than it was in 2005, with Bush's popularity eroded. But if his presidency is going to go down, I hope he goes down fighting.

So that's a ceiling of 53 .. probably add in the ND Senators as well and Johnson if he's around by then.

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

They both voted No 2 years ago for her CoA confirmation. I can't see any reason for a Yes vote this time around.

Pryor is the only other possibility. He might be facing a tough election if Huckabee drops his Presidential campaign.

April may well be remembered as the month when Senate Democrats showed their true colours as obstructionists in this Session. A grand total of one nominee (District Judge Ozerden) was confirmed and there was of course no CCA “April confirmation” after all. May will show if this was an aberration or the start of a dismal trend. Following are the dismaying figures for April:

Circuit Confirmations: 0
District Confirmations: 1
Circuit Nominees Reported by SJC: 0
District Nominees Reported by SJC: 3
Circuit Nominees had Hearings: 1 (Livingston)
District Nominees had Hearings: 3
# of Judicial Nomination Hearings: 1 (4/11/07)
Circuit Nominations: 0
District Nominations: 0
Total Nominees Pending on 3/31: 28 (6 CCA, 22 DJ)
Nominees on Executive Calendar on 3/31: 2

In last month’s Report, I wrote that for April “a Circuit nomination will be dicey”. Well, the dice came up snake-eyes, as Leahy & Co. delayed Livingston’s Committee vote into May. A vote is scheduled at the Business Meeting on May 3rd. Since there seems to be no real opposition, her nomination should be voted on and sent to the Floor on the 3rd or the 10th-11th. There was a one-week interval before the confirmation vote for both Smith and Hardiman,; by that pace Livingston should be confirmed by the 10th or the 17th unless the Dems. choose to delay further. It’s quite unlikely that Keisler or Southwick could then be confirmed before the Memorial Day Recess. I suppose that a Keisler confirmation is possible, if and only if a secret Deal has indeed been made and Senate #378 (Court Improvement Security Act) is signed within the next few weeks.

On the District level, Democrats are making an unmistakable statement by reducing confirmations to a trickle. Only one (Ozerden) was confirmed, and two have been put on the Executive Calendar (Settle and Kapala), and may well be confirmed this week. I predicted in last month’s Report “that only 3 District nominees will receive hearings in April”. Three nominees did indeed get hearings in April: Sullivan, Mauskopf and Van Bokkelen on April 11th. This was the third consecutive month that Leahy held only one hearing: 2/6, 3/13, and 4/11. If it holds, this is a very significant and ominous trend. No action was taken on the 3 Michigan W.D. nominees; May will show whether or not they are consigned to some obstructionist limbo. Since this is a short month and no hearings are scheduled for this week, there likely will be only one hearing (for 3 DJ nominees) again this month. Presumably they’ll confirm the current batch of 5 already with hearings, and maybe or maybe not some of the new ones. Not very good, and they’ll still be working on the January 9th nominees in June. Well played on the Democrat side, it must be admitted.

In last month’s Report, I set a monthly confirmations standard which several here have since echoed: 7 confirmations per month (1 CCA and 6 DJ’s), plus at least 1 CCA and 6 DJ hearings. April clearly fell way below that level. After this month, Democrats will likely have exhausted the supply of nominees with previous hearings from last year. Livingston will probably be the only CCA confirmation this month, barring a Keisler miracle deal. What’s really disconcerting, though less important, is the almost gratuitous slowdown on DJ’s. Senate Democrats are clearly feeling their oats.

Although 5 or 6 nominees will probably be confirmed this month, much of that is due to the backlog from April. If the SJC doesn’t increase the number of hearings very soon, the well will begin to run dry in June. And the projected total confirmations for April-May is only one-half of the Seven per Month standard.

[For reference, my March “Judicial Nominee Progress Report” appeared on Monday, April 2, as post #12 in the thread “We Need One More Vote”]

is not helping the matter. I can understand why no new CCA nominees are being moved forward, but why is there no new DJ nominees being moved. These are almost always noncontroversial and essential for law and order. Judges along the southern border in particular are just totally swampped. DJs shouldnt really be political. Pull Rogan and Donohue and put the pedal to the floor. NC has 4 vacancies. The eastern district of VA will soon have 3. Along with the much talked about WD-MI. Look at all the empty DJ seats.

http://www.uscourts.gov/cfapps/webnovada/CF_FB_301/index.cfm?fuseaction=...

Ones without any nominees, especially in 2 R senator states are just mystifying to me. Start cutting deals and get these filled!!!

Must be time to ignore those again, since Neff is the lowest-rated of the five. They are only "the gold standard" when it works against a conservative.

These 3 nominees couldn't be moved by the SJC until the new ABA ratings came in. Hopefully this was the only reason they were delayed last month, to the worry of many posters here. If so, they should be on the list at the next Committee Business Meeting (not this week but the next one). If not, then Levin and Stabenow are probably up to something nefarious.