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Tuesday, January 03, 2006 

The Bush Supreme Court Nominees

I think it's a safe bet that President Bush will get to nominate at least one more Justice to the Supreme Court. I'm making that assumption based on the age of Justice Stevens, the health of Justice Ginsburg, and the retirement rumors of Justice Souter (definitely the dark horse of the trio). Someone else will leave the Court by 2008. Who will Bush nominate?

I can't pick a name, since the list of possibilities is pretty long. It wouldn't be anything more than a dart board pick. However, there has been a pattern in his picks. I know you're looking at John Roberts, Samuel Alito, and Harriet Miers and wondering what the hell all three of them have in common. Take a look at them individually...

John Roberts clerked for Judge Friendly on the Second Circuit. He then clerked for Justice Rehnquist on the Supreme Court. He then worked for the US Attorney General and in the White House Counsel's Office. In 1986, he entered private practice and joined a DC law firm. That time in the firm was interrupted by a stint in the Solicitor General's Office under Bush 41. He was then appointed to the DC Circuit Court of Appeals.

Harriet Miers clerked for Judge Estes on a US District Court in Texas. She spent almost thirty years in private practice as a commercial litigator and was head of the state bar. She served as assistant to the President and Staff Secretary. She was Deputy Chief of Staff for Policy and later White House Counsel.

Samuel Alito clerked for Judge Garth on the Third Circuit. He served as Assistant US Attorney in New Jersey, and then Assistant to Solicitor General Rex Lee. He was then Deputy Assistant to Attorney General Ed Messe, followed by returning to New Jersey to serve as US Attorney. Since then, he's spent almost 15 years as a judge on the Third Circuit.

There are many differences between these three. Miers had no judicial experience, Roberts had little, Alito has a lot. Miers has had a lot of time in private practice, Roberts had a decent amount of time, Alito has had none. I believe that all three of these nominees have something in common though. The next nominee will also have this trait. President Bush believes that these nominees are people who will not "grow" while on the bench. He believes that they will have the same judicial philosophy in 20 years that they have now.

There is a lot of concern that new Justices will succumb to the DC social scene and feel pressured to vote in a certain way. That way is usually not what one would call judicially conservative. Roberts has spent his entire career in Washington, so Bush believes that he's been tested by this environment and has passed. Bush has known Miers personally for a long time, so he knows her ideology very well. He didn't think that she would change while on the Court, possibly from her somewhat scant social life (I guess she's a bit of a workaholic). Alito has worked both in Washington and on the Third Circuit. His judicial philosophy seems to have remained consistent during all of that time.

I think that is the key to the Bush Supreme Court nominees. He doesn't want to nominate another Justice Souter, whose nomination was probably his father's biggest mistake as president. Rumor has it that Judge Edith Jones was the second choice after Souter. Imagine how different the Court would be with Jones, a strong conservative judge, sitting in Souter's chair. At the very least, Casey would have come out differently. The next nominee will follow this trend. Everything else, gender, race, geography, takes a back seat to this. Supreme Court Justices are a president's legacy, and this president definitely wants to leave his mark on the Court.

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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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