ConfirmThem

"But what's needed right now are new circuit judges who are already expert in changing the law." - Emily Bazelon and Judith Resnick, in Slate.

http://www.slate.com/id/2207071/

OBAMA WATCH CENTRAL
Supreme Court to talk about Obama 3rd time
Berg eligibility case set for conference Jan. 9

Posted: December 19, 2008
12:25 am Eastern

© 2008 WorldNetDaily

One of the original legal challenges to President-elect Barack Obama's eligibility for office to reach the U.S. Supreme Court now has been scheduled for a conference, a meeting at which the justices discuss its merits and whether to step into the fray.

Online schedules posted by the court show the case brought by attorney Philip J. Berg is set for a conference Jan. 9.

The case is one among several that already have reached the U.S. Supreme Court and address the issue of Obama's eligibility to occupy the Oval Office under the U.S. Constitution's requirement that presidents be "natural born" citizens.

Berg has submitted several requests for injunctions, seeking the court's order to stay proceedings in the electoral process until his case is heard, but the request have been rejected.

His original claim, however, remains on track to be heard.

(Story continues below)

"I know that Mr. Obama is not a constitutionally qualified natural born citizen and is ineligible to assume the office of president of the United States," Berg said in a statement on his ObamaCrimes.com website.

"Obama knows he is not 'natural born' as he knows where he was born and he knows he was adopted in Indonesia; Obama is an attorney, Harvard Law grad who taught Constitutional law; Obama knows his candidacy is the largest 'hoax' attempted on the citizens of the United States in over 200 years; Obama places our Constitution in a 'crisis' situation; and Obama is in a situation where he can be blackmailed by leaders around the world who know Obama is not qualified," Berg's statement continued.

I was worried this site was gone forever. Anyway, it looks like Franken is going to win MN now. The Senate will be 59-41 when the IL mess is worked out. We really do not have a filibuster on judicial nominations for the next 2 years. Anyone Obama wants to appoint will be confirmed.

http://bench.nationalreview.com/post/?q=N2ExNTlmMzc2Y2ViNWQzMDFiNGNlZTY4...

"Emily Bazelon and Judith Resnick have an idea for President Obama: Maximize the influence of early appellate nominations by picking 'proven and experienced change-makers.'"

I find it interesting that we are now worried about not being about to filibuster the nominations of a Democrat.

There was a CHANCE to fill all these vacancies by eliminating the filibuster rule under Bush. But we didn't. McLame, and other cowards forgot humans have spines and they made a deal with the devil. Now all those spots will be filled, don't you worry.....

My question to all on this open thread, are there any defenders of the Gang of 14 deal anymore? And before the BS starts, the Supreme Court nominations would have made it anyways as people follow THOSE picks, so don't even start there.

Really, are there any happy campers on the Gang Deal now?

still has a shot. I was at first depressed by the news that Franken had taken the lead. But from what I understand, the opposite group of ballots will be decided next week and Coleman should garner a number of votes from that and might regain the lead.

Nah, actually Coleman is toast. To see why, in deep detail, read this analysis yesterday by fivethirtyeight.com's Nate Silver (who, despite being a Democrat, did an excellent job, both sides agree, of forecasting the election -- he did miss a few states I recall, but his statistical predictions in general throughout the campaign's final months were outstanding).

At this point, Norm is just treading water and hoping for a miracle on one of his challenge fronts, since it's almost a certainty that Franken will end this recount with more votes:

http://www.fivethirtyeight.com/2008/12/franken-is-winning-and-coleman-kn...

An additional problem for Coleman (one that Nate Silver does not address in the post above) involves the recent investigation into his finances. Given Republicans' current interest in distancing themselves from scandals, it's going to make it a lot tougher for Senate Republicans to want to take any extraordinary measures to fight for his case, particularly if MN does indeed go ahead and certify Franken as the winner, as they likely will.

It's best to expect the Senate to be 59-41 by late January or early February (i.e., still well in advance of Obama nominating any judges). By late January or early February, Illinois' governor likely will have quit, and his successor will quickly have appointed a Democrat (likely a caretaker, likely someone fairly unimpeachable -- if anyone like that even exists in IL!) as Obama's replacement.

Then the split on the SJC may be 12-7 in favor of the Democrats instead of the 11-8 that a 58-42 split would give. That means the SJC Republicans would have to lose TWO members from the current line-up of nine. I think it is likely Brownback will be one the two because I understand he is planning to retire from the Senate in order to run for governor of Kansas.

http://thehill.com/campaign-2008/brownback-makes-retirement-official-200...

"Sen. Sam Brownback (R-Kan.) on Thursday officially announced that he will not seek another term in the Senate, setting up a probable run for governor in 2010.

Brownback was known to be on the way out, having pledged to serve just two terms. Two Republicans in the state’s congressional delegation have already set in motion efforts to run for his seat in two years.

Brownback is making three stops today on his announcement tour and was mum about a gubernatorial run at the first stop, his office said. But the nature of his announcement tour suggests he is setting up another statewide run."

http://www.politico.com/news/stories/1208/16621.html

"The Senate’s final partisan breakdown may not be known for months, but Democrats will hold as few as 57 seats and as many as 59 seats in the 111th Congress. According to historical precedent, which negotiators rely on to set ratios, that can mean the difference between a two-seat majority on some panels and a six-seat majority on others.

'To an extent, yes, there could be a big difference between 57 and 59 seats,' a Democratic leadership aide said. 'But that is still being resolved.'"

http://bench.nationalreview.com/post/?q=ZTE2NWNjZGQxMGQ4NmYxNzVjODdmZDU4...

"I've looked into (and heard a bit more) about the three district court judges suggested by Bazelon and Resnick as potential Obama appellate nominees. First, all three are older than some might hope or expect. Gertner was born in 1946, Thompson in 1947, and Bennett in 1950. This is not disqualifying, but the older an appellate nominee, the less likely that judge is to have a substantial effect on the law within his or her circuit. Second, it's not clear whether Bazelon and Resnick considered whether there would be seats available for these nominees. Consider Thompson, who sits in Alabama, which is in the 11th Circuit. There are three "Alabama seats" on the 11th, all of which are filled. What is more, none of the three is likely to open up anytime soon, given the ages of the sitting Alabama judges (Dubina, 61; Carnes, 58; Pryor 46). So, barring unforeseen events — or the addition of another Alabama seat — there would be no place for Thompson to go."

Bazelon and Resnik's article makes little sense. In the first place, their suggesting of only three names for COA seats is ridiculous, especially given that Obama could end up having upwards of 40 COA vacancies in his first term. (That may sound high, but Bush's father got 42 COA nominees actually *confirmed* during his four years, and Carter got even more (56).) In his first year, Obama will have Bush's 10 pending COA nominee seats plus Raymond Randolph and Lanier Anderson's vacated seats, plus two Ninth Circuit seats (Idaho plus the one being transferred from the DC Circuit to the Ninth Circuit). On top of that, Obama may get anywhere from 10 to 15 newly created COA seats in the next four years if the judge bill goes anywhere (maybe it will, maybe it won't).

Bazelon and Resnik would be far better off, as Adler rightly noted, thinking about potential appellate nominees 1) by age; and 2) by possibility of seat availability (this should be the way that a president of either party should think about it, obviously).

Some further thoughts on future COA nominees:

--Obama probably won't nominate anyone 60 or older in 2009. Sure, both George W. Bush and Clinton occasionally nominated (and got confirmed) older COA nominees (Bush 43 appointee Carlos Bea on the Ninth Circuit comes to mind), but there's a long history of older nominees serving for a fairly short time and then rolling off, content to take a fat senior status pension with them. Examples include Clinton appointees Wallace Tashima on the Ninth, Robert Manley Parker on the Fifth, John David Kelly on the Eighth (who died), Chester Straub on the Second, Fred Parker on the Second (who died), Pierre Leval on the Second, and Lee Sarokin on the Third; and Bush 43 appointee Franklin S. Van Antwerpen on the Third.

--Adler is very right that Myron Thompson, at least, faces long odds of an "Alabama seat" on the Eleventh being open anytime soon. Something extraordinary would have to happen. Nancy Gertner (the oldest of the three Bazelon/Resnik/Slate suggestions) has a shot at being nominated to the First Circuit, at least in theory, given that the First Circuit's Michael Boudin, a Bush 41 appointee, can take senior status any time. And Mark Bennett probably is the likeliest of Slate's three names to get a nomination at some point; he's the youngest, and he also could easily fill Clinton appointee Terence Evans' seat, given that Evans already is eligible for senior status (and is pushing 70).

--Why didn't Resnik and Bazelon suggest *any* possible judges for the Fourth Circuit (where the most vacancies are right now)? Who knows. It's all the more baffling, given that they actually called that circuit out in that article for its vacancies (as the authors of every kind of article like this always do).

--In a separate post, I'll provide my thoughts (as BoBo so carefully already has as well) on who I think some of Obama's more likely choices are. My list will be a lot more extensive than Bazelon and Resnik's. (Bazelon went to Yale Law and Resnik *teaches* at Yale Law, and this is the best they could come up with?)

I don't think Bazelon, Resnik & Dahlia have ever recovered from the WHR dying (tho they're all libs I think the Chief grew on them in a grandfatherly way, esp Dahlia)-Alito replacing Sandy (at least they admitted Sam was qualified in every way but "empathy" and that Sandy was a pure politician who made it up as she went along and grew to love the spotlight)-Obama smoking Hillary for the nomination (lol)-Governor Sarah Palin, R-AK sequence.

Fried their synapses or something, plus the creation of the XX Slate blog got 'em all distracted, esp by Palin, and the new generation of young female NYC bloggers who have no use for them. I rarely agreed with much they wrote, but at least they (mostly) kept the facts straight and could make (mostly) logical arguments. Most of their stuff is shockingly bad compared to 2-3 years ago.

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

I realize it's really old news and every body's who anybody gets the reference, but I don't. Would you please explain the phrase you end each post with? Thanks.

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

It's my automated signature line. It's from an old SCOTUS voter ID case, the one previous to the most recent, IIRC.

I purposely searched for one where Stevens or RBG was alone in dissent with Scalia or Thomas (I wonder how many total of these there are?). Sort of a commentary on "you never know", frustration with trying to predict the future or what humans will do, duality of man, the absurdity/hilarity of it all, etc...

;)

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

http://www.google.com/hostednews/ap/article/ALeqM5g5OIby8Y5nXR7yyiv7IZtM...

"[Granholm] failed to get a spot in the new administration, but some see her as a potential federal judicial appointee."

At the moment, there are no Michigan 6th Circuit seats available. However, there will be when the Dem-controlled 111th Congress creates 14 new CCA judgeships soon.

http://bench.nationalreview.com/post/?q=N2E0Mzc1N2ZmMDkwOGY3OWU0NGNhNWIw...

"Hispanic judicial candidates who are perceived to be judicial conservatives attract the special wrath of the Left, as former D.C. Circuit nominee Miguel Estrada can readily attest. In Florida, the state nominating commission’s nomination of Frank Jimenez as one of five candidates for Governor Crist to choose among to appoint to the state supreme court has triggered the usual outbursts. In this op-ed, former state supreme court justice Raoul G. Cantero III amply defends Jimenez from the attacks. Let’s hope that Gov. Crist stands strong."

http://www.tampabay.com/opinion/columns/article946621.ece

"The Florida Supreme Court Judicial Nominating Commission has nominated five candidates to fill another vacancy on the court. The Times' editorial board on Friday again singled out one of the candidates for vilification — Frank Jimenez, another conservative Hispanic. The Times condemns his nomination despite Jimenez's sterling credentials: distinguished Yale Law School and Wharton Business School graduate, partner at a well-respected Miami law firm, deputy chief of staff and acting general counsel to Gov. Jeb Bush, chief of staff to then-HUD Secretary Mel Martinez, top litigation counsel at the U.S. Defense Department, and now general counsel of the Navy, one of six civilians of four-star rank who help the secretary of the Navy oversee the U.S. Navy and Marine Corps.

Jimenez's nomination is supported by many lawyers and judges, both on the right and the left. For example, Harold Koh, the internationally respected dean of Yale Law School and self-described critic of the Bush administration, draws from his 20 years of association with Jimenez to call him "utterly fair-minded and reasonable" and to state that, "as a human rights lawyer, I wish that every judge I appeared before had half his insight, awareness, or commitment to fairness." Former Navy General Counsel Alberto Mora, a hero to those opposing Guantanamo detainee policies, said he "could not have asked for a better lawyer, colleague, deputy or successor" and that Jimenez's selection would provide the court "a justice of rare ability."

The federal appellate judge for whom Jimenez clerked described him as having "the perfect temperament for a judge on a collegial court," "congenial and personable," "thoughtful, balanced and deliberate," and as having "rock-solid personal and professional integrity." These letters, and many more, came from colleagues who know Jimenez intimately.

From the Times' editorial, however, one would never guess that Jimenez possesses such traits. Instead, the Times describes Jimenez as "a (Jeb) Bush acolyte" who is contemptuous "of an independent judiciary," and claims that "(a) Jimenez appointment would make a mockery of the state's judicial nomination process."

I do not quarrel with the Times' conclusion that the other candidates nominated are highly qualified. They are. Any one of them would make an excellent justice of the Florida Supreme Court. But once again the Times has cast unfair aspersions at a conservative Hispanic nominee. And if the governor decides to appoint Frank Jimenez to the court, I am confident that, once again, the Times will be proven wrong."

Bush 41 appointee Barksdale of Mississippi will take senior status on August 8, 2009. When Patrick Leahy was blocking Charles Pickering, Michael Wallace and Leslie Southwick to the Fifth Circuit, he used diversity as an excuse. He said that any nominee to that circuit from Mississippi needed to be African-American. He specifically said that he wanted Reagan-appointed district court judge Henry Wingate nominated:

http://leahy.senate.gov/press/200708/080107.html

"I have urged the White House to work with Senators of both parties and to fill the 5th Circuit vacancy from Mississippi with the nomination of the Honorable Henry Wingate. Judge Wingate would be the first African American from Mississippi to serve on the 5th Circuit. He is the Chief Judge of the District Court for the Southern District of Mississippi. He was appointed to the federal bench in Mississippi by President Ronald Reagan. He has served with honor and distinction for more than 20 years, since we helped confirm him in 1985. He has served as the Chief Judge of the District Court since 2003. He was a naval officer and is a member of the Naval Reserve. He was an assistant attorney general, an assistant district attorney, an assistant U.S. attorney, a professor and trial lawyer."

However, with Obama now in office, I think they may want to nominate someone else, a more reliable liberal who is not African-American. I wonder if Obama may instead try to nominate Mississippi Supreme Court nominee Oliver Diaz, who was recently defeated for re-election:

http://www.mssc.state.ms.us/appellate_courts/sc/bios/justicediaz.html

http://www.freerepublic.com/focus/f-news/2126132/posts

"Chancery Court Judge Randy "Bubba" Pierce upset incumbent Supreme Court Justice Oliver Diaz Jr. in the Southern District race.

Diaz's tenure was marked by judicial bribery allegations that dominated headlines for almost a year before federal prosecutors indicted him in 2003. He was suspended until after his acquittal in 2005.

With 91 percent of precincts reporting, Pierce had 58 percent of the vote, compared to 42 percent for Diaz in the Southern District race. Pierce had 189,237 votes, while Diaz had 134,514."

To check out how liberal Diaz is read this:

http://www.sunherald.com/218/story/1028580.html

"Outgoing Supreme Court Justice Oliver Diaz Jr.'s impassioned call for an end to the death penalty has drawn both criticism and praise.

In what was likely his departing dissent as his tenure on Mississippi's highest court ends, Diaz says society finally must recognize that 'even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment.'

Jimmy Robertson, a Jackson attorney who served on the state Supreme Court from 1983 to 1992, said Diaz laid out a number of points, including that the death penalty is not a deterrent to murder, that were 'pretty close to being irrefutable to anybody that's objective on the question.'"

"Diaz, a presiding justice, returned to the court in May 2006 nearly three years after being acquitted of federal bribery in 2005 and tax evasion charges in 2006. Diaz was suspended with pay in December 2003 not long after he was indicted along with two former lower-court judges and a prominent Mississippi Gulf Coast attorney.

His return to the court was marked by an upswing in dissenting opinions, criticized in some legal circles but prompted by what Diaz said during his re-election campaign was a change in attitude fueled by his experience as a defendant in federal court.

'I don't look at cases the way I used to," Diaz said at a campaign forum. "It was an experience that not many others have.'"

At this point, I haven't been able to ascertain exactly what Obama is likely to do with judicial nominations. While I have no doubt that some of his judicial nominees will be ultraliberals, I do not know if ALL of his nominees will be. His cabinet appears relatively moderate in a Clintonesque manner. Will his judicial nominees be in a similar mold? Or, will he have to nominate mostly hardcore ultraliberal judicial nominees in order to compensate his progressive base for the perceived lack of liberalism in his cabinet?

http://www.miamiherald.com/news/southflorida/story/823442.html

"The Judicial Nominating Commission ''ran afoul of Florida law'' and appeared to bow to political pressure when it nominated Miami lawyer Frank Jimenez for the Florida Supreme Court, a group of high-powered lawyers complained in a strongly worded letter Monday.

Jimenez, a politically connected attorney who is currently the U.S. Navy's general counsel, was nominated for the seat Wednesday after a long and contentious JNC meeting called in response to Gov. Charlie Crist's request for more ''diversity'' in the list of prospective justices. Amid frequent 5-4 votes, the commission suspended its rules at times as some members questioned what they were doing and what Crist's motives were.

''We are very concerned that the integrity of the process with respect to the nomination and selection of justices and judges may be tainted in the eyes of the public,'' said the letter to JNC chairman Robert Hackleman.

It was signed by 17 attorneys, including former Florida Bar President Kelly Overstreet-Johnson, two former Fifth District Court of Appeal judges and state Sen. Alex Villalobos, R-Miami, and his father, José.

The signatories said they would like a delegation of theirs to meet with Hackleman and others to prevent a repeat of Wednesday's meeting, which was held by conference call. They said the JNC's actions ''may very well run afoul of the letter and spirit'' of the law when it changed its rules during the conference call and when it cast voice votes rather than secret ballots."

http://legaltimes.typepad.com/blt/2008/12/prosecutor-in-marc-rich-case-e...

"One of the prosecutors in the criminal case against commodities trader Marc Rich says that Eric Holder Jr. shouldn’t be disqualified from the job of attorney general because of his involvement in Rich’s pardon.

In a letter released today by the Senate Judiciary Committee, James Comey endorses Holder as President-elect Barack Obama’s choice for the nation’s top law enforcement official. Comey was in charge of the Rich case from 1987 to 1993 when he was an assistant U.S. attorney in the Southern District of New York.

Comey later served as a U.S. attorney and then deputy attorney general—two positions that Holder has also held..."

http://projects.newsobserver.com/under_the_dome/two_more_names_for_fourt...

"Two more names have been mentioned for the Fourth Circuit.

A knowledgeable insider tells Dome that James A. Beaty Jr. and Charles Becton might also be under consideration by President-elect Barack Obama for the vacant seats on the U.S. Court of Appeals.

Beaty was nominated in the mid 1990s, but his appointment languished in committee and he currently is a U.S. District Court judge. Becton is another former would-be judge from the Clinton years, and is currently serving as president of the N.C. Bar Association.

Other names previously mentioned: Robert Spearman, Rich Leonard, Jim Wynn, Patricia Timmons-Goodson and Martha Geer.

Several of the picks would allow liberals to have the last laugh over former Sen. Jesse Helms, who blocked Leonard, Wynn and Spearman from judgeships during his long career."

http://projects.newsobserver.com/under_the_dome/who_obama_might_pick_for...

"Four North Carolinians could be up for a federal judgeship.

President-elect Barack Obama and the Democratic majority in the U.S. Senate will have the opportunity next year to fill four vacancies on the Fourth Circuit of the U.S. Court of Appeals.

The Richmond-based court oversees cases from the Carolinas, Maryland, Virginia and West Virginia. Because of its reputation as the most conservative appeals court in the country, many legal experts expect Obama and the Senate to attempt to move the court leftward.

Although a North Carolinian will not necessarily be nominated, the talk in Raleigh's legal circles is that four Tar Heels may be up for consideration:

Rich Leonard: A U.S. Bankrtupcy Court judge in the Eastern District, Leonard came close to an appointment before because of his friendship with former Sen. John Edwards.

Jim Wynn: A state Appeals Court judge, Wynn also came close during the Clinton administration but Sen. Jesse Helms blocked his appointment.

Patricia Timmons-Goodson: A state Supreme Court justice, Timmons-Goodson also made a lengthy list of potential Supreme Court picks by Scotusblog.com.

Martha Geer: A state Appeals Court judge, Geer handled a number of cases in the U.S. Appeals Court while in private practice handling corporate litigation.

The usual caveats apply. As with all conventional wisdom, these names have surfaced because they are the most obvious picks, but that doesn't mean they're the only choices."

Beaty, Leonard and Spearman are too old. Wynn, Timmons-Goodson and Geer are younger. Because Wynn is a failed Clinton nominee, I think that gives him the best chance of being nominated by Obama. The Dems would love nothing better than to spit in the face of Jesse Helms' corpse.

Will Bush finally do the right thing and pardon those two Border Agents from Texas?

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

Well, *someone* had to replace her:

http://www.chicagotribune.com/news/chi-ap-mi-courtofappeals-gr,0,4961439...

Granholm appoints 2 to Michigan appeals court

Associated Press
4:07 PM CST, December 23, 2008

"LANSING, Mich. - Gov. Jennifer Granholm has filled two vacancies on the Michigan Court of Appeals.

Granholm announced Tuesday she has named Cynthia Stephens of Detroit to the appeals court for the 1st District covering Wayne, Monroe, Lenawee, Hillsdale and Calhoun counties. Stephens is a circuit court judge replacing Judge Helene White, who was recently appointed a federal judge.

Granholm has appointed Douglas Shapiro of Ann Arbor to the appeals court for the 3rd District representing much of west Michigan and Eaton, Jackson and Washtenaw counties. Shapiro is a law firm partner replacing Judge Michael Smolenski, who has resigned.

Both terms expire Jan. 1, 2011."

has his own blog, as well as a very extensive 12/22 report at another site. Here is a key paragraph [COLB means Certificate of Life Birth]--

There is conclusive and irrefutable evidence that the COLB image created and distributed by Obama's campaign to the Daily Kos, Annenberg's Factcheck, and the St. Pete Times, Politifact, is, unquestionably, a false identification document. Furthermore, there is conclusive and irrefutable evidence that the photos taken by Annenberg's Factcheck, in collusion with the Obama campaign, are themselves, false identification documents, having been made from the same false identification document image, as well as from additional false identification documents created for the same purpose; namely, to proffer these false identification documents as true reproductions of a genuine, Hawaii-issued and certified, "Certification of Live Birth" document, and thereby, intentionally deceive the American public into believing that Barack Hussein Obama is a natural-born citizen of the United States, and thereby, fully qualified to become their President.

I don't think this should be dropped any more than the burgeoning Illinois scandal should be dropped (see Hugh Hewitt's latest post--12/23 [note, I doubt very much Hugh would want to be linked with anything other than this paragraph!].

Sounds good to me! Thanks for the explanation.

http://www.acsblog.org/judiciary-look-beyond-constitutional-interpretati...

"The records of potential and pending judicial nominees on constitutional interpretation are a vital consideration, but far from the only one. Lifetime judges must also be competent, fair and independent, and must fairly interpret and apply the statutes, treaties, and judge-made “common law” that are at issue in the vast majority of cases.

In addition, access to court is essential. It includes both constitutional and non-constitutional aspects of standing to sue, and statutory interpretation issues such as the definition of agency action that can be challenged."

http://www.law.com/jsp/article.jsp?id=1202426934090

"Elena Kagan, dean of Harvard Law School, has also been named as a possibility, though many say the position would be an odd fit. Denied a hearing by Republicans after President Bill Clinton nominated her to the U.S. Court of Appeals for the D.C. Circuit in 1999, Kagan has re-emerged as a potential Supreme Court pick for Obama."

This ambiguously worded paragraph makes it sound like the Obama team recognizes that Kagan would make a better judicial nominee than executive branch nominee.

http://www.miamiherald.com/news/florida/story/824806.html

"Gov. Charlie Crist started to quiet criticism over a Cuban-American lawyer's nomination for a Supreme Court seat by saying Tuesday that he'll consider another candidate, Judge Jorge Labarga, for the seat as well.

Labarga appeared out of the running for the high court after Crist earlier this month selected him for a seat on the Fourth District Court of Appeal. Crist then asked the Judicial Nominating Commission to send him a list with more ''diversity'' for the Supreme Court.''

Crist's request triggered suspicion that he wanted politically connected lawyer Frank Jimenez for the seat. After a contentious nominating meeting where some members questioned Crist's motives, Jimenez made the list."

http://projects.newsobserver.com/under_the_dome/yet_another_name_for_fou...

"A Dome reader sends along one more name for the Fourth Circuit.

Following on the logic of other would-be judges, the legal insider writes that S. Elizabeth Gibson of the UNC-Chapel Hill School of Law may also be under consideration.

Gibson clerked for the U.S. Court of Appeals and the U.S. Supreme Court and worked for a Washington, D.C., law firm before becoming a professor.

She was nominated under President Clinton as well.

Other names previously mentioned: James A. Beaty Jr., Charles Becton, Robert Spearman, Rich Leonard, Jim Wynn, Patricia Timmons-Goodson and Martha Geer."

As I have said before, I anticipate that Obama will nominate Wynn and Gibson to fill the North and South Carolina seats presently available on the Fourth Circuit. I doubt seriously that Obama would nominate two African-Americans from North Carolina. Gibson or Geer, both white women, would nicely balance whichever African-American male Obama may nominate from North Carolina. I think Gibson has the inside track simply because she was a failed Clinton nominee.

Both Wynn and Gibson benefit from being failed Clinton nominees for two reasons:

1) as previous nominees, they have already had FBI background checks and ABA ratings done. If Obama wants quick confirmations, it would not be difficult to quickly update the information on these two nominees.

2) the Senate Dems would love nothing better than to stick it to the likes of Orrin Hatch by geting nominees blocked by the Republicans in the 106th Congress confirmed.

[I've said/written for a year or two that Sen. Reid would either retire or could lose in 2010. The following is from the first part of an article linked at Drudge.]

Sen. Reid Hits the Ground Running in Uphill Re-Election Bid Article
Comments ()
more in Politics »By T.W. FARNAM
WASHINGTON -- Sen. Harry Reid will command the biggest party majority of any Senate leader in a quarter century when the new Congress convenes in January. But the Nevada Democrat is already worried about his own re-election fight in 2010.

Sen. Reid, perhaps the most-vulnerable Democrat who will face re-election in a midterm race that is likely to favor his party once again, began interviewing campaign managers last week. The Senate majority leader also recently stepped up fund-raising.

Starting early could help Sen. Reid avoid the fate of his predecessor, Tom Daschle, who was Democratic leader for a decade before losing his re-election bid in South Dakota in 2004. The current Republican leader in the Senate, Mitch McConnell, narrowly won re-election in Kentucky this year.

View Full Image

Associated Press
Senate Majority Leader Harry Reid
Sen. Reid "saw what happened to Tom Daschle and Mitch McConnell," said Republican Sen. John Ensign, Nevada's the other senator. "He saw the consequences of being the majority leader or the leader of one of the parties."

Jon Summers, a Reid spokesman, said Sen. Reid knows he will be a Republican target in 2010 and has been preparing for his re-election campaign for some time. He added that Sen. Reid's leadership position in the Senate is an asset, not a liability. "Being the majority leader means he can do things no one else can."

Democrats have picked up a combined 13 seats in the past two election cycles. In 2010, more Republicans than Democrats are up for re-election, and Democratic incumbents appear to be well-positioned overall.

Sen. Reid, however, faces a potentially tough fight. A recent Research 2000 poll of likely voters put his approval rating at 38% and his disapproval rating at 54%, a possible reflection of voters' displeasure with gridlock and partisanship in Washington. And while Nevada broke for President-elect Barack Obama by 12 percentage points in November, the state voted for President George W. Bush in 2000 and 2004.

[I've said/written for a year or two that Sen. Reid would either retire or could lose in 2010. The following is from the first part of an article linked at Drudge.]

Sen. Reid Hits the Ground Running in Uphill Re-Election Bid Article
Comments ()
more in Politics »By T.W. FARNAM
WASHINGTON -- Sen. Harry Reid will command the biggest party majority of any Senate leader in a quarter century when the new Congress convenes in January. But the Nevada Democrat is already worried about his own re-election fight in 2010.

Sen. Reid, perhaps the most-vulnerable Democrat who will face re-election in a midterm race that is likely to favor his party once again, began interviewing campaign managers last week. The Senate majority leader also recently stepped up fund-raising.

Starting early could help Sen. Reid avoid the fate of his predecessor, Tom Daschle, who was Democratic leader for a decade before losing his re-election bid in South Dakota in 2004. The current Republican leader in the Senate, Mitch McConnell, narrowly won re-election in Kentucky this year.

View Full Image

Associated Press
Senate Majority Leader Harry Reid
Sen. Reid "saw what happened to Tom Daschle and Mitch McConnell," said Republican Sen. John Ensign, Nevada's the other senator. "He saw the consequences of being the majority leader or the leader of one of the parties."

Jon Summers, a Reid spokesman, said Sen. Reid knows he will be a Republican target in 2010 and has been preparing for his re-election campaign for some time. He added that Sen. Reid's leadership position in the Senate is an asset, not a liability. "Being the majority leader means he can do things no one else can."

Democrats have picked up a combined 13 seats in the past two election cycles. In 2010, more Republicans than Democrats are up for re-election, and Democratic incumbents appear to be well-positioned overall.

Sen. Reid, however, faces a potentially tough fight. A recent Research 2000 poll of likely voters put his approval rating at 38% and his disapproval rating at 54%, a possible reflection of voters' displeasure with gridlock and partisanship in Washington. And while Nevada broke for President-elect Barack Obama by 12 percentage points in November, the state voted for President George W. Bush in 2000 and 2004.

I actually think Reid's seat in NV is going to be pretty tough for the GOP to win, given that of the four Republicans who are likeliest to run against Harry, two (Rep. Jon Porter, whom the article mentions, and State Sen. Joe Heck) just lost their own seats last month. The other two are Lt. Gov. Brian Krolicki (just got indicted as the story notes, so he's not electable), and U.S. Rep. Dean Heller, who appears most interested in running for governor. Although he used to be a rising star, Gov. Jim Gibbons is out, given his late-night text-messaging of women (not his wife) on his state BlackBerry, his ongoing divorce, his hanging around with a Playboy Playmate and allegations of him having s*xually assaulted a woman. And Reid knocked popular former Attorney General Brian Sandoval out of the running a few years ago by getting him a lifetime district judgeship. I'm really not sure who else is out there. The tougher problem for the GOP is that the party is in total disarray (Libertarians vs. social cons); there's a lot more internal strife within the state Republican party than there is among the state's Democrats (who have been registering new voters like fiends).

I wish the WSJ article had addressed that party dynamic more, because I think the article gives false hope that Reid's seat is in play. It isn't.

note the 100k lead the Dems now have in registrations.

But my counter to that is two-fold--how many of those were registered by Obama and Clinton supporters, who won't bother to vote in 10?; and might the Federal situation be so bad by 10 that plenty of people will vote for change (woops, did I write that?).

I'm sure the GOP will unite behind someone who can be Sen. Reid, who has not been without his family scandals. Plus, wouldn't people be interested to know that he went to Puerto Rico of all places to meet with donors?!

http://www.politico.com/news/stories/1208/16832.html

"Sixteen appointees and advisers helping president-elect Barack Obama's Justice Department transition efforts all recently sat on the board of an organization little known outside legal circles: The American Constitution Society for Law and Policy.

The liberal legal network, which blossomed during eight years of Democratic exile, counts as its veterans Obama’s choice for attorney general, Eric Holder: Vice President-elect Joe Biden's chief of staff, Ron Klain; and future White House Staff Secretary Lisa Brown."

He is not very likely to have an opportunity to apply for an 8th Cir. position. He is from Iowa, which in recent years has had two seats and is unlikely to get a third. (Note that Evans is from Wisconsin and sits on the 7th Cir.) Melloy, who was confirmed in 2002, is now 60. Colloton, who was confirmed in 2003, is now 45.

Bart makes a great point about Bennett, and I should amend my lengthy comment (#12) above. I had a temporary brain cramp -- Bart is of course right that Bennett is an *Iowan* and thus wouldn't be eligible for Evans' *7th* Circuit *Wisconsin* seat (I was tripped up, I think, by the fact that I had read that Bennett was *born* in Wisconsin). Instead, as an Iowan, Bennett only is eligible for one of the two *Eighth* Circuit COA seats generally thought to belong to Iowa.

And indeed, it does not appear that Iowa's two COA judges are going anywhere anytime soon. By the time Melloy takes senior status (2013 at the earliest), Bennett himself will be at least 63, and indeed, Colloton's a whole lot younger (he turns 46 in a few days). So, Bennett has no shot at a COA job, unless 1) Obama appoints him to the DC Circuit (not gonna happen); 2) Melloy or Colloton die or unexpectedly resign (not gonna happen); or 3) Iowa gets a new 8th Circuit seat in a future judge bill.

....when it comes to his stated desire not to seat this fellow Roland Burris in the U.S. Senate. I have no idea what Harry is thinking, constitutionally speaking, other than trying to apply the maximum amount of bluster-filled public pressure.

The facts (fascinating as they are) are as follows:

--Burris is not tainted in this scandal at all

--Although Illinois' Secretary of State is pledging not to certify Burris, I'm not sure legally he can prevent Burris from being certified; he's on shaky grounds here at best (maybe he can delay it for a time while Blagojevich and Burris appeal his refusal to the Illinois Supreme Court, but that'd be about it)

--The Constitution makes the U.S. Senate the Judge of the Elections, Returns and Qualifications of its members, and while the first two of those don't apply here, the third one obviously does. However, the SCOTUS' 1969 Adam Clayton Powell case (Powell v. McCormack) makes clear that the only things at issue are a persons *constitutional* qualifications (i.e., is Burris an Illinois resident, is Burris at least 30, has Burris been a U.S. citizen for the last nine years). If the Senate refuses to seat Burris, I'd expect Blagojevich and Burris to file an emergency appeal with the SCOTUS, which I'd guess would do the constitutionally correct thing and order Burris seated. Dems could shun Burris for the next two years, but of course they wouldn't ultimately do that; they'll want his vote to try to help defeat the filibuster.

--Harry's playing a stupid game of public pressure here -- and it's one that he's going to lose. In fact, I don't know what his "out" is right now -- maybe he's only hoping for enough delays in order to run out the clock until the Illinois legislature impeaches and convicts Blagojevich. Harry's only other place for cover involves the president-elect; if he blesses this choice (and it's going to be hard for him not to), that alone may be enough cover for Harry, Dick and the other Dem leaders to change their minds on Burris.

--It's appalling how little Dem leaders at the national level seem to understand the Constitution.

--The bottom line? I think Burris ends up in the Senate by inauguration day -- Blagojevich impeachment or not.

Based on the remarks today by Rep. Rush, every liberal who ever criticized Justice Thomas for his use of the phrase "high-tech lynching" during his confirmation hearings owes the Justice both public & personal apologies immediately.

For those of you more 'well-connected' than I, please forward this along to every conservative website & commentator you can think of.

And quite frankly, Focus On The Family censoring Glenn Beck due to his Mormon faith is equally disgraceful, IMO. Guess a lot of so-called conservatives prefer being backbench whiners to being in charge and having the responsibility to get things done.

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

I think Judge Sandoval would be an attractive opponent to Harry Reid in the next election in Nevada. He has a solid resume and is Hispanic to boot (never hurts these days, especially in the old Mexican Cession territory). Also, anyone with half a brain should be able to defeat this steaming mass of human refuse. It's a wonder Reid ever made it out of grade school.

Sandoval, Brian Edward

Born 1963 in Redding, CA

Federal Judicial Service:
Judge, U. S. District Court, District of Nevada
Nominated by George W. Bush on March 1, 2005, to a seat vacated by Howard D. McKibben; Confirmed by the Senate on October 24, 2005, and received commission on October 26, 2005.

Education:
University of Nevada, Reno, B.A., 1986

The Ohio State University Michael E. Moritz College of Law, J.D., 1989

Professional Career:
Private practice, Nevada, 1989-2002
Member, Nevada State Assembly, 1994-1998
Nevada Gaming Commission, 1998-2001
State attorney general, Nevada, 2003-2005

Race or Ethnicity: Hispanic

Gender: Male

the losing battle re the Burris appt. I hope it all leads to a GOP senate pick up in 10.

Along with that, Sandoval does indeed sound like a fine candidate to run against Reid in 10.

What do you make of the rumor that Patterson will appt. a place holder such as Bill Clinton or Andrew Cuomo. Bill might enjoy being in elections again. I have even less certainly that Cuomo wouldn't run in 10. I'm still rooting for Carolyn, so King can beat her like a drum.

the losing battle re the Burris appt. I hope it all leads to a GOP senate pick up in 10.

Along with that, Sandoval does indeed sound like a fine candidate to run against Reid in 10.

What do you make of the rumor that Patterson will appt. a place holder such as Bill Clinton or Andrew Cuomo. Bill might enjoy being in elections again. I have even less certainly that Cuomo wouldn't run in 10. I'm still rooting for Carolyn, so King can beat her like a drum.

and this post. Thanks.

The Boston Globe is reporting that the top two contenders for Solicitor General are Elena Kagan and Kathleen Sullivan, and that David Ogden will become Deputy Attorney General:

http://www.boston.com/news/politics/politicalintelligence/2009/01/harvar...

Would SG be a better stepping-stone to the SCOTUS for Kagan than being Deputy AG, or are they basically the same in terms of her being in line for the Court? Would it be a stepping-stone to the SCOTUS for Kathleen Sullivan? I would assume that whichever one is *not* chosen would be in line for the DC Circuit.

Besides failing the California Bar the first time, Sullivan is an open lesbian. I just don't think Obama or the American public is ready for a gay Supreme Court justice yet. I have my suspicions about Kagan as well, but she does not appear to be openly lesbian.

I have read in the New York Times and Washington Post that gays are furious with Obama for not naming an openly gay person to a cabinet level position. In addition, they are furious that Obama chose Rick Warren as one of the speakers at his inauguration. Also, Obama aides have said that Obama has no plans to get rid of "don't ask, don't tell" at least during the first year of his presidency is over. This tells me that it is highly unlikely that Obama would name openly lesbian Sullivan as a Supreme Court justice. I don't think as much is known about Kagan, which would make her a more acceptable nominee to the American public in general. Personally, I think Sonia Sotomayor has a much better chance than either Kagan or Sullivan because she is Hispanic.

Here's the text of what StayUpLate referenced above:

Harvard law dean reportedly in line for solicitor general
Posted by Foon Rhee, deputy national political editor January 2, 2009 05:36 PM

Harvard Law School Dean Elena Kagan is a leading candidate to be President-elect Barack Obama's representative at the US Supreme Court, Bloomberg is reporting this afternoon.

Bloomberg, quoting "people familiar with the selection process," says Kagan, the first female dean at Harvard law school, and former Stanford Law School Dean Kathleen Sullivan are the two top contenders for solicitor general, a post that might be a step toward a seat on the Supreme Court itself.

Kagan, 48, became a top candidate for solicitor general after being passed over for deputy attorney general, a slot set to go to Washington lawyer David Ogden, people familiar with the selection process said.

Bloomberg says that Kagan, seen by some people involved in the transition as the favorite for solicitor general, would likely garner bipartisan support. She won plaudits from liberals and conservatives alike for smoothing over the ideological tensions that plagued the Harvard Law School faculty before she became dean in 2003.

Kagan, who has never argued a Supreme Court case, has a long-standing connection to Obama. The two worked on the University of Chicago Law School faculty at the same time during the 1990s.

Sullivan has plenty of experience as a litigator, including considerable experience before SCOTUS. I think she makes more sense as SG, especially since she makes less sense for DC Cir and SCOTUS than does Kagan. Whoever is SG would have considerable recusal problems if elevated to SCOTUS.

have a new thread, such as a New Year's open thread?

Thanks again for keeping this site going!

What about Souter??

I also agree with you. I think Sotomayor has to be considered the favorite to be Obama's SCOTUS pick, if and when he has one. She has been a reputable COA judge for over a decade, she has Ivy credentials (important for Obama), she is Hispanic (very important for Obama and liberals in general), and she has a reputation of being relatively moderate and fair, at least in comparison to other liberal judges.

I would put Sotomayor, Kagan, and Sears (Georgia SC chief judge) at the top of Obama's wish list. All would be easily and overwhelmingly confirmed.

Some thoughts in response to everyone's fine comments:

--It's pretty obvious that Kagan will be SG. But no matter whom Obama chooses between Kagan and Sullivan, his choice will be the nation's first female Solicitor General, as a blogger noted today: http://www.politicalbase.com/profile/Chris%20Brown/blog/&blogId=5766

--Although I think Kagan could pretty easily go from Harvard Law straight to the SCOTUS, I doubt Sullivan could follow such a path; she has well-known advocates like Laurence Tribe, but I just think she's a little too "out there" (especially geographically, but also philosophically) to be able to advance directly from a law school to the SCOTUS. But if Kagan accepts SG, I could very much see Sullivan going to the DC Circuit or the 9th Circuit. Assuming she'd be confirmed to a COA, it'd be harder for the issues BoBo raised (her flunking the CA bar once, her apparent orientation) to trip her up in a subsequent SCOTUS nomination, I'd guess (especially with Dems dominating the confirmation process in the next two years). By a second set of confirmation hearings for her during, say, 2011-2012, those issues probably would be old news (especially failing the bar).

--I agree that it's not clear if America is ready for a gay Supreme Court justice. But a year ago, a lot of people thought the U.S. wasn't ready to elect a black president, and we see how that worked out. My guess is that if Sullivan ever were nominated to the SCOTUS (which would really have to be under Obama; under any subsequent president, she would be too old), her orientation probably would hardly come up at all. How exactly does a senator (or a journalist, or a conservative advocacy group) bring that up, without being accused of homophobia? Especially because she's not *that* openly gay (Google her; she doesn't appear to have ever publicly identified herself as a lesbian -- it's only been mentioned in articles written by others, and most of those (besides a Salon.com article) have looked like hearsay anyhow). Sullivan definitely has worked as an advocate for gay and lesbian issues and she's surely gay, but by the same token, she doesn't seem to have ever publicly called herself a gay woman (or permitted advocates of hers to identify her that way). It would make confirmation hearings kind of weird -- colorful, to be sure! The other thing is that the GOP has its own issues with gays right now; compare how senators hauled Larry Craig out back and shot him with what they did (or rather, didn't do) to the adulterous, law-breaking "john" David Vitter. It was a clear double standard that can only be explained by one thing; the Republican Party has problems with gays. Why that matters here is that I think coming down too hard on Sullivan (or any apparent or rumored gay nominee) in *any* confirmation hearing for her orientation (especially if she's never personally "come out" publicly herself) would run the risk of a huge backlash. The GOP has enough problems right now to want to invite another one, and I'd submit that while culture "wedge" issues worked -- sort of -- in 2000 and 2004, they clearly did *not* work with voters in 2008.

--I'm not sure that Obama actually has that big of a problem with gays right now. If anything, I think what he's doing is trying to co-opt evangelicals by reaching out to Warren, holding the line on don't ask don't tell, etc. I don't think he expects to co-opt all evangelicals, but he's trying to break them up and keep them from following the GOP en masse. It's actually a really smart strategy (and one that should scare the daylights out of the GOP). But make no mistake about it; policy-wise, Obama is very pro-gay and will end up installing gays in positions of importance. And I think longer-term, on the issues that matter to them, he'll end up on their side.

--Sullivan indeed has a decent amount of experience as a litigator. If I were on Obama's team and supporting his agenda, I'd probably make Sullivan the SG and stick Kagan on the DC Circuit.

--There really was never anything other than insinuations about Souter's orientation (though there was some evidence of his having dated women over the years). But with nothing more to go on (plus, given that he was nominated by a Republican president), there wasn't much that concerned senators could really do at the time. Same with Janet Reno; most people probably assume she's gay. But there was never any evidence of that, and I'm sure it never came up in her confirmation hearing either. Those are instructive situations for how hearings might proceed for Sullivan, Kagan, or even Pam Karlan (who is indeed openly gay), if Karlan is ever nominated to the Ninth Circuit.

--It's also true about Sotomayor's appeal to Obama given her Ivy credentials. Obviously, Sotomayor, Kagan and Sears will be high on his list, as will be Teresa Wynn Roseborough and even Diane Wood (a Chicagoan who probably is very familiar to Obama). What I don't know is how close Obama is personally to Kagan; everyone knows (as the AP article notes) that they bought taught at U of C for three years together. So presumably are good friends (she probably wouldn't be in the running to be his SG if they weren't!). And in fact, despite the clear push for a Hispanic nominee, Obama still may end up elevating Kagan as the first nominee, straight from the SG's office (and even if she's only SG for a few months). Stranger things have happened. On the other hand, it's widely thought that Obama "owes" Hispanics, so I agree with everyone that Sotomayor has to be considered the heaviest favorite. Who would be a different Hispanic female nominee if not Sotomayor? Maybe Kim Wardlaw (who's very close to the Clintons, who clearly have a role in Obamaland). As we sit here right now, it's hard to think of other immediate Hispanic female SCOTUS options for Obama, other than Sotomayor and Wardlaw.

The problem with Wardlaw is that she is not obviously Hispanic, and to liberals appearance is nearly everything. She is quite WASPy looking in appearance: petite, blond, blue eyes. Her name is also not Hispanic, and thus Democrats would be forced to quite explicitly say "Oh by the way she's Hispanic," which might look just a wee too much like over-pandering.

Within the confirmation process, as StayUpLate alludes to, I think what really matters more is not whether a nominee is actually gay but whether a nominee is perceived to be openly gay with a "gay" agenda. Souter may be gay, but his confirmation was not based upon that fact because he has never defined himself as being gay by supporting particular gay causes.

Much the same can be said about Kagan. As far as I know, Kagan has never defined herself as a lesbian, aligned herself with any "gay" organizations or been vocal in her support of gay causes. If she is gay, and I have no concrete evidence to suggest she is, she has kept it in the background of her live and has not expressed any political agenda because of it. That's what in my mind would make her nomination to a CCA seat or the Supreme Court much easier than the nomination of either Sullivan or Karlan, both of whom have actively supported gay causes by writing amicus briefs in well-known gay rights cases.

In general, I think Sullivan has been much more discreet in her lesbianism than Karlan. While I can easily see Sullivan's successful confirmation as Solicitor General due to her litigation experience, I think she would have a much more difficult time if nominated to a CCA seat or the Supreme Court. There might be a lot of questions about her political agenda as expressed in her amici briefs.

I don't see Karlan having much chance at all of a successful CCA or Supreme Court confirmation. Her radical social agenda (not just talking gay issues here) would assuredly make Senate Republicans block her for either the D.C. Circuit or Supreme Court. The only court I could see her getting on is the 9th Circuit, and still see some problems associated with that nomination.

In conclusion, I also think that it would be best for Obama to nominate Sullivan for SG and Kagan for the D.C. Circuit. Karlan should be left alone and not nominated for anything.

Which of the possible SC nominees for Obama are

1) Gifted Intellectuals

2) Seriously wrestle with conservative judical arguements (not just dismiss them out of hand, but show true professional respect for his or her fellow justices)

3) Will vote with conservatives if convinced by their arguements. (has enough integrity to buck what is politically expected of them if their conscience tells them that is constitutionally what is required)

I guess I am asking which of these liberial leaning possibilities has a mind of their own and would not take marching orders from the Daily Kos on every case that comes before them? I think that is the best we can hope for.

http://www.sun-sentinel.com/news/politics/elections/sfl-flfsupco0103sbja...

"Veteran Palm Beach County Circuit Judge Jorge Labarga was elevated to the Florida Supreme Court Friday, becoming the second Cuban-American named to the state's highest legal panel.

Gov. Charlie Crist chose Labarga, of Wellington, after a controversy-filled interview process that pitted the governor against high-profile lawyers who claimed the judicial selection process had been politicized.

Labarga — Crist's third selection for the court in the last five months — replaces Justice Harry Anstead, who hit the mandatory retirement age of 70."

http://www.tampabay.com/news/politics/state/article956410.ece

"Labarga was one of a handful of Florida judges who handled various legal challenges during the 2000 presidential recount. His decisions include a ruling that it was up to the Palm Beach County canvassing board to decide what constituted a vote under the old punch card system, and his dismissal of a Democratic lawsuit that sought a "re-vote" to determine who won the presidency.

In 2007, Labarga made remarks from the bench that raised questions about his judicial temperament.

"When you pick a fight with a judge, ultimately, you are going to lose," he said. "Not today, but five years from now, 10 years from now, six years from now. That judge is going to remember you always, always."

Fort Lauderdale lawyer Gary Kollin was the target of Labarga's words after the two had sparred in court more than once. Kollin sent Crist a letter calling Labarga's comments a violation of the Code of Judicial Conduct, subject to sanctions by the Florida Supreme Court.

Labarga disqualified himself from the case because one of the lawyers in the case was his former law partner.

The judge said Friday that he should not have made the remarks."

OBAMA MUST PICK JUDGES FAST

http://www.philly.com/inquirer/opinion/20090104_Obama_must_pick_judges_f...

"One of the most significant assignments that the Constitution delegates to the president is the appointment of federal judges. One of the initial tasks that President Barack Obama should undertake in discharging this crucial responsibility is to fill the two vacancies on the 14-member U.S. Court of Appeals for the Third Circuit with outstanding jurists.

Of the remaining 11 regional circuits across the country, only the Fourth Circuit, with four openings, has more empty judgeships than the Third Circuit.

The two Third Circuit vacancies are critical, as they undermine the delivery of justice by the tribunal, which is the court of last resort for 99 percent of appeals that come from the Delaware, New Jersey, Pennsylvania and Virgin Islands district courts."

http://www.boston.com/news/education/higher/articles/2009/01/04/shes_tha...

"In her five years at Harvard Law School, Dean Elena Kagan used her considerable clout and persuasive powers to steal faculty from other law schools, break fund-raising records, and win the hearts of students. When Kagan was passed over for the university presidency after the departure of Lawrence Summers, a group of 600 law school students held an impromptu party wearing "We (heart) Elena" T-shirts.

Now Kagan, 48, just might be going away after all, this time to Washington. She has emerged as a top contender for the job of solicitor general, a partisan post that is often a stepping stone to a Supreme Court nomination.

Harvard law professor Charles Fried said her appointment would be a loss for the law school. "The place is like it's never been before," Fried said. "She has managed to calm the factionalism, so it's completely disappeared. I think she knocked a few heads, but she worked by and large by persuasion."

Kagan did not respond to requests for interviews yesterday. The Associated Press, quoting a person who had been briefed on the process, reported Friday night that Kagan has emerged as the leading candidate for the post. The solicitor general acts as the president's representative before the US Supreme Court.

Kagan reportedly met president-elect Barack Obama when the two worked on the University of Chicago Law School faculty in the 1990s. She started teaching at Harvard in 1999, after stints as a White House lawyer and domestic policy adviser in the Clinton administration. Summers named her dean of the law school in 2003, hoping she would shake up a school culture he viewed as complacent."

http://www.eppc.org/publications/pubID.3651/pub_detail.asp

"Dwight Eisenhower called his appointments of Chief Justice Earl Warren and Justice William Brennan his two biggest mistakes as president. With ample reason, George W. Bush regards his appointments of Chief Justice John Roberts and Justice Samuel Alito as two of his best decisions."

"To the essential virtue of judicial restraint, Roberts and Alito both add the virtue of (relative) youth. Roberts, who became the youngest chief justice since John Marshall, is still only 53, and Alito is 58. It is reasonable to hope that they -- and Clarence Thomas, who is only 60 (and nine years younger than the next youngest justice) -- will serve on the Court for a long time to come.

The fiasco of the Harriet Miers nomination must be acknowledged. Whatever Miers's merits, she was surely not in the top tier of qualified Supreme Court candidates. As Reagan did with O'Connor in 1981, Bush made the mistake of deciding in advance that his nominee must be a woman, and Miers was somehow the only one left standing after other, better-qualified candidates were knocked off the list. The conservative movement deserves credit for grasping the importance of what was at stake and objecting vociferously (some publicly, others privately). Bush in the end also deserves credit for taking the difficult step of withdrawing the nomination of his longtime friend. Thus, a Justice Miers is not part of his legacy in the way that O'Connor, alas, is part of Reagan's."

"President Bush's record on lower-court appointments is much more mixed. Let's begin with the numbers. Bush appointed 62 judges* to the federal courts of appeals. That's even fewer than the 65 that President Clinton appointed, amidst bitter Democratic complaints and media buzz about a confirmation slowdown by Senate Republicans. Bush's total also includes three of Clinton's unsuccessful nominees whom Bush renominated -- two in 2001 in unrequited gestures of goodwill, and one in 2008 as part of a Sixth Circuit deal."

"There is no evidence that the Bush White House ever developed a general strategy to counter Democratic obstruction and Republican indifference in the Senate, and, especially once Democrats regained control of the Senate, it's far from clear what strategy would have been effective."

I really dislike it when a knowledgeable man like Whelan continues a falsehood. Bush did NOT appoint three unsuccessful Clinton nominees to the Courts of Appeal. He only appointed two - Roger Gregory and Helene White. Barrington Parker was NOT a failed Clinton nominee. In actuality, he was a successful Clinton nominee - as a district court judge. Clinton NEVER nominated Parker to a CCA seat.

I'm just back from vacation and catching up. BillM, I'm not sure what you're referring to in post #41. Can you enlighten me? I know for a fact that Dobson has been on Beck's radio show as well as his television show a number of times, and they appear to be good friends. What "censoring" are you referring to?

Out of respect for Bell(RIP), I did not want to turn that into an open thread.

I give Reid credit for coming from absolutely nothing, unlike Teddy, Hilly & Chuckie, but his "service" has been the opposite of Bell's. He's just utter garbage. The Kossacks despise him, and he likely will have a serious primary challenge. I'd hate to see Sandoval lose his seat and not win the general, tho NV has a growing Hispanic pop. that could help him.

Here's the link to Dobson's cowadice viz. Beck: http://blog.beliefnet.com/news/2008/12/focus-on-the-family-pulls-inte.ph...

BTW I'm not Mormon but most of my family is.

Kagan for DCC & Sullivan for SG makes the most sense to me. Sully's F on the Cali bar kills her for SCOTUS IMO. Kagan sails thru from either springboard, tho Sotomayor has to be the fave right now. Wardlaw looks a bit like Heather Locklear; ain't happenin'.

The current GOP has no grounds whatsoever to have "suspicions" about anyone, nor do any squawking about "family values". We threw that card away along with the "competence" & "small government" ones. Similarly, this is why IMO McCain didn't go after Barry's birth certificate.

Whatever Souter is, it's deeply buried. Could well just be a hermetic asexual misanthrope, lost in his own little world. Didn't Poppy get any read at all when he talked to him? Why didn't Luttig jump in front of train or something? Irrevocable, unfixable disaster. BTW a couple of years ago, Souter had three mega-hottie (and brilliant) female clerks. One was valedictorian from UVA Law & a Wilkinson clerk, another had an electrical-engineering degree from MIT.

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

http://www.mcclatchydc.com/310/story/58949.html

WTF? Utter craziness, and most of the Kossacks are chuckling over it. Guess they don't remember who else will be an XPOTUS in 2023.

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

in this post 9/11 world that a president--and George W. Bush of all people!--would have to go without secret service protection when he's in his early 70's, with probably years (a couple decades?) of good living left!

I think lifetime Secret Service protection for all former presidents (including GWB, Obama and whoever comes next) will be restored at some point in the next few years. BillM is right that at some point, Dem congressmen will realize that Obama also will be at risk from post-presidency attacks by crazies. And, everyone will make the realization that both Bush and Obama will live for a long, long time after their presidencies are over.

I'm all for major, major cuts of government expenditures, but I think it's ludicrous that a former U.S. president would lack Secret Service protection at any time in his or her life. What will Bush have to do otherwise in 2019 -- hire a private security force with armed guards? (Answer: probably)

But it'll be restored. My guess is that this subject comes up in Congress either in early 2013 (if Obama loses re-election) or in early 2017 (if Obama wins a second term). Think about it -- by 2017, Bush will be closing in on losing his protection, and Obama will be a Dem ex-president himself. Both parties will have a huge incentive to pass such a measure. Sadly, the subject will come up even earlier among Congressmen if a terrorist attack happens or if (God forbid) a former president (Carter, Bush 41, Clinton) is the subject of some kind of attack.

http://legaltimes.typepad.com/blt/2009/01/superstar-elena-kagan-is-named...

"Early favorable reviews are coming in about President-elect Barack Obama's decision to nominate Harvard Law School Dean Elena Kagan to be the next solicitor general -- the first woman in the role."

I guess that means Cass Sunstein and some presently unknown person will be the new nominees to the D.C. Circuit. Who will be the mystery nominee? Koh, Roseborough, Sears?

If you're going to shoot, you may as well shoot for the moon, I suppose....

Quin's latest column (link below) aims for the stars in recommending that a great way for Obama to demonstrate domestic bipartisanship would be for him to renominate Peter Keisler to the DC Circuit. However, his column completely ignores the utter impracticality of such a move; Reid and Leahy worked really hard over the last two and a half years to run out the clock on Keisler's nomination -- so much so that even if Obama somehow *wanted* to renominate Keisler (which I can't believe is the case), I think Senate Dems actually would inform the White house that Keisler would be an unacceptable pick and that they wouldn't process him (and if they did, they might even have the votes to defeat Keisler on the floor anyhow).

Some other thoughts on Quin's column:

--Quin is wrong about Keisler ever being nominated to the Fourth Circuit. He was *considered* for nomination, but Bush didn't actually officially nominate Keisler to the Fourth Circuit because of opposition from the senators in MD (where Keisler lives).

--Keisler has indeed been treated shabbily by Senate Democrats. Unfortunately, his treatment is the norm now for COA nominees when the other party controls the Senate. We saw this at the end of Bush 41's term (as John Roberts and others can attest), we saw this during Clinton's entire second term (as Elena Kagan and others can attest), and we saw it these last two years with Keisler and others. I keep saying that to get any decent number of nominees through, you have to also control the Senate.

--Quin makes Bush 43 out to be a bit more magnanimous toward Democrats than was the case. Roger Gregory's renomination was indeed a fine gesture, but Bush had little choice -- Clinton skunked Bush by recess-appointing Gregory to the Fourth Circuit, and there were serious racial politics involved (and the attendant risks), I think, if Bush didn't renominate Roger. Barrington Parker's nomination also was nice enough, but NY's senators were never going to allow anyone too conservative to fill any of their states' COA seats anyhow. Finally, I'd argue that Helene White's renomination actually was a boon for *Republicans*; pretend for a moment that Bush had *not* accepted that deal (and I'm still a little surprised that he did). White would still be getting renominated this year by Obama, and Kethledge would be toast. Instead, that deal (painful though it might have felt to Bush) got a young COA judge on the bench who possibly could be a SCOTUS shortlister in another 5-10 years. In a year when the odds were high that a Dem would win the WH, it was a smart deal by Bush's team; in retrospect, I bet Bush's legal advisors wish he'd struck a few more of those (I personally remember BoBo floating a Kagan-Keisler DC Circuit deal a few months back).

--Quin is right that Senate Dems never bothered offering substantive reasons for not holding a hearing on Keisler because there aren't any. His *qualifications* scream DC Circuit (as did those of John Roberts, Merrick Garland, Judith Rogers, David Tatel, Janice Rogers Brown, Thomas Griffith, Brett Kavanaugh, Miguel Estrada, Elena Kagan, Allen Snyder and Peter Edelman). And in a different era (say, 20 or 30 years ago), Keisler would be on the DC Circuit right now. But DC Circuit seats are prized now by senators who see their value (re: grooming future SCOTUS candidates) in ways that senators didn't 20 or 30 years ago. It's a prize that Dems won't part with, especially given Republicans' treatment of Elena Kagan and Allen Snyder at the end of Clinton's presidency. I don't think it's lost on Dems that Bush's "magnanimous" gestures in 2001 pointedly *didn't* involve the DC Circuit; they instead were to seats on the Second and Fourth Circuits.

--If Obama renominates any of Bush's nominees, it won't be Keisler. It'll either be Paul Diamond (who I'd bet Specter, who as Quin noted should be cultivated by Obama, would far prefer to see renominated over Keisler anyhow) or Glen Conrad. No one else stands a chance.

--In retrospect, Bush probably should have nominated Keisler in place of either Griffith or Kavanaugh. He has better qualifications than either one of those two.

http://www.dcexaminer.com/opinion/columns/QuinHillyer/Quin-essential_cas...

http://www.mcclatchydc.com/227/story/59012.html

"In filling four senior Justice Department positions Monday, President-elect Barack Obama signaled that he intends to roll back Bush administration counterterrorism policies authorizing harsh interrogation techniques, warrantless spying and indefinite detentions of terrorism suspects.

The most startling shift was Obama's pick of Indiana University law professor Dawn Johnsen to take charge of the Office of Legal Counsel, the unit that's churned out the legal opinions that provided a foundation for expanding President George W. Bush's national security powers.

Johnsen, who spent five years in the Office of Legal Counsel during the Clinton administration and served as its acting chief, has publicly assailed "Bush's corruption of our American ideals." Upon the release last spring of a secret Office of Legal Counsel memo that backed tactics approaching torture for interrogations of terrorism suspects, she excoriated the unit's lawyers for encouraging "horrific acts" and for advising Bush "that in fighting the war on terror, he is not bound by the laws Congress has enacted."

"Obama also said that he'd nominate:

_ David Ogden, a top Justice Department official during the Clinton administration, as deputy attorney general, the No. 2 figure under attorney general nominee Eric Holder.

_ Elena Kagan, the dean of the Harvard University Law School and a former Clinton White House aide, as solicitor general. She'd be the first woman to hold the post.

_ Tom Perrelli, counsel to Clinton Attorney General Janet Reno from 1997 to 1999, as the associate attorney general who oversees civil matters."

BoBo asks a good question about who the DC Circuit nominees will be. If Obama was considering Sullivan as one of his options for Solicitor General, it's hard to see how he's not looking at her for the DC Circuit as well. So right now, I'll lay my money on Teresa Wynn Roseborough and Kathleen Sullivan. I still don't think it'll be Cass; would he really move again -- and begin a commuter marriage with his new bride -- so soon after his recent relocation to Boston? Maybe, but I doubt it. Koh is still in the running, although my hunch is that he ends up on the First Circuit if anywhere. Richard Roberts is a possibility as well, as are Beth Brinkmann and Virginia Seitz. But, I'll go with Roseborough (who I think Obama really wants to put on the SCOTUS eventually) and Sullivan (who Obama clearly must view favorably, since she was one of two finalists for SG).

http://www.boston.com/news/nation/articles/2009/01/06/obama_taps_harvard...

"Kagan, who as an academic specialized in charting the limits of the president's regulatory authority and as an aide to President Clinton tested them, is expected to play a key role in Obama's efforts to redraw such powers. Obama has criticized the Bush administration for expanding the powers of the presidency.

Among the first issues Kagan will face is crafting a legal strategy in the case of Ali Saleh Kahlah al Marri, a Qatari student being held in a Navy brig for alleged ties to Al Qaeda. A brief in the case is due before the Supreme Court next month. While Obama has criticized President Bush's assertion of a broad presidential power to hold combatants indefinitely without trial, he has not indicated how he wants government lawyers to approach this particular case, which could set precedents applicable to detainees being held at Guantanamo and elsewhere."

"Although she is viewed as a defender of civil liberties, Kagan's most influential scholarly writing was a 2001 defense of the Clinton administration's assertion of the right to direct federal regulatory agencies without congressional or court involvement. Based on her experience as a White House policy adviser, Kagan argued that without such centralized powers, agencies would suffer from "arteriosclerosis" and "ossification syndrome.""

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/05/AR200901...

"If confirmed, Kagan will fill a prestigious post sometimes likened to serving as the Supreme Court's "10th justice." The solicitor general's office advises the court on which cases warrant its attention, defends the government and takes positions in cases in which the administration deems it has a stake.

Kagan has extensive experience in the federal government and legal academia but limited courtroom experience. She was a clerk for Justice Thurgood Marshall but is not a member of the Supreme Court Bar and has never argued a case before the court, officials there said.

Walter Dellinger, a top Supreme Court practitioner and acting solicitor general for President Bill Clinton, said that would not be a hindrance. "She is a first-rate legal scholar, but she brings much more than that," Dellinger said. "She knows government, and she knows how to run institutions."

Kagan stood up to faculty unease over the hiring of Jack L. Goldsmith, who for a time had led the Office of Legal Counsel under Bush. Kagan also recruited Cass R. Sunstein, a prolific legal scholar and Obama friend from the University of Chicago, where she and Obama once taught.

"She is very, very highly respected by everybody I know," said Theodore B. Olson, a former Bush solicitor general who is a stalwart of the Federalist Society. He said Kagan has been "very gracious" to conservative students and faculty at Harvard, "and that isn't always the case at law schools around the country."

Kagan is often mentioned as a potential Supreme Court justice, though she has never been a judge. The title of solicitor general would give her an even more attractive résumé for a seat on the high court."

In the short-term, I think Kagan's appointment greatly reduces her chances of being nominated to the Supreme Court for two reasons:

1) In order to create stability within the SG's Office, it will be impossible to replace Kagan for at least two years. Kagan must reorganize the office and ensure that new policies are implemented. That will not be possible if her appointment is meant to be mere window-dressing for a Supreme Court seat. A quick exit by Kagan can only do harm to the SG's Office.

2) As SG, Kagan will be involved in hundreds of important federal cases. Unless she is nominates ASAP to the Supreme Court, she could potentially have to recuse herself from many of the new cases the Supreme Court will hear in the next few years. This problem only gets worse the longer she stays as SG.

For these reasons, I think Kagan has almost no chance for a Supreme Court appointment during the next two years. I think it time to start looking at other females, most notably Sonia Sotomayor and Leah Ward Sears.

I actually think that being SG will be a net neutral for Kagan. I'm not sure it actually *hurts* her chances for being nominated, but I also don't think it helps them much. BoBo makes good points about why it might reduce her chances. At the same time, though, Obama may not care about disrupting the SG's office, or about Kagan's recusals in her first years on the court. He certainly hasn't seemed to care much about ripping people out of their existing jobs to join his team (the lone exception I can think of is John Kerry, who I've read Obama very much wants continuing in the Senate and chairing the Senate Foreign Relations Committee). So, presumably Obama wouldn't care too much about pulling Kagan out of the SG and promoting her to the SCOTUS fairly early on. In addition, some previous SGs have either been appointed to the Court (Thurgood, Taft) or been championed (or unsuccessfully nominated) for it (Bork, Olson), so I don't think the recusal issue is a complete non-starter.

At the same time, however, given Kagan's relatively young age -- and given Obama's clear desire, in my mind, to diversify the Court -- I think Obama most likely sees Kagan as his second or third appointment to the Court. His first appointment will have to be a woman as well, and it will have to be a woman of color. I think BoBo is right that it's time to start looking at other females. And given the dearth of Hispanic female COA judges, my suspicion is that Obama will look heavily at African-American female judges for the first opening. Johnnie Rawlinson is obviously out of the running for ideology reason, so the short list for the first seat has to be Sotomayor, Sears, Wardlaw, and Roseborough (especially if Teresa gets on a COA pretty quick). I also have a weird feeling that Obama is more open-minded regarding age than his party cohorts would like him to be (he did pick a 66-year-old VP, after all).

Could Ann Claire Williams, who's from Chicago and a COA judge who was appointed by both Clinton (to the COA) and Reagan (to the district court) be an option? She doesn't share her political ideology, but I bet Obama knows her fairly well. Could she garner bipartisan support? I imagine so. She turns 60 this year.

http://www.nytimes.com/2009/01/07/us/07kagan.html?_r=1&ref=politics

"Most of Ms. Kagan's legal writings are dense, hedged and moderate. But in a 1995 review of a book on Senate confirmation fights, she made a statement she may come to regret.

“When the Senate ceases to engage nominees in meaningful discussion of legal issues,” she wrote, “the confirmation process takes on an air of vacuity and farce.” But she also described “the safest and surest route to the prize.” The trick, she said, is “alternating platitudinous statement and judicious silence.”"

On a more serious note, Adam Liptak calls her an early front-runner for the SCOTUS:

"The nomination makes Ms. Kagan an early front-runner for a seat on the Supreme Court. Justice Marshall was solicitor general before he was appointed to the court in 1967."