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Sunday, January 15, 2006 

Who is Next?

Since it seems that Judge Alito will be Justice Alito in the very near future, there has been a lot of speculation on Confirm Them as to the identity of the next Supreme Court nominee. I've mentioned my thoughts about this topic, fragmented in many posts. I thought that I would play along and examine a list of the possible candidates (in no specific order) in one big post...

J. Michael Luttig (4th Circuit Appeals Court): Luttig has always been mentioned as being on the short list. His clerks almost always go on to clerk for either Scalia and Thomas, prompting some to call him the "Tenth Justice". His duo of Padilla decisions might cause problems with both the White House and Democrats. Rumor has it that his meeting with Bush did not go well either. My view: He'd be a great pick, but it's the president's call to make. He's great as a clerk farm too.

J. Harvie Wilkinson (4th Circuit Court of Appeals): Wilkinson has been mentioned as a possible nominee for many, many years. Too many, in my opinion. He is in his early 60's, and I think that Bush wants a younger nominee. My view: He's great but he's too old.

Karen Williams (4th Circuit Appeals Court): I have picked Judge Williams (incorrectly) twice as the nominee for Justice O'Connor's seat. She is a very conservative judge on arguably the most conservative appeals court in the country. She's been on the court for almost 13 years. To my knowledge, she has never written about Roe. My view: She's a solid female pick, and I'm surprised that she wasn't chosen for one of the two openings. I guess Bush has really rejected affirmative action.

Edith Clement
(5th Circuit Appeals Court): Many thought that Clement was going to be the first Bush nominee (including Matt Drudge). She's a member of the Federalist Society, has been endorsed by Judge Bork, a strong believer in federalism, and looks a hell of a lot like my mom. My view: Bork's endorsement is usually enough for me, but I would like to know more about her views. Her views on federalism are excellent.

Emilio Garza (5th Circuit Appeals Court): Garza is a former marine (although there really is no such thing as a "former" marine) who has been on the court for almost 15 years. He has strongly criticized Roe. If Bush wants to nominate a Hispanic Justice, he's the most credentialed. My view: Garza has a long record, maybe too long. He would need Alito-like poise and patience to defend it before the Senate.

Edith Jones (5th Circuit Appeals Court): Jones has been rumored as the second choice behind Justice Souter of George HW Bush. Whoops. Jones is a 20 year veteran of the appeals court. She has directly criticized Roe as a raw exercise of judicial power. My view: Jones is a fire breather (as I have called them in the past). She's a tough lady and would not shy away from her statements. This might be problematic at a hearing.

Priscilla Owen (5th Circuit Appeals Court): Owen was confirmed as part of the Gang of 14 compromise. She has been reported to have turned down a Supreme Court nomination for the O'Connor seat. She has strong ties to Karl Rove, which could be more than problematic if he's indicted. My view: Too much baggage right now. Let's see what she does on the 5th Circuit for a few years then move from there.

Alice Batchelder (6th Circuit Appeals Court): Batchelder is a 14 year veteran of the appeals court. She is a fairly consistent conservative vote on the court. You can listen to one of her speeches here. There has been some concern about her age, since she is already in her 60's. My view: She's great but she's probably too old.

Frank Easterbrook (7th Circuit Appeals Court): Easterbrook has been on the appeals court for two decades. He is a protege of Judge Bork and a leading scholar in antitrust law. You will read Easterbrook cases in first year Contracts, no doubt. He's known as a stickler about the rules of the 7th Circuit and definitely suffers no fools during oral argument. He, like Justice Scalia, rejects the use of legistlative history in statutory interpretation. My view: I love Easterbrook but I don't think he'd do well at the hearings. He can't stand the stupidity of most attorneys; he's not going to take the colossal stupidity of senators. He would probably eat one of them.

Richard Posner (7th Circuit Appeals Court): In my opinion, Posner is the smartest judge on the appellate bench. His work in law & economics has changed how we view the law. He's written about a million books and he blogs, so there is a lot of ammunition to use against him. He's also in his late 60's. My view: He's brilliant but too old. Posner should've been on the Court in the 80's instead of Justice Kennedy.

Diane Sykes (7th Circuit Appeals Court): Sykes is a Marquette Law graduate and has been on the 7th Circuit for less than two years. Before that, she was a trial judge in Wisconsin and a member of the Wisconsin State Supreme Court. She is a member of the Federalist Society and has been a consistent conservative vote. My view: She's a solid, young conservative woman with a lot of supporters. She's also a Marquette Law grad, which is immediate cool points in my book.

Alex Kozinski (9th Circuit Appeals Court): Kozkinski is probably the most interesting federal judge. I've written seven posts about him on this blog. He's as young as Alito and was only 35 when he was appointed to the appeals court. Based on his temperament in oral argument, he would not roll over to the senators during a confirmation hearing. He would run circles around them and make them look like even bigger fools than normal. My view: These would be the best confirmation hearings of all time. He would make fun of the senators and just have a great time. Kozinski is also an great writer and legal thinker. His opinions would be great to read.

Michael McConnell (10th Circuit Appeals Court): McConnell has a resume like Chief Justice Roberts: appeals court and Supreme Court clerkships, work in the Solicitor General's office, arguments as a litigator before the Supreme Court, and time as an appeals court judge. McConnell is a respected First Amendment scholar with the support of many legal academics. He also argued and won the Boy Scouts of America v Dale case in front of the Supreme Court. My view: He's my pick, always has been.

William Pryor (11th Circuit Appeals Court): Pryor, like Owen, was part of the Gang of 14 agreement. He has been on the appeals court for less than two years and is only in his early 40's. Pryor famously called for the removal of Judge Roy "10 Commandments" Moore from the Alabama Supreme Court. Feingold doesn't like his vacation choices. My view: I like Pryor, mostly because he would piss off Feingold. Let's see Russ pull his Gay Day attack when a national TV audience is watching.

Janice Rogers Brown (DC Circuit Appeals Court): Brown was the other member of the Gang of 14 trio. She is a former California Supreme Court Justice, where she authored many "controversial" opinions about affirmative action, gun control, and free speech. She is a member of the Federalist Society and also an old friend of Justice Thomas. My view: She'd be great, but she would be ripped apart based on her previous statements. She's attacked the constitutionality of the New Deal programs (and rightly so), but that would play bad to the public. Brown would be tougher than nails at her hearing, but I don't know if that's enough to get her confirmed.

Paul Clement (Solicitor General): Clement, as SG, argues cases for the government before the Supreme Court. He has clerked for Judge Silberman on the DC Circuit and Justice Scalia. He's a Cedarburg native (Wisconsin represent!) and a former professor at Georgetown. My view: Clement is a smart guy, but he needs to get on a court and fast. Bush should appoint him to the DC Circuit near the end of the Bush term. Then he's primed for the next Republican president.

Viet Dinh (Law Prof; former Assistant Attorney General): Dinh was one of the architects of the Patriot Act. He's a Vietnam native who clerked for Judge Silberman and Justice O'Connor. He worked on the Senate's Whitewater Committee and with Sen. Domenici on Clinton's impeachment. My view: Same as Paul Clement.

Miguel Estrada (Former Assistant Solicitor General): Estrada was blocked by the Democrats as a nominee to the DC Appeals Court. He's a Honduran immigrant who clerked for Justice Kennedy and worked for the SG's office under Clinton. He withdrew his name for the DC spot after a ruckus by the Democrats over documents he wrote for the SG's office. He's spent his time since at Gibson, Dunn, and Crutcher, probably not starving. My view: He'd be great, but he doesn't want to go through the crap again. I think that he would get through this time though. Let's see the Democrats pull a BS filibuster when the entire country is watching.

Maureen Mahoney (Supreme Court Litigator Extraordinaire): Mahoney has been called the female John Roberts by some. She worked in the SG's office with Roberts and clerked for Rehnquist like Roberts. She has argued cases before the Supreme Court, most notably Grutter v Bollinger (which she won), which upheld affirmative action at the University of Michigan law school. Her personal support of affirmative action has been viewed as a problem to many conservatives. My view: Grutter really bothers me. Regardless, I can deal with one problem vote. Give Mahoney the Clement-Dinh treatment and let's see what kind of judge she is.

I left AG Alberto Gonzales off the list, because he's not going to be a nominee. Everyone worries about him, but it won't happen. AG is a good gig, and it would be just another battle to get a new one confirmed. Bush doesn't want or need that right now.

This is my long list. As I have said before, Michael McConnell is my pick. I think that he's got the intellectual force to lead the Court in the right direction. He'll be criticized as being too pro-Free Exercise Clause (although I would be too, so there's some of my bias), for his federalism views, and for his statements on Roe. McConnell's saving grace is that he's smarter than anyone on the Senate Judiciary Committee. He'll run circles around them just like Roberts and Alito did.

What about identity politics? Once a white male is confirmed for Justice O'Connor's seat, will identity politics matter? I certainly hope not. However, I think that public opinion will be strongly in favor of at least one female justice on the Court. McConnell could replace Stevens or Souter but not Ginsburg. Who could replace Ginsburg? If I had to choose, I would take Judge Sykes. Yes, I am biased because I'm in the 7th Circuit. I think we've got some of the best legal minds in the country, so I'm going to stump for them. The Alliance for Justice is not a big fan of her (which is a good sign that I will be a fan of her) and NARAL had a fit over what they called her "praise of abortion clinic protesters". I'm very in favor of Sykes.

This might be a wasteful exercise. The rest of the justices might last beyond 2008. I find that highly unlikely, but it could happen. Expect one more appointment at least. Souter and Stevens might take comfort in the fact that Bush hasn't picked ideologues for the Court. That might push them closer to retirement. Ginsburg, like Scalia, will have to be carried out of the Court. Expect those two to die on the bench and instruct their clerks to vote for them until the end of the term regardless. Remember that the former Rehnquist Court spent over a decade together. That's a huge bond. With these new justices entering the picture, the old ones might feel a great urge to bow out now. After all, their Court is done. It's going to be an interesting few years in Con Law.

EDIT: Wow, I'm a windbag.

I can't comment on all the judges on this list, but of the ones with whose work I am most familiar, my vote would go to Judge Kozinski, easily. I agree that the confirmation hearings would be really something. I'm just not sure President Bush has the huevos to nominate him.

Kozinski is a very long shot, because he can be unpredictable. There's no reason to nominate someone who is not going to be that 5th vote for a conservative majority when there are others who would be more reliable. It's all about getting to 5.

Nice analysis. I'd like to see McConnell as well-he's always been my pick. But his open rejection of Roe (though excellent) will preclude all but the most courageous President from picking him.

Roe is McConnell's biggest problem. But if I recall correctly, he took the "settled law" route at his appeals court confirmation hearing. Personally, I don't think there is such a thing as "settled law", certainly not for the Supreme Court. It's settled as far as McConnell's view from the 10th Circuit, but that view changes drastically when you take one of those nine chairs in DC.

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