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Monday, November 20, 2006 

Post-Election: The Issue of Judges, Part 3

There has been a lot of talk about the nomination and confirmation of judges lately. There has even been some movement on appeals court nominees. I will discuss that and the implications for the future in Part 4 of this series. Now, I would like to focus on a hypothetical. Let's imagine that the current term of the Supreme Court has come to a close. The Court goes into summer recess. One of the elder Justices retires. The Democrats control the Senate 51-49. Who can win confirmation?

I'm going to examine three lists of nominees. The first list will be the one that Senator Schumer sent to the White House. Get ready for some laughs. The second list will be the candidates endorsed by former Judge Robert Bork. The third list will be my list of everyone else that has a shot but wasn't covered in the previous two. A warning: this is a very long post. I'm trying to be comprehensive in my analysis, and comprehensive usually means long.

Schumer's Posse

Let's start with Schumer's list...
The Honorable Arlen Specter, Republican Senator from Pennsylvania.

The Honorable Ann Williams, Judge, Seventh Circuit Court of Appeals, nominated by President Ronald Reagan to the Northern District of Illinois.

The Honorable Edward Prado. Judge, Fifth Circuit Court of Appeals, nominated by you and unanimously confirmed by the 108th Senate.

The Honorable Michael Mukasey, Judge, Southern District of New York, nominated by President Ronald Reagan.

The Honorable Stanley Marcus, Judge, Eleventh Circuit Court of Appeals, nominated by President Ronald Reagan.
Right out of the gate, I'm laughing. Senator Arlen Specter belongs nowhere near the Supreme Court. They shouldn't even let him in the building. His views on the First Amendment, the Equal Protection Clause, and other areas of Constitutional law are just incomprehensible. I'm hoping that he's got a different document that's erroneously labeled "US Constitution" and that he's been reading off of that for the past few decades. Otherwise... yikes. Schumer named him because Specter is pro-choice. That's it. I have a better chance of being nominated by this White House than Specter does.

Ann Williams
Judge Ann Williams is a Seventh Circuit judge, but I honestly don't know much about her. I can't help but be wary when Reagan nominates someone to the district court then Clinton is the one who elevates her to the appeals court. She has a reputation as a moderate. She has a solid resume, but I haven't heard her name mentioned anywhere other than Schumer's list for consideration. It's doubtful that she would get the nomination. If she did, she would probably win confirmation easily. Being the first Black female Supreme Court Justice would probably help that along.

Judge Ed Prado's name had been tossed around a lot after the first vacancy under President Bush. Check out the Draft Prado movement here. He is a Bush nominee, a Hispanic, and widely respected as a jurist. Schumer and other left of center groups support him because he's fairly moderate. I think it's safe to call him a liberal on criminal and federalism issues. He's more likely to take the conservative stance on business issues though. I could honestly see a Prado nomination and confirmation as a back up plan. If a nominee gets voted down, Prado would be the confirmable replacement. He'd be the Anthony Kennedy, not the Robert Bork.

Mukasey (District Judges Get Small Pictures)
I was honestly puzzled at seeing Judge Michael Mukasey on Schumer's list. Mukasey's claim to fame is being the trial judge in the Padilla case. I'm sure that some New York bias leaked into Schumer's choice here. I think that he would change his mind about this choice though. Read Mukasey's defense of the Patriot Act and tell me how that would play to the liberal base of the Democratic Party. He would be a tough War on Terror Justice and a possible ally of the Bush Administration on those issues. I don't think that any district court judge would be nominated, simply because the only appellate experience they have is from sitting by designation on the appeals courts. The last eight confirmed Supreme Court Justices had at least some time as a sitting appeals court judge.

Lame Joke, I Know
Judge Stanley Marcus gives me the same level of wariness as Judge Ann Williams. He is another Reagan appointee who was later elevated by Clinton. I haven't found much information on him anywhere, other than this strange Earthlink page that claims he hates Hispanics. I can't even find a picture of him. I doubt he would be nominated, but I haven't found anything that would block confirmation if he did get the nomination.

Team Bork

Bork's list is a little closer to a list that the White House would actually be using...
Robert Bork: I haven't got a list of three, I've got a list of about eight and I can't very well pick three from that group. Ted Olson, Raymond Randolph, a judge on the D.C. Circuit Court of Appeals, Frank Easterbrook (also a Court of Appeals judge), Michael Luttig, Jay Harvey Wilkinson, Edith Clement, and Edith Jones. There's also Samuel Alito.
In order to get into the mind of the opposition, I read this book, Right Wing Justice by Herman Schwartz. It manages to be a horrible book and a great book at the same time. Schwartz does everything in his power to paint conservative judges as puppy-eating, sunshine-hating trolls. The book is full of eye-rolling moments. However, it does provide a lot of information about how nominees would be attacked by opposition groups like People for the American Way and Alliance for Justice. Now, on to the list...

Ted Olson would be an interesting choice for the Supreme Court. Olson is not and hasn't ever been a judge. He did serve as Solicitor General and is one of the top Supreme Court litigators in the country. I doubt that Olson would get the nomination for a few reasons. First, he's old. At 66, Olson would be much older than Roberts and Alito at the time of their nominations. President Bush has shown a trend in nominating young judges. That makes sense. He wants his judges to be on the bench for a long time. It's a legacy thing. A second reason that Olson would not get the nomination is Bush v Gore. Olson argued and won this famous (or infamous, depending on your politics) Supreme Court case. There is still a lot of hostility from certain Democrats towards anyone involved in the case. There are a lot of old, festering wounds there. Also, Olson's lack of a judicial record would be a problem. The Senate Democrats would demand that Olson answer substantive legal questions to give them an idea of his views. It's highly unlikely that Olson would be nominated, and he would face significant opposition if nominated.

Judge Raymond Randolph is an interesting pick. He's very much a Bork-style pick for the Supreme Court. I haven't heard his name mentioned elsewhere as a potential nominee. Randolph and Bork worked together in the Solicitor General's office in the 1970s. Randolph has been on the DC Circuit for 16 years. He's been involved in some high profile cases, including Hamdan v Rumsfeld, Massachusetts v EPA (the greenhouse gas case that is going before the Court this term) and the Microsoft antitrust case. In another major case, he was also doubtful that Vice President Cheney had to disclose the inner workings of his energy policy task force. It's doubtful that he would be nominated because of his age (he's 63). I think that Randolph would also face serious opposition based on his record. It's a mile long and full of stuff that the Senate Democrats will hate. It's unlikely that Randolph would be nominated and would have a tough battle to get confirmed if he were nominated.

Bork seemed to be naming a lot of old employees in this list. He followed Judge Randolph with Judge Frank Easterbrook. Easterbrook also worked in the SG's office under Bork. Judge Easterbrook has been on the Seventh Circuit Court of Appeals for over two decades. It's hard to argue with Easterbrooks' experience and background. Aside from his time on the bench and as a government lawyer, he is also a top legal scholar in the areas of antitrust, corporate law, and statutory interpretation. The main line of attack on Easterbrook would be judicial temperment. He's not the most cuddly guy. He won't come across on TV like Roberts. He has been called arrogant, intolerant, and rude. At 58, I think that Easterbrook is at the age limit for any Court nominee from this White House. I would be surprised if he got the nomination, because of his record and he's got WMS (White Male Syndrome). If he did get the nomination, confirmation would be a huge fight. Easterbrook would have to win the PR war in the press. That would be the hardest part. He's the kind of nominee that the Senate Republicans should go to war to confirm though.

The Luttigator
Michael Luttig seems to be on everyone's short list (aside from Schumer's list) but the one that matters, the White House short list. He's got a resume that most lawyers would kill for (Scalia clerk, Burger clerk, time at the DoJ, 15 years on the Fourth Circuit Court of Appeals, and now a sweet gig as general counsel for Boeing). He was one of the biggest clerk feeders to the Supreme Court. I doubt he will get the nomination. There have been strong rumors that he and President Bush simply did not get along. There may even be some history there from when Luttig worked for Bush 41. There was also a clash between the administration and Luttig over the Padilla case. If he did get nominated, the fight would be as big (if not bigger) than the Easterbrook fight. Luttig has a long list of things for Democrats to hate. In Gibbs v Babbitt, Luttig narrowly read the scope of the authority of the Fish and Wildlife Service under the Endangered Species Act. In his opinion (a dissent from Judge Wilkinson's majority opinion), he also criticized Wilkinson for calling the Rehnquist Court's federalism cases "judicial activism." He voted to strike down parts of the Violence Against Women Act (as part of that federalism activism again). The Supreme Court did agree with Luttig and company, but many Senators (including Biden, who wrote the legislation) were ticked off about the courts striking down their laws. Luttig is another nominee worthy of Senatorial warfare.

J. Harvie Wilkinson has been one of those names reflexively on every Supreme Court list. He has a long career on the Fourth Circuit. He's seen as a solid conservative vote on most issues. He does have a few strikes against him, though. He talked to the New York Times about his Supreme Court interview. The Bush Administration saw that as a huge betrayal of confidence. Wilkinson also recently wrote an opinion piece opposing Constitutional bans against gay marriage. The Left has a lot of ammo to use against Wilkinson too. As a law professor and former newspaper man, Wilkinson has written many articles on many issues. His civil rights and affirmative action views might prick up some Democratic ears on the Judiciary Committee. His involvement in Dickerson (a move to overturn Miranda) and the Hamdi decision would provide a lot for the Democrats to attack. Wilkinson will not get the nomination because of all of the toes that he's stepped on. He'd have a long road to confirmation even if he did get the nomination.

E. Clement
Judge Edith Clement has had her name tossed around often in the past few years. She is a Bush-nominated judge on the Fifth Circuit Court of Appeals. Many people, including Matt Drudge, thought that she was going to get the original O'Connor vacancy (of course that went to Roberts, then Roberts was withdrawn to be Chief, and the spot went to Alito). I've read a lot of people wonder "Why her?" Don't get me wrong. Judge Clement has had quite a career. She had 10 years on the district court before being elevated to her current spot. She's a prominent Federalist Society member and an open Scalia fan. Beyond that, she hasn't shown us much. She doesn't have the judicial record of a Luttig or a Randolph. She's a scholar in maritime law, not exactly the juiciest legal topic. She has been strong on the issue of federalism, arguing that Congress could not regulate local robberies under the Commerce Clause. Clement would also demand a commercial nexus for the federal government to regulate under the Endangered Species Act. I don't know why, but I think that Clement is much more conservative than she has let on thus far. Maybe it's the federalism views, I don't know. My gut says that she would be a stealth confirmable nominee. She would provide a much more conservative vote than most other confirmable moderates. Of course, my guts have shit for brains so I may be totally wrong. If Clement were nominated after a more obviously conservative nominee got voted down, she would get through.

E. Jones
Chief Judge Edith Jones of the Fifth Circuit Court of Appeals does not look very threatening. However, she is a firebreather. She has opening criticized Roe v Wade, which pretty much kills her chances at being nominated or confirmed. Here's a chunk of her famous concurrence in McCorvey v Hill...
"The perverse result of the Court's having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter...That the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication."
Jones does not mince words. She was one of the finalists for the seat that went to Justice Souter. Things would be very different if Bush 41 went with Jones. She's not getting the nomination, no chance.

This Guy
Samuel Alito. Never heard of him.

Schumer and Bork missed a few names that I think have a decent chance of getting the nomination. Here is the Steve list of potentials...

Judge Karen Williams of the Fourth Circuit Court of Appeals has been my prognosticated pick every time there has been a vacancy under Bush 43. Believe me, I have about as much luck at the blackjack table. She's got 14 years of experience on the federal appellate bench, she's got the support of some important Senators (including Specter), and a strong conservative judicial record. She's also female and married to a Democrat. Williams would be attacked by the Democrats on a few fronts. Dickerson, which I mentioned in Wilkinson's section, will be a huge issue. "Oh no, she wanted to get rid of the Miranda warnings! What will crappy TV cop dramas do now!" I'm sure it will be phrased in a different manner, but you get the picture. She also has dissent in a sexual harassment case and an ADA case involving HIV that would be trouble. I think that she could get the nomination if the White House feels that they need a female nominee. I don't know if Bush would nominate her if he didn't do it when he had the chance. She would face considerable opposition if she did get the nomination. Williams would be worth fighting for though. And I bet Justice Thomas is lonely as the only Southerner on the Court.

Judge Diane Sykes of the Seventh Circuit Court of Appeals has been mentioned as a contender for a SCOTUS spot. She is a Bush 43 nominee to the Seventh Circuit. Rumor has it that Democratic Judiciary Committee member Senator Herb Kohl, one of her homestate senators, would support her nomination. Sykes has been on the Seventh Circuit for a relatively short time, but she has significant judicial experience including appellate/constitutional experience on the Wisconsin Supreme Court as well as trial court experience in the Milwaukee County Circuit Court. She's an active member of the Federalist Society (I see her at all of the local events), and doesn't shy away from criticizing bad judging when she sees it. Sykes is also incredibly personable and would probably do well on TV during the confirmation hearings. The Democrats would attack her on a few issues though. She'll likely be questioned heavily about a statement she made as a trial judge during a case involving anti-abortion protesters. Two protesters blocked access to the clinic by binding their legs with welded pipes to the front of a car. They were charged with disorderly conduct and found guilty. During the sentencing, Sykes said the following...
"I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct."
NARAL is going to have a fit about this. I think that the statement isn't totally disqualifying though. Sykes' chances for the nomination are probably pretty good. I think that she could probably be confirmed with a fight.

Judge Michael McConnell is probably one of the most deserving possible nominees to the Court. It's hard to argue with McConnell's accomplishments. After graduating from law school, he clerked for Judge Wright on the DC Circuit and Justice Brennan on the Court. He worked in the Solicitor General's office and spent almost two decades as a law professor. Professor McConnell's scholarship is widely respected, and his nomination to the Tenth Circuit Court of Appeals was supported by conservative and liberal academics alike. What's the problem? Well, when you call Roe v Wade illegitimate in the pages of the Wall Street Journal, you're going to turn a lot of heads. As an academic, McConnell has many pages of ammunition for the Senate Democrats to use against him. He's also a professed originalist, and many Senate Democrats would do anything to keep the Scalia-Thomas club from getting a third member on the Court. It's easier to attack the legitimacy of a legal theory if it's "just those two extremists" on the Court that abide by it. Another member to the originalist club would help the cause. I doubt McConnell would be nominated because the Democrats could attack him so many ways. Being the third white male nominated by Bush wouldn't help either. He would need a miracle to get confirmed.

If you've been following the nomination discussion elsewhere, Judge Connie Callahan of the Ninth Circuit Court of Appeals has been the "Bush will screw this up and nominate ________" choice. She's been a Ninth Circuit judge for three years and has a reputation as a moderate (or at least, more moderate than the average Bush nominee). Callahan has the support of many Democrats, including the incoming Judiciary Committee Chairman. If memory serves, there wasn't a single group that opposed her nomination to the Ninth Circuit. That's not exactly common. If Bush is concerned about his legacy (and with Iraq as it is now, he should be), he might go for the easy, historic nomination of a Hispanic woman. I think it's a very likely possibility. Callahan would probably be confirmed with a minimal fight from the Democrats. I haven't found anything for them to use as an attack. David Lat thinks that she's "a fairly conservative Republican" who would be "solid on criminal issues." He may be right, but I haven't seen the evidence of it yet. The Alliance for Justice called her a "moderate conservative." Yes, that Alliance for Justice. I'm a bit concerned about Judge Callahan.

Another potential nominee that has some folks worried is Supreme Court litigator Maureen Mahoney. She's got a strong background, even if it does lack judicial experience (like Ted Olson). Mahoney clerked for Judge Sprecher on the Seventh Circuit and then-Justice Rehnquist on the Court. She was a Deputy Solicitor General under Bush 41. She worked with some guy named Roberts. Her nomination to a district court was shelved by Senate Democrats (much like the original nomination to the DC Circuit of that Roberts guy). That forced her to eke out a living doing litigation work at Latham & Watkins in DC. She hasn't made her Republican political allegiances a secret either (and she puts her money where her mouth is). But as David Souter and Sandra Day O'Connor prove, "Republican" does not mean much as far as judicial philosophy goes. The big red flag is Grutter v Bollinger, the University of Michigan affirmative action case. Mahoney argued in favor of the AA policy. Just an advocate working for a client? Nope...
"I'm a Republican, and there's a common misconception that all Republicans oppose affirmative action," she says. "I care deeply about this case."
Yeah, there's trouble. It's possible that Mahoney is William Rehnquist in a skirt (now there's a mental image...) aside from this one issue. But we don't know that because she's got no judicial record to examine. I think that she's got a good chance at getting the nomination. She has no record to attack, but she's on record siding with the Democrats on one issue. Make no mistake. The Senate Democrats will grill her on everything else. They don't want Rehnquist in a skirt plus AA. If she doesn't give them anything damning, I think that she'd be confirmed.

There are a few other names that pop up, but I have much more serious doubts about them. I think that Judges Janice Rogers Brown, Priscilla Owen, and William Pryor have very little chance. The Senate Democrats have said that they will filibuster any nominee that was previously filibustered. These three are on the list, and the Democrats have the votes. You can probably add Judge Brett Kavanaugh and attorney Miguel Estrada to that list too. I may have to change my mind on Brown though. If the renomination of all the "controversial" appeals court judges is a sign of how Bush will handle all nominations, he might nominate Brown regardless of what the Democrats said. Judge Emilio Garza of the Fifth Circuit is probably dead in the water for being so openly critical of Roe. Alberto Gonzales is not leaving his current job as Attorney General. It was enough of a fight to get him confirmed for that post. He's got too much baggage that liberals and conservatives will both rally against. If anyone slipped my mind, I'll update the post later.

Well, that's it. I started working on this late Thursday night and have been plugging away at it bit by bit. My next, and hopefully final, part of this series will try to predict what Bush is going to do about judicial nominations over the next two years. I have no clue when I'm going to have that one written, hopefully soon.

The Senate Democrats have said that they will filibuster any nominee that was previously filibustered.

Steve, Perhaps you have addressed this elsewhere in the blog, but do you really get the sense that the Dems will actually filibuster a SCOTUS nominee? They can certainly get away with it on the lower court nominees but it seems like a SCOTUS nominee is too high profile. I know we have already been through the "give them a fair up or down vote" battle with mixed results (and by that I mean mixed results as far as a PR victory goes). But it seems like we'd have a much greater chance at success using that line on a SCOTUS nominee, that is I think the general public who normally doesn't care about these things will be likely to say, "Why won't they at least vote on the guy?" (This is of course assuming that we could pick off a couple of Dems get to 51 in the first place to make a floor vote worth having.)

As a matter of political survival, I think that most of the Senate Democrats would sign on to a filibuster. Of course, there are exceptions within the group. That being said, the Democratic base and the Democratic leadership (evidenced by Schumer's statements) knows just how important the next SCOTUS vacancy will be. If the Senate Democrats fail to block a nominee that is "too conservative" for most of the base, the base will flip out.

I can't claim to be an avid Daily Kos reader. That's mostly because I have better things to do with my time, like punch myself in the eye socket. However, I did read an entire post and comments on there once. The comments were in the hundreds and incredibly enlightening. The post was about the cloture vote for Alito. The Kos Kids were already sharpening the knives to go after the Democratic "traitors" that voted for cloture. Sure, there were dissenters who said "we just don't have the votes to stop him." But the overwhelming feeling at the time was "do anything to block him, slow him, ANYTHING!" Well, now they have a majority. While slim, it's still a majority. The Democratic base will want any conservative SCOTUS nominee blocked. And the political pressure on the Senators will be huge because the stakes are pretty high.

I do agree that the demand for an up or down vote carries more force with a SCOTUS nominee. In my next post about this issue, I'm going to talk heavily about the PR war. I think that public relations will be of huge importance for the next nominee's confirmation. It will probably make or break the confirmation. That's why I have some hope. I think that a hell of a lot has been learned since Bork and Thomas. With a certain kind of nominee, it will be the political fight of a lifetime.

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