ConfirmThem

It's my guess that the only sure shot at a vacancy is Justice Charles Schumer.

And I puked just typing that.

Recess appointments this week of all vacancies in the judiciary. They,(the Senate), ain't coming back for a week and THAT makes em eligible for appointments that would be good thru 12/09!!!!

I suspect we're more likely to see executive nominations than judicial during the recess unless Keisler's firm would like him to be a judge for six months before coming back to be a partner again.

Bush would be well advised to make the Democrats pay a price for refusing an up or down vote. That price could be obtained in a large variety of ways.

1. Batchelder. Obama would need to explain to Ohio why he and his fellow Senators were not giving Judge Batchelder a vote. Batchelder would be like a second Veep on McCain's ticket, salting away Ohio while allowing McCain to focus more resources on places like PA or MI.

2. Edith Clement. Mary Landrieu would be hurt badly by Senate inaction.

3. Diane Sykes. Let's see Kohl and Feingold explain their opposition on the Judiciary Committee to a Wisconsin native they already voted for.

4. Senator Kyl (or another sitting Senator). Denying a sitting senator the courtesy of a vote would be unprecedented and would leave bad blood for many years. Kyl's intellect, experience, and background as SCOTUS litigator make him a stupendous choice.

5. Janice Rogers Brown. Let's see Obama spend the whole campaign explaining why a highly qualified appellate judge does not merit a vote. The ironies would abound.

Unlike a circuit judge nomination, where stealth tactics can work, a smart SCOTUS nomination would force the Democrats into the sunlight. And we'd have a shot at winning confirmation.

It would be a fun fall!

I just don't see it happening in an election year, especially this late in the year.

But if it did happen, I would take a Justice Callahan over Justice Stevens everyday of the week and twice on Sundays. Obama is likely to win this Fall, and if he does then when Stevens retires we'll have a Justice Kagan (or worse) before you can say Roe is the well-settled law of the land.

Although . . . I do understand the political value a fight over an excellent conservative nominee (Paul Clement perhaps?) could have. If the dems insisted on obstructing the nominee, particularly if they were forced to filibuster despite being in the majority, that could really pay dividends in a bunch of close senate races, perhaps even at the Presidential level. But such a move would really be a huge gamble, and could just as easily backfire if the dems won the propaganda war over the nominee. Then they'd have the White House, the Senate, and a seat all ready to be filled.

Any nomination made this session would not run out until the end of the 1st session of the next congress. This would be December of 2009. Only executive appointments could be removed by a new President, and then there are restrictions on some of those appointments.
Stick it to em bigtime!!!!!!!!!!!

red oakster, each of your points makes sense, and I'd be happy with any of them. I think Kyl's a little old, but it'd be a good fight and would help McCain.

Mose, I agree Callahan is far preferable to any of the liberals on the Court now - I think she'd even be better than Kennedy.

That being said, there are better less controversial nominees, if that's the way the president chose to go: Debra Livingston, Sandra Segal Ikuta, Lee Rosenthal. I'm a big fan of Maura Corrigan as well. Also, NY State's highest court, the Court of Appeals, has three outstanding conservative judges, two of them female: Alison Graffeo, Susan Phillips Read, and Robert Smith. Smith is an admitted originalist and admirer of Scalia and Thomas, and the other two are also excellent judges.

http://www.nycourts.gov/ctapps/judges.htm

red oakster, each of your points makes sense, and I'd be happy with any of them. I think Kyl's a little old, but it'd be a good fight and would help McCain.

Mose, I agree Callahan is far preferable to any of the liberals on the Court now - I think she'd even be better than Kennedy.

That being said, there are better less controversial nominees, if that's the way the president chose to go: Debra Livingston, Sandra Segal Ikuta, Lee Rosenthal. I'm a big fan of Maura Corrigan as well. Also, NY State's highest court, the Court of Appeals, has three outstanding conservative judges, two of them female: Alison Graffeo, Susan Phillips Read, and Robert Smith. Smith is an admitted originalist and admirer of Scalia and Thomas, and the other two are also excellent judges.

http://www.nycourts.gov/ctapps/judges.htm

good ideas, all.

Also, how about Miguel Estrada.

Quin, while I love the fact that you tossed this in as I suggested a week or two ago, I put the odds at it happening at something like 900-1 overall.

The next think you know, "Insider" will come back and tell us that wonderous things are coming soon.

In other words, I agree this is fun - but fantasy.

This is like looking for Santa Claus on Halloween.

Stevens: 300-1

Souter: 400-1

RBG: 400-1

Scalia: 900-1

Thomas: 900-1

Breyer: 1000-1

Roberts: 1200-1

Alito: 1200-1

Kennedy: 1600-1 (closer to infinity, actually)

The above is not a recommendation or offer to gamble. No prospectus available.

Damico - I think your list offers a nice sampling of compromise picks - nominees who would hopefully vote with the conservative 4 about as often as Kennedy but who present difficult targets for the dems to attack/obstruct (wasn't Ikuta confirmed unanimously?). Edith Clement, mentioned by Red Oakster, should be on that kind of list, as well.

I think Miguel Estrada, mention by Classic, is the perfect pick for a very high-stakes, high-profile confirmation battle. His credentials are stellar, his life story is both inspiring and tragic, and his conservatism unquestioned. Nothing would rally conservatives like an Estrada nomination, and nothing would drive the dems insane like the prospect of him on the bench. I could see this scenario producing everything from a great victory to a catastrophic defeat.

But at the end of the day, all that matters is what the President decides to do. After the Miers nomination, let's just say my faith in his picks isn't what it once was.

If Bush makes a recess appointment BEFORE the intersession break between the 110th and 111th Congresses, the duration of the appointment would only last until January 3, 2009. For the appointment to last until January 3, 2010, Bush would have to make it DURING the intersession break and NOT before. Reid could sabotage Bush's ability to do that by holding pro forma sessions of the 110th Congress between December 2008 and January 3, 2009.

http://money.cnn.com/news/newsfeeds/articles/djf500/200806271715DOWJONES...

" The U.S. Senate on Friday confirmed former Virginia bank executive Elizabeth Duke to the Federal Reserve Board, but didn't act on two other key nominations at the central bank.

Duke's confirmation came as part of a deal between the White House and Senate Democrats that also included nominees for the Department of Justice, the Council of Economic Advisers, the Securities and Exchange Commission, the Federal Emergency Management Agency and the State Department.

The deal, however, didn't include former Capital One Financial Corp. (COF) executive Larry Klane, another of President George W. Bush's nominees for the Fed board, or Fed Gov. Randall Kroszner, whose term expired in January. Kroszner is staying at the Fed until he is confirmed or replaced.

White House spokeswoman Emily Lawrimore said Senate Democrats offered to confirm Duke or allow President George W. Bush to give both Duke and Klane recess appointments, which would expire at the end of 2009. Lawrimore said it wasn't clear that either nominee would accept a recess appointment. As a result, the White House accepted the offer on Duke and decided to continue to push for a vote on Klane and Kroszner."

"Three nominees to the Securities and Exchange Commission also were confirmed Friday - Luis Aguilar, Elisse Walter and Troy Paredes.

In all, the Senate confirmed 29 non-career nominees, the White House's Lawrimore said. She said that leaves 189 nominees still waiting for a Senate vote."

If you want a truly high profile confirmation battle (not that any wouldn't be high profile), then you go with Miguel Estrada, Janice Rogers Brown, Michael McConnell, or Alison Eid. If you want less contentious, but still genuinely conservative and/or originalist, you go with Edith Brown Clement, Alice Batchelder, Diane Sykes, or Maura Corrigan. If you want solid but potentially Kennedyesque, you go with Consuelo Callahan or Maureen Mahoney. Who knows? There won't be any vacancy anyway....

On August 1, 2005, Bush made a recess appointment of John Bolton, to serve as U.S. representative to the United Nations.[1] Bolton had also been the subject of a Senate filibuster. The filibuster concerned documents that the White House refused to release, which Democrats suggested may contain proof of Bolton's abusive treatment and coercion of staff members or of his improper use of National Security Agency communications intercepts regarding U.S. citizens. Having failed to win Senate confirmation, he resigned his office in December 2006 concurrently with the adjournment of the 109th Congress.
The recess appt. of Bill Pryor to the circuit court on 2/19/05 would have expired at the end of 2006--see Senate reference-recess appointments.Term expires following the Next session of Congress.

http://www.senate.gov/reference/resources/pdf/RS21308.pdf

"How Long Does a Recess Appointment Last?

A recess appointment expires at the end of the Senate’s next session or when an individual (either the recess appointee or someone else) is nominated, confirmed, and permanently appointed to the position, whichever occurs first. In practice, this means that a recessappointment could last for almost two years. If the President makes a recess appointment between sessions (of the same or successive Congresses), that appointment will expire at the end of the following session. If he makes the appointment during a recess in the middle of a session, that appointment also will expire at the end of the following session. In this case, the duration of the appointment will include the rest of the session in progress plus the full length of the session that follows.

A comparison of two recess appointments during the 108th Congress illustrates the difference in recess appointment duration that results from the timing of appointments. During the recess between the first and second sessions, President George W. Bush appointed Charles W. Pickering to an appeals court judgeship. Several weeks later, during the first recess of the second session, President Bush appointed William H. Pryor to a judgeship on another appeals court. Pickering’s appointment expired after less than 11 months, at the end of the second session. Pryor’s recess appointment would have expired after approximately 22 months, at the end of the first session of the 109th Congress. Although the Pickering and Pryor recess appointments were only several weeks apart, Pryor could have served nearly twice as long because his appointment was made during an intrasession recess."

NOTE: At least according to this Senate document, sidneyc is correct. However, as I said before, all Reid has to do to prevent Bush from making any recess-appointments is to do pro forma sesssions during any breaks, intrasession or intersession. At this point, for financial and professional reasons, it would be quite unwise for most nominees to accept a recess appointment. In the article I linked to above about the recent Bush/Reid deal on executive nominations, it says that at least Federal Reserve nominees did NOT want to be recess-appointed because of the uncertainty such an act would create.

Obama likely to win? Don't make me laugh! That pathetic joke of a candidate is more likely to lose 40 states.

I tend to agree, but could you please provide specifics as to why you think Obama will lose--in a landslide, given that this is shaping up to otherwise be a Democratic year?

http://www.leesburg2day.com/articles/2008/06/27/news/fp483court062708.tx...

From last Friday:

"Agee is expected to resign his state post and join the federal court as early as next week."

Damico - I don't doubt that there would be plenty of fireworks over a nomination of Janice Rogers Brown, but I don't think that's the direction I would go. I think that for the pitched battle, you would want to put forward an impeccable nominee that provided the least opportunity for the dems to score cheap points. If Bush nominated Rogers Brown, we'd spend the whole debate arguing about the New Deal (which Rogers Brown described as the "triumph of our own socialist revolution"). However much I agree with her, that is a public debate that the GOP would lose HARD. As for McConnell, I think it's better for the debate about Roe to be theoretical - which McConnell's record of criticism of Roe makes impossible. The dems would have a one sentence attack line - if McConnell was appointed then abortion would be outlawed (this is patently false of course, and they would say this about any nominee). But this one sentence attack requires a multi-sentence answer, particularly because McConnel's record would require an extensive explanation that "yes, he would probably overrule Roe, but no, that doesn't mean abortion would be illegal, etc., etc." - that's a formula for losing a public debate.
Allison Eid is actually an intriguing choice - obviously conservative, great record (CU professor, CO SG, CO Sup. Ct.), female, but she is on young side (41 or 42, I believe). I think if you are going to go young you have to go for the best resume out there - Paul Clement or Estrada. Easterbrook from the 7th Circuit would spark the debate I'm looking for, as would Corrigan off the Mich. Supreme Court.

For my comments on this subject, please see comment #24; "Hackett and Cubsfan" located below in Quin's previous thread on this, titled "Be Ready, Mr. President."

I can't remember.

As for the speculation, I could see Stevens or Souter retire, but I'm not holding my breath.

I have no idea if ALison Eid is capable of standing up to the pressue the Senate confirmation hearing would hit her with.

I love the fact that she's only 41 assuming she wouldn't "grow" like O'Conner.

http://www.confirmthem.com/fred_thompson_and_john_warner_on_judges#comme...

n/t

Eid is 43. And given her sterling academic and professional accomplishments, there's no reason to assume she couldn't handle a confirmation battle.

I agree with you on Easterbrook and Corrigan. Easterbrook is akin to McConnell without any Roe baggage, and Corrigan is as originalist as they come. Both are committed textualists and would be outstanding.

So I say go with Estrada or JRB!

How does everyone think O'Connor would have voted in the Heller case?

I know she's from the West and grew up on a ranch and all, but she was fairly liberal on most hot button cases.

Would she have joined Scalia's opinion or would she have concurred in some way or even dissented?

Also, as we've seen with Roberts and Alito, the issues isn't necessarily which Justice is the most inteleectually superior but whether they'll provide a 5th vote for the conservatives.

A Janice Rogers Brown or Miguel Estrada may be more appelaing for a variety of reasons, but their votes won't count more than anyone else's will. If Roberts had written the Boumediene majority instead if a dissent, would it really have mattered if it said Roberts, CJ JOINED by SCALIA, THOMAS, ALITO and SYKES or WILLIAMS or WHOEVER instead of BROWN or ESTRADA.

Miguel Estrada is my choice, but it will be at eight or possibly 12 years before a Republican has a chance to appoint a justice.

I think nearly all of us agree that Obama is a horrible choice. The reason why I think he'll be the next US President anyway is severalfold:

1) He's not a Republican. This country is very sick of Bush, for good reasons and bad. The vote for change is very real, regardless of the fact that this would be major change for the worse.

2) McCain is a lousy candidate as well. Many Republicans (and conservatives such as myself, an independent) believe that McCain may have some redeeming qualities (such as what sound like his Supreme Court choice preferences), but he falls so far short of what most of us really want. I suspect that many who vote for McCain are really just voting to prevent Obama from winning. If I lived in a contentious state, I would vote for McCain with my nose held. Living in California, where there is ZERO chance McCain could win, I fully intend to vote for someone else. (My preference would have been Duncan Hunter, but he's not even on the ballot, so maybe the Constitution Party candidate might be my choice, or I may just write in Hunter anyway.) I want it very clear that the Republican Party has to listen to us, instead of picking who they want and then packaging him so he wins all of the primaries.

3) Obama gets the guilt vote, from those who feel that blacks (note that I did NOT say African-Americans - "blacks" is in no way racist) are still intentionally repressed and deserve extra special treatment.

4) McCain just isn't very "pretty", while Obama is. Sadly, appearances are very important to many Americans. I will readily admit that Obama is very "presidential" in his appearance and his speaking abilities, while McCain is not.

5) Obama gets nearly the entire black vote, simply because he's black. Many (but certainly not all) blacks will vote for him in spite of the fact that they might ordinarily vote for the Republican. Plus, the vast majority of blacks vote for the Democrats anyway. (Why, I can't figure out, when nearly all of the Democrat social programs end up REPRESSING poorer people instead of helping them get back on their own two feet.)

Although he has excellent credentials and is a minority, he also has an unappealing presentation that the Dems could easily use against him. I just saw him on a Supreme Court term wrap-up panel. He comes across as cold and intellectually arrogant. In addition, his stutter causes him to at times make the most God-awful faces while he speaks. Whether anyone wants to admit it, presentation is extremely important in this media age.

Also, he is easily rattled. If anyone saw his hearing before the SJC when he was a D.C. Circuit nominee, you'd understand. When confronted by the Dems for his supposedly ideological selection of future law clerks for Justice Kennedy, he became unpleasantly passive-aggressive. Not that some blowhard Dems don't deserve that sort of treatment, but to the average American that type of behavior will look inappropriate, and the Dems will be able to spin it that he doesn't have the necessary judicial temperament.

No, Estrada would not IMHO be a good SCOTUS nominee in a Dem-controlled Senate. Rather, we need someone who appears either as brilliant and charming as Roberts or as hardworking and earnest as Alito. Easterbrook unfortunately comes across as quite Bork-like both in his appearance and intellectual self-confidence. I would think a well-qualified female would do best. Sykes, Callahan and Mahoney are all younger females who appear stylish and attractively non-threatening. Batchelder and Corrigan on the other hand come across as warm and grandmotherly. Unfortunately, I think both Edith Jones and Janice Rogers Brown have too much of an edge in their presentations. Neither pretends to take fools lightly.

If McCain is such a lousy candidate, then why isn't Obama much further ahead in the polls? Given the perfect storm of Bush's low approval rating, Obama's charisma, and McCain's alleged mediocrity, then Obama should be running away with it - but he isn't. There are plenty of people who realize that Obama, for all his charm, is a knee-jerk liberal with little experience and who is utterly unqualified to be president.

McCain is playing the role of Jimmy Carter in the 1980 campaign. I look for him to stay relatively close to Obama through September. Once October begins, Obama will gradually pull away and win with relative ease. McCain is sleep walking through this campaign. For a brief moment in March and early April, I thought McCain might win. Unfortunately, he didn't do one productive thing in the four months he ran without a true Democrat challenger. For that reason, don't look for Republicans to nominate a justice for a decade or so. Way to go, 43! Thanks for Hoovering us.

That might or might not be true. But Obama is playing the role of Dukakis in 88.

Polls this far out are meaningless.

Yes, I think Obama is closer to Dukakis than McCain is to Carter or Dole. Obama's negatives are going to balloon over the next several months, and this will be to McCain's benefit.

And as for McCain being a weak candidate - not so. He will get Republicans and conservatives, and he will be far more likely to get Reagan Democrats and independents than another candidate. As everyone likes to say, this is a Democrat year (I'm not convinced of it yet), so McCain seems particularly well positioned under such conditions, as would have been Giuliani.

I/m not convinced Estrada is easily rattled. The guy is a legend of the Supreme Court bar. You can't function as an appellate atty on that level if you are easily rattled - it's just not possible. Perhaps he was simply surprised at his COA hearing, and perhaps he didn't care about the hearing you saw him in today.

I don't think most people can mask their true reactions for too long in high pressure situations. Estrada definitely knows his law, but I have seen him speak on multiple occasions with the same impression. He doesn't put up with what he considers to be foolish remarks. His disdain is palpable.

Public confirmation hearings are intense affairs that last days and not thirty minutes like an oral argument would. Every one of his bitter glances or facial twitches would be magnified by the cameras and duly reported ad infinitum by the liberal MSM. While Estrada might be able to "play nice" for thirty minutes, I doubt he would be able to smile and charmingly joke through 15 hours of Democrat dissection. I think both he and Easterbrook would come across as "David Addingtons" if they were placed in the hot seat. Fortunately, both Roberts and Alito, in different ways, came across as polite and cooperative in their hearings.

Your pessimism is disappointing.

I'm not pollyannish, but what makes you think Obama won't keep injuring his campaign big time.

Plus the NRA announced today that it will pour 40 million dollars into defeating Obama, incl 15 mill. on the 2nd amendment.

Remember Obama's comment in SF about people "clinging," etc.? That's not forgotten in WV and elsewhere. When was the last time a Dem won the presidency and lost WV. A looooooong time.

I'm also of the view that unless Obama picks Rendell (whom I understand has a major negative area) then McCain is going to win PA. If he picks Romney for veep candidate (see Mike Allen Politico), there is a strong likelihood McCain wins Mich and holds such places as Nev. and Colorado.

I could go on and on, but I think you get the idea.

PS Yes, Dukakis was 18 points ahead after the Dem convention. Also, Newsweek and LA Times polls are not to be trusted--registered rather than likely voters, as well as over weighted Dems. Zogby's not to be trusted many times. Rasmussen seems pretty reliable, but remember how fluid the situation is. I doubt most people will start focusing until after the Olympics are over.