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.
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 WilliamsJudge 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.
PradoJudge 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 KnowJudge 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.
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...
OlsonTed 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.