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Wednesday, June 22, 2005 


What is the favorite activity of people in the legal profession (at least those I associate with)? Supreme Court nomination speculation.

It's just so much fun. When you live with the Court as de facto members of your extended family, you care who is on there. It seems like it is the season for our fever to infect everyone else. Bill Kristol thinks that O'Connor, not Rehnquist will be stepping down. It's definitely possible. O'Connor has publicly stated that she will only step down if a Republican president can name her successor. She is getting up there in age and has put her share of time in on the bench.

Kristol thinks Attorney General Alberto Gonzales will be her replacement. I don't know. I think there will be pressure to appoint another woman, but that might not be very strong. I think Gonzales serves Bush better inside the administration. Since Gonzales took part in most of the legal issues of the administration, he would have to recuse himself in cases involving those issues. That's not much of a help. Bush does want to appoint a Hispanic, but Garza would probably be better than Gonzales. If I were Bush, I would put the Hispanic thing on the back burner until Stevens steps down. That's a great way to get a moderate to moderate-conservative to replace the liberal Stevens. "I'm trying to make history here, the first Hispanic on the Court, why are you fighting it?"

The Rehnquist thing is so strange. Scalia recently said that he is doing much better than reported. I don't know if I buy it. I don't know if Rehnquist buys it. Rehnquist, more than any other justice, cares about the Court itself. He is going to do what is best for the Court, not himself. It is possible that he will try to stay on for another term. He might wait to step down until O'Connor's replacement is confirmed. That would lessen the frenzy of two vacancies at once. I just don't know if he's healthy enough to put in another term.

The Washinton Post has what they consider the updated list that the President is working from. McConnell seems to have fallen out of favor recently in some circles. I think there is fear that he will be this administration's Souter. He would have an easier time being confirmed, but why take the easy road and end up getting the shaft when he starts voting with the liberals? Of the short list, I'd want Luttig or Alito. Of my list, I'd want Pryor. He's too young to be Chief... yet. But he would be on the Court for a long time and it would be a nice FU to Feingold and Schumer. And I'm always for that.

Stevens really makes me wonder. He's getting old too, he's talked about retirement. But the question is whether he will retire and let Bush replace him. He might try to hold out but it's a long way to 2008. I think he will try to stay on but won't make it past 2007. No one wants a replay of Justice Douglas. It makes the Court as a whole look bad.

Here's my possible breakdowns:
Rehnquist replaced with Luttig as Chief
O'Connor replaced with Jones (if the female pressure is there)
Stevens replaced with Garza

Rehnquist replaced with Scalia as Chief
Scalia replaced with Alito
O'Connor replaced with Garza
Stevens replaced with McConnell

I could do this all day. And I would probably be nowhere close to what will happen. It's still fun (if you are a nerd). It would be funny if all three retired at once and Bush nominated Robert Bork, Ken Starr, and John Ashcroft as replacements.

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  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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