Redstate

"Three-quarters of Washington says the Stevens rumor is garbage. The other quarter is right. "

I want more.

I'm glad we'll finally get some good conservative judges to interpret the law and stop the homosexual agenda from taking our children into Sodom & Gomorrah.

Smarter trolls, please.

And I'm hoping we get some good conservative judges to read what the framers wrote in the constitution and stop the Calvinists from taking our children into Puritan New England.

In other words, the Dems want to make sure the conservative who is appointed is reasonable, but they intend to also clean the floor with him to show the base they aren't kids getting spanked by the Republicans, though that is what is happening.

I understand that you'll criticize the Democrats for their fight because you'll disagree with the merit of their argument, but aren't you generally happy with this scenario? I mean, surely you understand the politics of the base as regards the SCOTUS nod, and if it's all Dem bark and no bite, I think it's a pretty reasonable (non-despicable) strategy by Reid.

The poster was warned that his comment was inappropriate. Understanding that yours was a retaliation, the next time please let it slide and know that we are paying attention, and out of line comments will be dealt with.

The Chief needs to go ahead a step down, I'm sorry; "God Bless Him", but its time.  

Stevens leaving would be fun to watch, you think the left was upset about Sandra D. leaving they would lose it if Stevens or Ginsburg stepped down.  

I have suggestion for the bench who hasn't been talked about.  Plus its a non-judge person the current hot-talk trend.  Former head of the RNC and Bush-Cheney 04 Gov. Marc Raciot.  

I'm not sure that a professional partisan is the way to go.

"little deep throat" source been so far?  I haven't been able to track all the predictions.

t.h.

ps. I'm aware that these current "updates" are not solely from "the source"

The staff is focusing on both female and racial minorities for the O'Connor pick.

I miss the days when politicians actually made arguments to persuade voters, rather than symbolic appointments.

I guess that I have to become resigned to this, but I expected better from President Bush

why is the search expanding to the state level and non-judges now?  I figured that all of the candidates would have been well looked at by now.  Is all of this "contemplative" stuff for real or just PR spin?  I always assumed the former as this has been the moment that the WH has been waiting for for more than 4 years.

Is running at 90% accurate -- and I'm pretty sure is right about the other 10%, which just is slow to transpire.

I'm inclined to give GWB something of a break since no less a conservative authority than President Reagan committed during his campaign to install a woman to the bench.  So long as GWB sticks to his primary pledge of appointing someone in the mold of Scalia or Thomas, who cares if he or she also happens to be black, hispanic, or polka-dotted?

"Needless to say, most of the speculation has centered on the question of whether I would consider a woman to fill this first vacancy. As the press has accurately pointed out, during my campaign for the Presidency I made a commitment that one of my first appointments to the Supreme Court vacancy would be the most qualified woman that I could possibly find."

http://www.reagan.utexas.edu/search/speeches/speech_srch.html

The White House had conducted a cursory review of non-federal bench judges, but was focusing on federal level and, in particular, circuit court level judges to mitigate concerns of experience.

However, the White House very much wants to catch the Dems off guard and not give them a chance to destroy a nominee in the process.

I wrote a diary about this yesterday.  To summarize, I think that the female and Hispanic candidates mentioned so far have weaker qualifications and that, thus, they would be less effective in persuading other members of the Court and less reliable.

Reagan's appointment of O'Connor is a little different.  She was the first woman and that was important.  I don't think that means though that her seat should automatically become a woman's seat.

I can understand the concern about catching the dems off-guard, but that cuts both ways...worst thing would be to go after someone who has not been as thoroughly vetted as someone like Luttig and get caught off-guard yourself.  

If the WH picks someone that the dems can destroy, the WH will have no one but themselves to blame...they know the stakes and they know better than anyone how the game is played...if they are stupid enough to pick someone that could be blocked when they have a 55 seat majority in the senate, I have no sympathy for them (unless they do it for political reasons, but that's a whole 'nother topic).

thanks.

I'll take 90% over reading tea leaves any day.

t.h.

"I can understand the concern about catching the dems off-guard, but that cuts both ways...worst thing would be to go after someone who has not been as thoroughly vetted as someone like Luttig and get caught off-guard yourself."

Absolutely.  Can you say Souter?  Thanks, John Sununu.

If I were the White House, I'd stick with one of the four above.

Yes, I know the Dems are "prepared" for whoever, but it doesn't matter WHO the GOP picks, you gotta think that they are going to fall into one of two categories:

1. Acceptable to the Dems but not the base
   
2. Acceptable to the base, but not the Dems.

Cornyn seemingly would be acceptable to BOTH, but then you're replacing SDO's slot with a man.  If you are going to do that, might was well get Luttig or Roberts on board.

They're not going to pick someone out of the Grapefruit Leagues for this. The whole Laura Bush thing may be a tipoff to the fact that Bush may be looking at a woman to fill O'Connor's seat.

That's my suspicion, and I'm sticking with it. Luttig for CJ.

"Senator Reid has, in private, conceded that the Democrats are going to lose this fight, ..."

Where did THIS concession come from?

Souter looked good under similar logic...

If Bush is limiting his SCOTUS nominations to "one white guy", then I hope they know enough about Cornyn if that's their choice over Luttig, Roberts, et al.  Also, I hope they don't spend their "white guy" nominee on an lifelong academic like McConnell.

to me why you are willing to so readily accept the "one white guy" formulation.  If the Democrats are going to fight no matter what, why not swing for the fences by trying to appoint a justice who has the chance to be influential?

Also, McConnell is not just an academic.  He's all ready sat on the 10th Circuit.

First choice, followups in order of preference...

Replace O'Connor with...  Garza/Estrada/Jones/Owen

Replace Rehnquist with...  Luttig/Alito/Cornyn/Roberts

Replace 3rd position with... JRBrown/Jones/Owen

Replace 4th position with... Estrada/Cornyn/other originalists not already attempted.

Souter was a guy NOBODY knew well.

President Bush and his people might want to pick somebody that THEY know well, but is a cipher to the Democrats and their allies.

If Bush picks a guy nobody's thinking about and comes out with a full-steam push for him, perhaps they can bowl over Specter and get the process moving quickly.  The Democrats will take a little time to dig up attacks on the nominee, giving Bush a head start in describing the nominee to the public.

I lack the knowledge and discipline to come up with a list, but perhaps it would behoove a conservative and/or Red State poster with both to develop a roster for the best possible court, that is, the nine justices who through their jurisprudence, leadership and perhaps personal examples would constitute the perfect Supreme Court.

A purely theoretical exercise, I suppose, but it still might illuminate. Don't forget to provide intellectual ferment.

And diversity. Have to have diversity.

Three may retire, and you want more?

If the President really does get to pick three, then we could very well see Roe and company overturned next summer.

A 5-4 majority would satisfy me until the next Presidential election.

I'm starting to expect this:

  Replace O'Connor with a woman

  Replace Rehnquist with Luttig/Roberts/Cornyn

  Replace third with Al Gonzales

love affair with Priscilla Owen for SCT justice.  Putting all else aside, I just don't think she is in that league of intellect.  She's fine for the 5th, but the Supremes are a whole different ballgame.

Scalia

Thomas

Luttig

Alito

Garza

JRBrown

Jones

Estrada

Roberts

- but the justices do have to face an ultimate term limit eventually.

Garza/Estrada for O'Connor

so the pressure for a woman in the 3rd pick keeps Gonzales off the table.  

Gonzales is not suitable as one of the first 3 picks.

Assuming 3 excellent picks, I could see Gonzales as the 4th pick at the end of Bush's term such that recusal issues are minimized.  

Still would prefer a more reliably conservative pick than Gonzales.

Scalia

Thomas

Posner

Easterbrook

McConnell

Luttig

Roberts

Wilkinson

Alito

I'd rank Thomas over Scalia, but that list looks good to me, from what I've read.

I just mind if they do so to the extent that they ignore good white male jurists.

I would much rather have a white guy who is an originalist than a woman, african american, hipanic or ? who is a schitzophrenic moderate judge who doesn't realize the constitution is supposed to anchor their decisions.

I would also like to see them avoid appointing just a conservative.  Sure I might agree with the conservatives decisions, but I probably won't care for how they reached them, if they aren't grounded in the text of the constitution.  There is very little difference between a living breathing conservative or liberal when it comes to the damage to the constitution.

today.  His recent decision in Kelo wasn't appreciated much up here in his home state.  

Have to say that if there is any mistake Bush 43 needs to avoid it is the Souter mistake.

Judd Gregg's father, other than that nobody really had much of a clue what he was like.

I agree vetting is important, but I would much rather Bush risk a borking and appoint a known entity than go for the stealth one to have an easy appointment proccess and get bitten again.

I do want more in that sense as well.

But I was referring to more information in my comment.

and I am not sure he would be suitable anymore by a 4th pick to the dems.  

I am also not so sure I like Owen as a pick, although if I had to choose between her and Gonzalez I would take her.

Well-stated.  It's not clear to me that Owen, Jones, etc. even have a judicial philosophy.  They're dangerous picks.

surely you understand the politics of the base as regards the SCOTUS nod, and if it's all Dem bark and no bite, I think it's a pretty reasonable (non-despicable) strategy by Reid.  

All the while the Dems are critizing Bush and telling him not to name an "Extremist"(their words not mine)and that Bush should nominee at Moderate and if he does not Bush will be the one that starts the fight.  In effect, The Dems are saying they are allow to satisfy their base but Bush is not.  

I say to you, surely you understand the politics of the base as regards the SCOTUS and campaign promises.  What is good for the Goose is also good for the Gander.  

I looked up his biography today. (One version here. A fine man and thinker, but 65 years of age.

I seem to recall that he's not.

was a lefty troll posing as an "evil conservative" (especially when I read his previous comment). It that's the case, then the "retaliatory" trolling was even more unacceptable. (I wonder how much lefty vs. lefty trolling RedState can handle before everyone reasonable just quits reading.)

Um, right. That's exactly why I assumed that he understood the politics of the base re SCOTUS. Republicans are having to deal with it too. Bush will appoint a conservative because of his base's demands. Reid will fight the nominee to some degree no matter what because of his base's demands.

I never said the Republicans couldn't satisfy their base -- in fact the acknowledgement that Bush HAD to do so was implicit in my comments -- so please don't play gotcha or frame me as some sort of hypocrite with invented positions or statements. I understand this site isn't "for me" and my protestations justifiably carry no weight, but that sort of thing is a little annoying nevertheless.

Posner has one of the sharpest intellects in all of the country.  He's so smart that I'll even forgive him his agnosticism.  He is too old, but this was a dream lineup for me.

with this scenario"

If the result is we get a good nominee confirmed, I suppose we'll take what I can get.

But the "politics of personal destruction" isn't a good way to get good people to serve the people of the United States. It makes it that much hard to find a qualified nominee next time. Not every enjoys having their private life scrutinized and being slandered on the floor of the Senate.

Being mean just for the sake of the Democratic base, isn't fair to any of the nominees. I know life isn't fair, but we should expect more from our elected representatives. I'd expect the same from the Republicans if it's a Democrat President making nominations. If you don't like a candidate, state your case and just vote against him or her. No need to yell into the camera or call names. They're supposed to be adults.

I have to say that I have little respect for Thomas though I like the way that he votes.  He's not the type of justice who tries to persuade his colleagues.  He doesn't speak during oral arguments and he doesn't write many opinions.  All in all I consider him a minor disappointment (not in Souter- Kennedy territory though).  This is why I'm concerned about an affirmative action appointment.

"If you don't like a candidate, state your case and just vote against him or her."

I agree. I think that the filibuster should be on the table, but absolutely this needs to be on merits and not a smear job for smearing's sake. Every nominee is going to have something that can be built up into a filibusterable offense -- anything can be puffed up into a Manichean red meat factory -- but that would be juvenile.

I'm hoping Reid has a (limited) list of absolutely untenenable candidates who will be filibustered and he's shared that with the president. That way the president knows, and the Democrats aren't tempted to decide to filibuster first and ask who the nominee is later.

But overall I think most of the nominees deserve a fight and an up or down vote.

He's also been an active litigant on religious freedom issues.  Plus, he's perhaps the leading scholarly critic of Roe v. Wade, which has to count for something.

If the Democrats don't know anything about Bush's nominee, I can see them stalling for more time to dredge up allegations on the person.

They'd say something like, "Yes, President Bush, we're trying to confirm him as quickly as possible, but he hasn't told us what he thinks of Roe v. Wade yet and we're still trying to get access to all of his medical records. Oh, and we really need to address the 'serious allegations' that he harassed a couple girls back in elementary school."

Good points. I've usually only evaluated the judges by paying attention to what they do say and write, and using that to evaluate how they think.  I like the way Thomas thinks.

Influencing fellow justices isn't something I've considered yet, but if President Bush only gets two picks, that could be very important.

The only nominee being mentioned who I can see deserving a filibuster is Gonzales.  That would be because it is arguable that he is being nominated for loyalty and cronyism reasons rather than because he is the best judge available.  But since he has TX Supreme Court experience, even that case is weak.

The others are all long-serving, respected judges or Senators who have judicial experience.  If the President nominates Paris Hilton, then fine, filibuster.  But that is the type of "extreme circumstance" that it exists for, not because the minority doesn't like a certain nominee's views.

I'll leave that determination to the people who know -- on both sides -- until the nominee is announced. Then I'll do some research. Until then heck if I know who does or doesn't "deserve" to be filibustered, and I'm not going to research three dozen potential nominees ahead of the announcement, cause Lord knows Bush'd pick someone I didn't think of.

"He's not the type of justice who tries to persuade his colleagues...he doesn't write many opinions."

Do you know what you're talking about?

Thomas wrote 34 opinions last term, more than any other justice and nine more than Scalia.  Thomas wrote the most concurrences (12) and the most dissents (14; Scalia, 7).

Thomas isn't as vocal on the bench, but his prose is more influential.  He helps create a body of law in concurrences and dissents that don't get the attraction of the majority opinions but that influence the historical look at the law for future generations.

Also, do you really think that Scalia, who does "try" to persuade people off the bench, is more successful in persuading his colleagues than Thomas?  Or, should I say, is Scalia successful at all in persuading, any more than Thomas?

Totally agree with your defense of Justice Thomas.  The libs say he's a lapdog of Scalia, but nothing could be further from the truth.

He is the only true originalist and we're lucky to have him on the Bench.

Plus, Scalia wasn't exactly defending federalism in the Wine Shipment case, or in the Medical Marijuana case where he ended up letting Wickard thrive and rule the several States....

Well, I want the more that you did not intend...heh.

Erick,

Is JRB anywhere on the radar for O'Conner's spot?

I have to admit that I wasn't up on the data from the last term.  

Still, I can speak from a certain perspective.  I teach Con Law and I can say that I have witnessed many students who I could see were persuaded by Scalia's arguments -- that's a good thing.  The same can't be said concerning Thomas.

You make a good point about Scalia.  On the Court itself, written opinions usually come too late to persuade other members. Other CJ in the past have used the discussion time on the Court as a means to forge agreement.  (Rehnquist hasn't been too great in this regard.)

I think that we could probably come to agreement on the perfect nominee.  I would like an intellect with an affable disposition -- someone like McConnell.  (Scalia's biting sarcasm isn't a wise strategy.)

I think it's doubtful for the same reason that promoting Thomas or Scalia to chief is doubtful - it means that another lengthy battle must be fought over a qualified nominee.  JRB just took two years to get the bench, so let's open another vacancy again?  I don't think it's a prudent choice.

Republicans in Congress did a poor job in her confirmation.  They focused only on her life story in order to distance themselves from her controversial ideology.  

Substantive due process in all forms must be avoided and, personally, I'm not comfortable with her defense of Lochner.

I don't even think it is just the base here (for Supreme Court judges)...it is the totality of the majority that elected Bush.  Most of these believe that the constitution has been streched well beyond its original meaning and want to go back to the original interpretation.  I can understand why this would be irritating to those on the left.

A judge's personal opinions don't matter if the judge will follow the Constitution.

The question I would ask is:  Do we have any way of knowing he won't be a right-wing activist on the bench?

I disagree that most Americans want anything of the sort. I assume you feel the justification for Roe v. Wade is not admitted under an originalist view of the SCOTUS' purview? If so, here's a poll regarding American's "desire" vis-a-vis the "stretching" of the Constitution by the SCOTUS:

If one of the U.S. Supreme Court justices retired, would you want the new Supreme Court justice to be someone who would vote to overturn Roe v. Wade -- the decision that legalized abortion -- or vote to uphold it?

6/24-26/05

Overturn: 29

Uphold: 65

Unsure: 6

Source. This poll was an NBC news poll, but there's a Pew poll with similar results on that page, and all of this in spite of the fact that half of Americans don't agree with abortion. So they appear to be going out of their way to say the SCOTUS should uphold Roe.

The majority of Americans absolutely don't want to go "back to the original intepretation" because they don't view the SCOTUS in the same ideological framework -- originally, evolutionist, whatever -- as do committed partisan flacks on either side. They don't care, and generally only care when it effects them or could effect them, and even then there's generally no real stable ideology behind their viewpoint. It's usually what they think of as fair.

Your assertion on the wishes of the American people, even Bush voters, vis-a-vis the new SCOTUS justice is thus at the very least partly incorrect and a Known Fact.

If you feel the Roe v. Wade decision was constitutional, then nevermind.

...but I'm not a lefty at all.  I'm a Republican with some libertarian leanings.  I should not have been so quick to rise to the bait of that troll and will take a few deep breaths before popping off again.

while he may not be vocal, he is definitely a thinker, although he marches a bit to his own drum, I often find myself nodding to that beat.

I will take a reticent Thomas anyday over another O'Conner or Kennedy.

Polls change over time...and they have been progressing upward against the Roe v. Wade ruling since it was made.  That does now affect the idea that the Constitution should be adhered to rather than managed as a changing/living standard.  

It's a darn shame that the picking of Supreme Court justices has become so political.  That said, it should considered that the practically of adhering to the wording of the constitution would be the norm rather than political expediency.  I have a difficult time understanding why the leftists so discount the originalists of the constitution and they will advance a justice that (via previous decisions) obviously goes against the original constitutional writings to promote their agenda.  Know that what you cheer for now you will protest later as their definition of the constitution changes against your current beliefs...

The original interpretation has done us very well for 200 years...why the sudden need for change?

"somebody that THEY know well, but is a cipher to the Democrats"

Yeah, 'cause this White House is so leak-proof that their internal appraisals will NEVER make it into the hands of Harry Reid, Charlie Rangle, and the MSM.

Uh huh.

Off of me and off of the country.

Imagine a world without Stevens and O'Conner on the high court...

The constitution would be interpreted as though the words actually meant something.

People, even wealthy people, would have the right to freedom of speech.

Religious people would have the right to express their beliefs, even if they happen to be employed by the government.

Americans would be less burdened by racial discrimination in public colleges and government agencies.

Unborn children would have a new lease on life.

This seems too good to be true.

Sounds really grand to me....must be in another world!

Polls on Roe have absolutely not being doing that. On that site you can see that levels of support for abortion has remained fairly static since 1973, with no overall trending over thirty years. 24% say abortion should always be legal, 55% sometimes legal, 18% always illegal, and 3% unsure. And that's over 30 years.

And specifically to do with Roe, here's a Fox News poll found on that site:  

date   overturn  uphold   not sure

----------------------------------------

1/02   26           59        15  

1/01   29           62        9  

6/99   29           63        8  

1/98   30           64        6

Obviously a narrow sample, perhaps you can find a polling sample specific to Roe that goes back farther? Anyway, at least since 1998 the people who are against Roe, who want to overturn it, are becoming even more of a minority. People who know they want it upheld and dwindling too. People who are "not sure" are the ones gaining in the post-Clinton era.

That said: the more justices stick to the constitution, the better. Obviously rulings that reach outside of the constitution can be dangerous and eventually manage to vex both parties.

Any list that doesn't include Posner, Easterbrook and Kozinksi has something other than judicial brilliance as its goal -- results-oriented jurisprudence, perhaps?

Okay, you've proved my point...downward trend over the last 7 years.  The rest depends upon the poll question...

My major point is not with abortion but with the trend toward actual intrepretation of the words of the constitution.  You are over-reading into my comments one aspect of a poor constitutional interpretation.

Trade Kozinski for Alito.

Totally agree... Thomas is much more influential than the left will recognize.

You said: "Three-quarters of Washington says the Stevens rumor is garbage. The other quarter is right."  It can't be his own health.  A contact at the SCT says he has been very active, even playing tennis (and winning).  Do you have any idea why he might step down?  If not that, what makes your source believe a move is imminent?  (Other than the fact that he is 85.)

The judge who was removed from the list, just might work his way back on.

Who??  McConnell?

Wow... 85 and winning tennis matches!  Who the heck is he playing?

I'm not on the left, but I'd like to see some evidence that Thomas is "influential."

If he had a clear judicial record that indicated fealty to the Constitution as written, I wouldn't care.  But a politician who lacks the courage of his convictions to be pro-life is unlikely to be a conservative on the bench.

All the White House needs is a head start.

Some of us haven't studied every possible nominee. We pick the best from those we've heard of.

Okay, that was an opinion...okay?  I think most of the right thinking Americans will agree that it is better to read the Constitution from a more literal standpoint than from a "breathing" standpoint... so...?

#1 Questions are often phrased very poorly for these issues.

#2 This is especially true of abortion, because the pro choice people often speak of an overturn of Roe as abortin being made illegal.  This isn't the case-an overturn of Roe would simply put the matter into the hands of the states for them to decide.

I would trust more a poll that asks if they think Roe should be a matter for states to decide or a matter for the Federal courts.

Also, back to the poor phrasing of questions, the majority of people are for restrictions on abortions, and many of these restrictions have been overturned by the courts-just quote a poll on partial birth abortion, and you will see high numbers opposed to this, but the courts have been overturning partial birth abortion laws all over the place.

http://www.floridasupremecourt.org/justices/cantero.shtml

Cuban American Catholic, 45, Appointed to the Fl S. Ct. by Jeb,cum laude grad Harvard Law.  

Not sure if anyone in this thread has posted on him, but I started hearing about him from Florida folks today.  

Imagine a world without Stevens and O'Conner on the high court...

For all the knocks SDO has taken recently, I have actually come to conclude that I'd almost rather have Kennedy gone <u>more</u&gt.

At least SDO was on the right side of Kelo. And it seems to me that, lately, she's been behind fewer lame-brained decisions that Kennedy.

YMMV.

for making my point much more succinctly...  At any rate, it does not affect my original premise on the original meaning of the constitution and its intentional expansion via the lefts interpretation.

Bush is saying he's actively considering people "who have never been judges". Miguel Estrada is seriously in the running.

To annoy you.  I was merely pointing out that the Dems are saying if Bush nominees a Conser. that Bush will be the one starting the fight.  WHich is silly and we all know it.  We all know each side will play to their bases.

I disagree that this site is not for you.  I appreciate a debate and debates are boring if everyone agrees on most issues.  With people of all stripes on board it keeps the boredom away.  

I'd like to see the results of a question worded something like:

If Roe V Wade is ever overturned by a Supreme Court the decision would automatically go back to each state and it's voters.  Would you prefer the Supreme Court not overturn Roe V Wade or overturn it allowing each state's voters to decide this issue?

Bush is a conservative... Not a liberal... Bush nominates a conservate (mercy, what a surprise), Democrats take offense... fur will fly...politics goes on as usual...

This is discouraging...  I sure hope that if this comes up in the US, it will be fought with a vengenance.  Talk about freedem of speech laws, this would top them all...

Overturning Roe on almost any constitional reason other than finding a right to life for the fetus would automatically result in the issue going back to the states for them to decide.

Where it should have been left in the first place!

if Reid has privately conceded that they'll lose but still plan to mop the floor with our nominee for show- why would the president play ball?

In other words what's the incentive for tempering your choice for someone appearing more moderate when they're going to get painted as an extremist anyway?

I say go whole hog bc in the end 1/2 of the country is going to think he picked a right wing nut job anyway.

Bush should go ahead and choose the best candidates for the positions, and back them to the fullest.

There is going to be some level of Borking no matter what happens, the difference is this time the GOP is holding all the cards, and unless a nominee truly is extreme, the Dems aren't going to get away with holding up Supreme Court nominees.

The electorate may not care much about a vacant court seat in podunk Montana, but they will notice a roadblock at the supreme court level, for one thing the media is going to be putting up the big tents for this circus and they won't miss a beat.

You are right here...go for the gold.  If you leave it up the media, you'll lose every time.  It does not matter who is selected, they will be an extreme right winger!

I really think this is a whole new ballgame at this point.  It sounds like they've thrown out the shortlist.  I wouldn't be surprised if somebody totally off-the-wall ends up as one of the nominees.

I still think Bush goes for either Luttig, Roberts, or Cornyn for Chief (the white guy pick), AGAG for Stevens, and a woman or other minority pick for O'Connor.  I think the O'Connor pick is the one that will be the most interesting.  The Renny replacement is a fair trade.  AGAG may me more conservative than Stevens, but that's not hard.  For O'Connor, I think Bush is going to throw a real curveball.  Maybe Michael McConnell or someone quirky like that.  Maybe Janice Rogers Brown.  Maybe someone sitting on a state court in Alaska.  Who knows.  I think the message we're getting is sort of what I said the other night: Bush will want to make everyone so confused with a triple-play like this that by the time anyone figures out just exactly where each of the prospective Justices stand and how the balance of the Court would be altered, they'll all already be confirmed.

Ted Olson (CJ)

Scalia

Thomas

Luttig

Garza (or Estrada)

Clement (or Jones)

Roberts

Rogers Brown

Kozinski

Pryor

In addition to being a well-qualified group, the key factors included youth (except Olson), ideological diversity (from conservative to libertarian), and gender/racial diversity (largely for political reasons).

Chief Justice.

I think he should nominate Thomas or Scalia for that one.

OK, I goofed.  Bill Pryor is my bonus Powerball pick.  Ted Olson would retire in 10-15 years, and then Pryor will be ready for his job.

are Political Junkies!  Most people are LEAD to believe that if the SC overturns RvW it would be illegal.  My point is put that info in the question and you'd get a much different outcome.  

One has to be more of a thinker to appreciate the nuance of Thomas' opinions. Thomas is a true originalist and thus tries to always keep in mind the historical context of the framers and their original intent. For a very good reason. What they did was good. It was flexible. It allowed for balances of power, checks. They came up with this crazy chic kind of deal where if noone likes the way things are going, you can get a 2/3 majority of congress in there and make an amendment. Like that School House Rock song, I'm just a bill...

So Thomas thinks it. He stretches it, he works it. What would this have meant to the fundamental principles of liberty and that pesky preamble. Thomas looks at these issues through a prism of his own experience compared to the ideal. And he goes for the ideal, wonderful, pure original intent. It's beautiful in its simplicity, but much like the mainstream left likes to denigrate GWB's thinking ability, they love to just roll their eyes, and make asinine comments. I.E. Thomas is the token. Just doin what the white folks on the bench want him to do.

I know I'm not the only person waiting for the decision to come down so that I can get to that Thomas or Scalia concurrence or decision. It is always a thing of elegance and beauty to behold.

thinks of Thomas as nothing more than an idiotic token who shouldn't be on the court.  

I sometimes think liberals hate him so much because he doesn't fit inside their box of what an intelligient African American man should be.

Thomas certainly won't be shoved inside any boxes, but the ridicule he endures, because he refused to be boxed in is undeserved.

Perhaps it's a whole new game because the White House is now considering 3 picks over 12 months instead of 2 picks over 6 months. Erick alluded to this in this post....

Thanks for saying what I was thinking...but could not put in words...NormaJ and Just Me...  Well, maybe I'mn just over my head here...heh.  Thanks...

Judicial decision-making by polls!

And quick to anger to boot. Thanks for the clarification.

Since I recognize a lot of the usernames these days,  when I see an unfamiliar one spouting off some strong rhetoric in opposition to one of my positions I tend to jump to the conclusion that it's some obnoxious liberal begging to be banned. Unfortunately, that often seems to be the case. I'd much prefer it to be a Republican/libertarian.

Sorry for the outburst of mistaken identity.

sodomy, baby killing, and burning the flag are not protected rights, but freedom of speech (campaign finance), freedom of religion (commandments, prayer at football games, etc), and the right to property are.

imagine that.

I was so impressed by his arguments in the 2000 election case. Don't know much about his legal background though, or his view of the constitution. But I loved the way he was unintimidated by the tough questions and I thought he came off as much more scholarly then his opponent in that case David ???.

Is the Stevens rumor the same one Prof. Bainbridge reported on his blog, that Stevens is going to submit his resignation but only if Rehnquist resigns first?

In Lawrence v. Texas is a thing of beauty.

At some point, we will not be able to get qualified, normal people to serve in appointed/confirmed positions.  Most people don't want their names turned into a verb.  ala Bork.  

I read, in the WSJ I believe, that NARAL had hired one of Reid's former staffers and they have filed Freedom of Information Act requests on the financial disclosures for all of the potential nominees they are concerned about.  Apparently, they are trying to find private and embarrassing financial information so as to hit hard where it hurts.  

After watching the Bolton nomination, I can't imagine why anyone would consent to serve if they had to go through that.  Private sector jobs aren't that hard to come by.

The media constantly portray Thomas as a lightweight.  I wonder if students are harder to convince if you tell them they are reading second class arguments?  

(okay, I don't wonder, I think it is true that they are easily convinced by Scalia because the have been convinced that Scalia is smarter.)

You know, by now, if Thomas is only reading the Subject Lines, or lastest comments box, he is getting the big head.

Maybe to knock him down a notch, someone should write a "Thomas Stinks" comment.

most of my students can't even name a Supreme Court Justice -- let alone know anything about their reputation for smarts.

Most of the comments here concern why people like Thomas (I like him too).  But, being influential is different -- that means having an effect on the other justices on the Court, lower federal court judges, or the legal community at large.  I've seen no evidence that he is influential in this regard at all.

to get a nominee from the outside.  From a pragmatic point of view, a Thomas or Scalia nomination would mean one more confirmation battle that would bog down legislative priorities.  It would also allow the dems another 6-8 weeks to hammer the "extreme" nature of Scalia or Thomas.  Given what Bush would like to accomplish, I just don't think it makes sense to put Scalia or Thomas in as CJ.  

While the CJ has some procedural powers that allow him to guide the substantive development of the law, IMHO they are not significant enough to justify Bush going through a Scalia/Thomas CJ nomination fight.

the WH is likely considering is the legislative agenda that is going to get hijacked while the Supreme Court drama plays out.  The more extreme the nominee, the longer the drama will play out and the longer things like social security, tax reform, etc. will fall by the wayside.  Bush's best chance on some of those issues is going to be in the next 9 months...once we get into the full swing of the '06 election cycle, the more controversial proposals will likely die a quiet death and won't fare much better after '06.

I think this is a good point.  Nobody wants to put themselves through the meat grinder the dems have planned.  

This is one reason I think Estrada just gave up, he got tired of the politics games.

I can honestly say I don't know that I would want to sign up for something like this, and I also think some things should be off limits-there is no reason an abortion group-or some other interest group should have access to detailed information about anyone.  

I wonder what the president of NARAL would think, if all of her/his financieal informatoin was published in the NYTimes.

if the court was filled with justices just like him, then Thomas would have influence by default.

I am also not sure that a value should be placed on a justice by whether or not he has persuaded others to his way of thinking-mainly because the other side may simply be choosing not to be persuaded in the dynamic.

Thomas absolutely marches to his own beat, and it may simply be that his beat isn't the loudest.

as far as I am concerned.

There's a very good old book about interpersonal relationships on the Court -- The Elements of Judicial Strategy by Walter Murphy.  I think that it's something that has to be taken into account if an effective justice is sought.

No other thread open for this subject....but why are we sitting on our hands on other comfirmations?....Haven't Myers and Boyle cleared the Judiciary Committee?....here we are in "pause mode" awaiting W to make his choice(s)....seems to me like an excellent opportunity to be taking care of business.....does this mean we will not see any progress on lower court nominations until 2006.....assuming we are preoccupied with SC nominations until then?

Why couldn't Arlen hold a hearing for Nielson who is supposedly confirmable?

First, Scalia would be the best choice.

Second, if Scalia is not elevated, he will likely retire in 2007 - that alone is enough to elevate him.

Boyle has gotten out of committee and is waiting on a floor vote.  The point is correct though.  Why can't Frist move the nominees thorough now, or at least try to do it?

Link

Really the best thing about this is that it means that Bush has absolutely no reason at all to nominate someone at all moderate.  No matter who Bush nominates is going to be brutally attacked.  As long as thats going to happen no matter what Bush might as well nominate the most conservative judge in the country.

David Brooks' column in this morning's New York Times is the best thing that I've seen written on the nominees so far.

to brag and show just how right I am, (lol), don't laugh, it was bound to happen sooner or later (being correct that is).

Remembering that I very clearly stated Rehnquist would be going into the hospital last Friday because he needed some additional test for the cancer, I couldn't help myself from pointing that out today.

All I can say is, most everybody that works in a hospital has friends.

Now, here's prediction #2. After this weeks so called, follow-up" proceedure, which should be done by Monday or Tuesday of next week, he will be diagnosed with further complications of thyroid cancer and it will then (I'm 98.175% sure), that he will announce the retirement. He should leave the hospital for a day or so maybe 3-4 and then will return for even further testing as the prognosis does not seem too well. Again though, this source is vunerable, and anymore detail might end up on the wrong eyes.

So I'll keep it to this generality and see if I'll be posting another "I would like to take this opportunity" entry next week.

See how many want a judge who would overturn it.

And I echo the fact that too many people don't understand the result of overturning Roe.  So it would cause a backlash in the short run, but the long run would depend on what the states did.  And NY/CA/etc would keep abortion legal for almost all cases, so it wouldn't affect much.

that Scalia would be the best choice.  He has a history of being caustic, which is not a good trait for the Chief to have.  If you want strong conservative rulings out of the court, you really want someone who can build consensus conservative coalitions.  My impression of Scalia's opinions is that he is generally happy to go his own way.  Not that there's anything wrong with that, but someone who could bring the conservatives on the court together would ultimately be better for the conservative movement than a CJ that would end up producing fractured majorities and, thus, weaker opinions.

Where are you getting that Scalia would retire in 2007?  I always figured he'd die on the bench.

flamboyant personality then.

I guess I don't care too much about how much everyone else likes him, as much as what he decides in his opinions on cases.

Sounds almost like you think Thomas extroverted enough to be persuasive-you may be right, but frankly since I don't work at the SCOTUS all I have are the opinions anyway.

In speeches, he has given indications that he is "bored." If he can be CJ, he will stick around - if not he will move on.

is timidity.  She was always afraid to trust the Founding Father's judgment on issues like race and the protection of individuals' rights.

To compensate for a lack of a textual right to privacy, she allowed the liberals on the court to maintain the judicially crafted one.

She caved in to the pressure that was exerted by those who benefit from racial quotas.  I'll concede that this group is more organized than the majority of Americans who are hurt by racial quotas, but shouldn't have any bearing on a Supreme Court justice's opinion.

She will be replaced by a justice who has the courage to let the Constitution's text (not its vaguely defined "spirit") speak.

Kennedy's problem is different.  Kennedy is overly protective of the power of the judicial branch.  He has stubbornly defied Congress' will to create mandatory minimum sentences for federal offenses because he believes that the law intrudes into judicial territory.

I'm not sure what his justification for supporting Kelo was but it may have something to do with his consistent support for corporate rights over individuals' rights.

but there was a great article(months ago) on Thomas explaining how he was almost the exact opposite of what his public reputation is.  It talked about how he loads up the family winnebago and travels around the country when the Court goes into recess.  About how he's the most accessible Justice anyone can remember.  How even those that despise his philosophy are extremely loyal to him.  Even that he eats most of his meals in the Senate cafeteria alongside the SOBs that tried to run him out of D.C. on a rail.  So I wouldn't be at all surprised if held a lot of sway behind the scenes.  Nor if he's picked for the CJ job.

although Bush will have to be prepared for a screeching cat fight.

The only thing is I wonder if Thomas would be willing to be part of that fray, after is treatment at the hands of the senate, and frankly I really do not want Anita Hill round II (and I am not convinced the electorate wants that either).

I don't understand whether or not you think that Kelo is unconstitutional or not, so I can't tell whether you think public disdain of it is in support of or contradictory to an originalist SCOTUS.

And polls that just say, "Do you want Roe v. Wade" overturned come out at around the same numbers quoted above. What I'm hearing is that people want education built into the polls, they want push polls, and frankly that isn't the job of polls, that's your job and the job of your politicians. Complaining about that poll question, when it's simply asking whether Americans want Roe overturned, is misguided, IMO.

That said, I recognize that there's a certain misunderstanding of what an overturning of Roe would do, but at the same time maybe people are a lot smarter than you give them credit for and realize that the practical result of overturning Roe is that in many states. Abortion would be outlawed in all cases, and they don't want that.

Check out those punctuation errors! Misplaced quote marks, extraneous periods, etc. Oops.

but here it is.

I think we can all agree that it is complicated and that the fallout is rather unpredictable.  I'm on the record elsewhere as saying Roe falling would hurt Republicans significantly, but it is still the right thing legally to do (and morally as well).

I can't think of a single state where there is majority support to outlaw abortion in every case.  This is why the actual effects will not be as restrictive as the imagined effects of overturning Roe.  And much of the "keep Roe" sentiment is coming from CA/NY/IL and other pro-choice states that wouldn't see much change.  Rs already don't have much of a chance on a statewide level in those places without being pro-choice so that effect would be limited.

The pro-life v. pro-choice dichotomy would falter as people would have to make compromises at a state level on the issue.  By trimester, by situation, parental notification, etc, etc would be debated.  I think the "rape, incest, and life of the mother" trifecta would probably prevail in most "red" states and the everything except partial-birth would win out in most "blue" states.  After a few years working that out, polls will show that 50% don't want the SC to reinstate Roe while only 25% do.

Finally, I wonder what polls would have said about overturning Plessy at the time.  Following the Constitution is not fundamentally about doing what is popular, it is about doing what is right.

there is a difference between push polling, and providing correct information in a question.

The problem is that the pro choice activists and the media have given the appearance that an overturn of Roe would mean an immediate outlawing of the procedure and a return to back alley abortions and coathangers.

A good poll would be along the lines of:

Do you think Roe should be overturned, and allow the individual states to determine the legality of abortion? (a sociologist I am sure would burn this question, but they would burn other polls question as well)

You also might do a follow up with overturning Roe based on a fetus' right to life that would immediately outlaw Roe.

Another interesting question that could be telling would be to determine if people think at some point in pregnancy a fetus right to life should outweight the mother's right to choose in all instances other than a threat to her life.  ONly because I think the majority of people start to cringe at late term abortions, because we all recognize that babies can and do survive outside the womb all the time that are born during this period.

At some point the competing interests of a baby should take precedence over the choice of the mother.

I honestly think most people if given the chance to write abortion law would leave first trimester abortion relatively unchanged, with maybe a few restrictions (parental consent/notifications, waiting periods, informed consent etc), but I think by the time you reached the third trimest only the rabid pro choicers are going to argue for no restrictions or few restrictions.  

but I guess it doesn't surprise me after nearly 20 years on the bench.  Although, I can't imagine that being CJ would zip it up at all considering all of the administrative duties CJ has to do.

I think it was printed in my local paper.

Frankly I think Thomas gets a bad rap, and it is because he doesn't fit inside the neat little box of what the left defines a black man as fitting into.

have been as high or higher than that for Roe in a state like California or New York.

Polls are often meaningless, and should be, when it comes to what is constitutional.  Polls (or at least public opinion) matter, when it comes to writing law at the legislative level.

at the racial history of Chicago, Boston, or Kansas City I'd be willing to bet that Plessy was overwhelmingly supported there.

Who the heck is he playing?

Rehnquist.

...Scalia will stick around.  He will enjoy contributing to majority opinions that rectify the silliness of the Court in recent years.

The frustration of writing brilliant DISSENTS likely is giving him cause to consider departure.

Yes, I agree with what you wrote, but as far as your last paragraph please keep in mind that this entire conversation was spawned by an assertion the the American people are pushing for an originalist justice for SCOTUS. I said that no such thing is occurring -- Americans don't think of SCOTUS ideology like partisans do -- and was using the general support for Roe as proof. I wasn't advocating a judiciary by polling system.

I think extremists on both sides have really muddied the water and made it difficult to prognosticate what would happen -- and the extremity of what would happen -- in various states red and blue. However, I'm going to try anyway!

Would there be a "increase" in legalization of full term abortion in blue states? Probably not. Roe only forces states to keep abortion legal, so any states that WOULD increase the range of abortion procedures allowed could have done so already and thus wouldn't be likely to do so post-Roe.

But what about those who are against the morning after pill? Who are even against distributing contraception? I don't know the numbers of these people, but they're everywhere, they have certain politicians' ears, and they're not going anywhere. So, I don't know about your assertion that first trimester abortion is relatively safe, seeing as how a not insignificant percentage of voters are apparently against first DAY "abortion," and we all know how interest groups can have an effect far beyond their numbers.

of an aroused and educated electorate. Am I correct?

the difference or care, they tend to lean more towards the politics.

I don't think you can take a single poll (and I mean poll issue) and extrapolate that this means nobody wants originalists, especially when most of the people answering do not even understand what an overturn of Roe would do (as a matter of fact, I find it doubtful that an originalist would find for the one thing that would make abortion illegal-the right to life of a fetus-I think a conservative apointment could do this, but I don't think an originalist would).  Abortion from an originalist position is one that belongs fully within the perview of the states and it should.

I do think overall most people aren't pleased with the direction the courts have taken in recent years-although they may not comprehend why.

I know in a debate elsewhere after the Kelo decision, somebody made a comment about Bush (yes definitely shows a great inability to understand the facts) and the GOP, but they couldn't let go of their belief that originalists are the next best thing to evil, even after it was pointed out that the originalists were all in the minority-it just shows that most people have come to view the courts too much in terms of abortion, rather than in the direction the living breathing folks have taken the other issues.

btw the person who loathed the Kelo decision also was not keen on the medical marijauna one either.

I guess I miss the context of your last paragraph

Yes, my main point was that if what Americans proactively wanted was an originalist court they wouldn't be for upholding Roe v. Wade. If their main concern was actually having the constitution interpreted literally than they would know Roe was a stretch and would be against it. They aren't. Having originalists on the court is not a proactive concern of theirs, their attitudes toward the court has to do with their own opinions more than a judicial ideology.

Just so I don't get another "but they shouldn't rule by polls!" reply: I'm not saying that the SCOTUS should rule via polls, nor am I saying the American people are right to not educate themselves, NOR am I saying anything OTHER than it's clear Americans aren't first and foremost thinking about originalism vis-a-vis the SCOTUS because they're all over the map in their approval and disdain of various non-originalist SCOTUS decisions...

The last paragraph was in regards to special interest groups having political influence far beyond their numbers, and being willing to demagogue the public without concern for their factual "education." For instance, would it be fair to accuse you of fearing an aroused and educated populace if you're against teacher unions demanding more money and talking about poor students turning to crack (note: this is just illustrative) because the public school funding situation is so bad? I mean, can you see what I'm talking about here, and that it's true for both sides?

understanding the difference.

Americans think to much in terms of liberal/conservative that they apply those terms to the courts.  They also tend to think in terms of "how does it affect me and the things I believe in" not "how does this affect the country and the future of the country."  For instance the conservative in me wasn't super duper upset at the marijuana case, I am not personally in favor of the legalization of drugs, but the originalist in me thinks the dissent had it right, and while the dissent means I might lose in the legislature, I would much rather that where the issue be than the court taking it out of the hands of the people.  

I think too often that people think originalists just means the conservatives get to replace their opinion for the liberals opinion and that isn't it.

People, interchange originalist and conservative like mad-they have come to view them as the same thing when they aren't at all the same thing.  A conservative may be just as bad about the whole living breathing bs than a liberal, they will just find for the things they like rather than what the liberals like.  

I think if people actually understood the difference, they may come to have different opinions, some of course wouldn't, mainly because they are still caught up in the "me and what I want" aspect of it, and this is just as likely to come from conservatives as liberals.

I understand that National Journal's weekly poll of political insiders that will be published tomorrow says that a majority of "insider" Republicans say that POTUS should not nominate Gonzalez even if there are 2 open SC slots...

So what about that large plurality who think abortion should be legal in cases of "rape, incest, and the life of the mother."  For that to be policy (which would have 60+% support in most states), Roe must be overturned.  If it is overturned and that policy is enacted in the South and Midwest, I think people will not hold it against Rs.  If AL or LA tries to ban ALL abortions, there would be backlash.  I can't predict what would happen.

But I'm still left pondering what that vast middle on abortion is supposed to do?  The first step seems to be overturning Roe, so that compromises can be made.

I very purposefully didn't get too far into a discussion of abortion as an issue in and of itself. I was mooring it to the discussion of what kind of SCOTUS justice Americans seemed to want based on their general approval of a decision that is decidedly not originalist.

So I'm not going to get any deeper into a discussion on abortion -- or the "whys" of overturning or upholding RoevWade -- than I already have because arguing for RoevWade itself was not my intention, pointing out American's view of it in the context of what Americans value in a SCOTUS judge was.

I have to say I just cannot believe that the White House is just now expanding the list of possible replacements for O'Connor.  I mean, haven't these guys had five years to think about this?  Wasn't there a White House strategy to put a handful of highly credentialed conservative judges on the Courts of Appeals to groom them for the Supreme Court?  Haven't some of the smartest lawyers in Washington been dreaming about this day for a long, long time?

I just don't get it.  Bush should have been ready the week after O'Connor quit.  The only thing that makes sense is that they were surprised by the timing of her retirement.  It seems they had no intention of replacing O'Connor with a woman, and are now scrambling to find someone who (a) is indeed a woman, (b) is reliably conservative, (c) is relatively young, and (d) is smart and tough enough to make the grade.  Since those criteria frankly rule out nearly everyone on the federal Courts of Appeal, they need to broaden the search.  Trouble is (as noted above), that heightens the risk of an embarassing Lani Guinier or Zoe Baird Borking.  Three weeks seems hardly enough time to do the necessary homework.

Although it's worth very little, here's my suggestion: Carolyn Kuhl.  Naming her very well might trigger the nuclear option, but I think she's everything the White House is looking for.  And she's been vetted.  And she's a trial judge to boot!  When's the last time a state trial judge was named to the Supreme Court?

to someone who's not in line with the republican agenda (me), I honestly couldn't tell if the first poster was trolling or not.  And no, I'm not trolling, I am serious.  I considered that he MIGHT be trolling, but it wasn't obvious.

The fact that the current trend seems to be that its reasonable to claim that people of christian faith are currently discriminated against is complete hogwash from my perspective.  Yet, when people post that kind of thing here they're not called trolls, they're voicing a real concern of many republicans.  But then someone posts about how the homosexual agenda is corrupting our kids and its somehow identified as trolling (even though I've heard the same thing from some republicans)...

I just don't 'get' it I guess.

I don't understand why the losing side now gets to determine who gets nominated.  The media will paint anyone Bush nominates as an extremist, so why not just go ahead and nominate someone who truly shares his ideology?  The idea that you will ever please everyone is absurd.  Personally, I'd like to see him nominate Nancy Grace.  

?

is finished, he'll announce.