Redstate

Uplifting post.  I'm hopeful.  Someone called Rush yesterday and asked him who he thought would be the pick for O'Connor's replacement.  Rsh said he had no idea on names, but he has faith (based on the President's campaign promises) that the selection(s) will make us all proud.  I concur.  I am personally intruiged by the Cornyn possibility...

It would be great if Rehquist stepped down.  The PROTUS could then appoint Garza as the next CJOTSC.

Cornyn seems like a long shot, from where I sit.  And if there are two openings, can Bush really pick two Texans out of Cornyn, Garza, Gonzales, Luttig (I forget if Clement and Edith Jones are Texans too)?  That might be more Texans than the public is willing to swallow.  Also, a double retirement could increase pressure to pick a woman as well as a Latino, but it seems that all the prominently mentioned women and Latinos are Texans.  Ah, the complex possibilities.

I agree - probably a long shot, but interesting to say the least.  I don't know a lot about him, but from what I do know, I like.  He has had some essays on NRO dealing with the fillibuster and also the upcoming selection to the court....

If he does step down and the President has two nominations to make.....wow.  The left will go absolutely beserk.  Check out the July 4 offering from Sen. Kerry on his website.  If there were any doubts before about the left's sole motivation (Roe).....

Dear Friend,

The Fourth of July is a time for family, fun and fireworks.

But something happened today that ought to remind everyone what this holiday really symbolizes -- the freedom that makes America great.

That's exactly what hangs in the balance now that Sandra Day O'Connor has resigned from the Supreme Court.

This is no small deal. Over and over, she was the Justice who cast the critical vote in 5-4 cases deciding the most important issues in our nation.

Here's our bottom line for the johnkerry.com community heading into the holiday weekend: we can never let her be replaced by a Justice who does not respect the right to privacy and Roe v. Wade, and who doesn't understand the freedoms protected in our Constitution.

So, this weekend, as you enjoy the Fourth -- take a minute to think about what it means, and come back on Tuesday morning ready to fight for our freedom. It's all at stake now, and we need to come together more than ever.

Get ready,

John Kerry

the vacancy of two seats at once might, as Erick said, make things a little easier for the White House.  I think it would be harder for the Dems to stall two appointments of this magnitude simultaneously for very long.  And, with the next season starting in October, people will understand that there's more than enough time to vote on the nominees and won't go along with a long drawnout fight.  

Garza and Cornyn would present the Dems with the prospect of having to oppose both a Latino and a fellow Senator, which could be dicey for them.  Of course, it hasn't stopped them before.  

It's all gonna get real interesting.

I just can't buy into the Cornyn speculation.  I'm confident he'd be reliably conservative on the bench, but if Bush wants a white guy, there are several choices of top-rate intellect from the circuit courts, including Luttig, Roberts, McConnell, and Alito.  Given Bush's desire to nominate an Hispanic, and the political need to nominate a woman for either O'Connor or Ginsburg (whose health may soon dictate resignation), Bush probably has at most one chance to nominate a white male.  It would be a travesty to waste this slot on a senator who, though a loyal conservative, does not have the judicial and intellectual credentials of these other fine conservative choices.  

"The same person says that there is a "definite change in tenor""

Did you get a feel for what was meant by this? Just a change in the normal conduct of affairs, or a change in mood, or what?

I think the Dems will stall on O'Connor and hope Rehnquist retires. That sets up this best-case scenario for them:

1. They demand that Rehnquist be filled first on the argument that CJ is more important. Specter agrees.
   
   
2. They trash whoever Bush nominates for CJ but don't filibuster him/her.
   
   
3. He/she is voted in.
   
   
4. They trash whoever he nominates to replace O'Connor, then filibuster unless it's Gonzales.
   
   
5. They say they are cooperating because they didn't filibuster the CJ seat even though Bush offered a right-wing religious nutcase. But tilting the balance with another right-wing religious nutcase qualifies as extraordinary circumstances, so it's fair game to filibuster.

I believe it's a much better scenario for the WH if they get rolling on O'Connor's replacement before Rehnquist calls it quits. They need to force the nuclear option as early as possible.

Perhaps I'm the only one who thinks this is a bad idea, but two simultaneous retirements will give more steam to the Gang of 14 to demand a "moderate," whatever that means in legal adjudication, as a horse swap.  Nevermind that both SDO and WHR were GOP appointees.  

Recall what happened with the Fortas and Warren retirements, which followed closely on the heels of one another in '69.  Nixon appointed Burger (ok).  But he then appointed Blackmun (not ok) following bruising fights over Haynsworth and Carswell.  The forced position of compromise gave us the author of Roe and a justice who abdicated his Article III duties to lefty NE elite law clerks.

We must have posted simultaneously.  This will be a disaster if Rehnquist announces retirement before SDO's replacement is safely confirmed.

Also, I heard an open secret yesterday that Souter wants to retire, but not during a GOP administration.  His issue is inadequate compensation as a judge.  Hmmm... takings litigation his NH home might put a strain on those resources and get him to retire early to take a cushy, but well-paid lecturing circuit job...

This is assuming CJOTUS is getting ready to retire.

With two vacancies, Democrats will almost certainly try and block whoever is to replace O'Connor.  This is because they can look to the Rehnquist seat for cover.  They know that whoever replaces Renny won't alter the balance of the Court.  By confirming whichever conservative Bush nominates to replace Renny, Dems can argue that they're being reasonable when they carpet bomb the O'Connor replacement.

If Bush appoints Garza to replace Renny, he gets a two-fer: the first Hispanic CJOTUS as well as an easy confirmation as Garza's originalism won't change the balance.  This is probably what Bush wanted to do with Gonzales originally until he saw how destructive that would be.

The problem at that point is that with Garza replacing Renny, the most attractive candidates for O'Connor's seat become Luttig and Roberts.  Both are white-male originalists who will have a huge red bulls-eye on their backs as far as the 45 Senate Dems are concerned.  Dems will try their hardest to Bork either of them.

Enter Cornyn.  He also is young, he also has the Texas/Bushie connections, and he is conservative.  But as a senator, he is one of the pack and will not be as easily filibustered.  To the contrary, I can't imagine the Democrat 7 from the Gang of 14 filibustering Cornyn.

Now some will say, "Remember Ashcroft!" as evidence that senators don't always treat their own respectfully.  But Ashcroft was an outsider.  His brand of Pentecostalism kept him from enjoying the DC nightlife with his colleagues and engaging in the same type of social circles.  Cornyn, however, is a WASP from Texas who has likely made plenty of friends already in the Senate and most would have a hard time demonizing him.

As such, a Garza/Cornyn move may be the best strategy from Bush's perspective.

Souter's a bachelor who, to all appearances, has always lived a modest lifestyle.  I can't see him quitting over money.  Scalia would be more likely - he's complained about the money and has a huge family, although I think his kids are all through college.  But at the end of the day, I don't see anybody quitting the court over money.

Also, for what it is worth, Harry Reid stated in an interview that he has had conversations with the President (someone should tell this to Chuckie Schumer in between his "consultation" rants) and that he believes a Senator would be a good choice.

I agree that Souter wouldn't quit over money, much as I might like to see it.  I read somewhere recently that he's the richest member of the Court (lucky stock investments, I think), with a net worth in the tens of millions.  Doesn't seem that, for a guy in this situation, money would be enough to make him give up one of the greatest jobs on earth.

Yes, but he specifically named the 4 Senators he thought would be good choices and Cornyn wasn't one of them.

When questioned about other Senators he said basically that he named the 4 he thought were qualified.

he named Martinez, Crapo, Dewine, and Graham

Cornyn is one of the most highly qualified candidates out there.  He has about 13 years of judicial experience, both as a trial judge and a Texas Supreme Court Justice (7 years, compared to Gonzales two years), a few years as Texas Attorney General, and now 3 years as U.S. Senator.  And he's only 53 (I think).

There is no other nominee who posseses such diverse experience.  The man has served time at the highest levels of every branch of government!  Make no mistake, Cornyn would be a highly qualified candidate.

And don't expect to see Souter out on the lecture circuit.  The man has never given a speech since joining the Court, and this is a pretty common activity for Justices to do.

Yes, but I seem to recall Reid suggesting DeWine, Crapo, and Martinez, not Cornyn, whose conservative credentials are more reliable.  Moreover, query how much senatorial courtesy would extend to a conservative senator who's barely been in the senate long enough to build up much goodwill, especially with Democrats in the harsh political climate of the last few years.  In the end, I'm just not convinced his confirmation would be any easier than Luttig, Roberts, etc., and they would ultimately be better choices.

Doesn't surprise me, although without knowing their legal qualifications, I'm guessing Cornyn's are superior...

Cornyn has built up more respect within the Senate in less time than most.  He's certainly got a higher profile and more gravitas than Martinez.

DaveGOP, I agree with your astute analysis that Rehnquist's and O'Connor's simultaneous retirements hurts a white male nominee, by allowing the Dems to duck the political heat of filibustering the Hispanic or female and save their fire for the white male (who cares about them, right?).  I'm just not sure I agree that Cornyn can overcome this hurdle any better than Luttig or Roberts, who are first-rate conservative legal minds with (as far as I can see) no character flaws.  Can you think of any specific Dems who, in the face of their left-wing interest groups pressure, would filibuster Luttig/Roberts but not Cornyn, assuming the other pick is a reliably conservative female or Hispanic?  I don't see it happening.  I think at that point, either the balance of the Court becomes too important for a particular Dem that he has to filibuster any conservative, or he's made the decision that it's wrong to filibuster a qualified person over ideology alone (doubtful), but I don't foresee disparate treatment for Cornyn as opposed to Luttig/Roberts.

But more respect with Dems, with all their precious activist judicial precedents twisting in the wind?  I doubt courtesy goes so far.

I agree....with their precious "Roe" at stake in their minds, the fact that Cornyn is a colleague means nothing.  I do think Cornyn is an interesting choice - not because he'd have an easy confimration.

As a Senator who has voted on laws, such as the Federal Partial Birth Abortion Ban, wouldn't Cornyn have to recuse himself from any such case when it came before the Court?

We all know that a Justice who would have to recuse himself from those cases would be a disaster.

Make no mistake, I really like Cornyn, think he's an excellent US Senator and a smart guy with an impressive background of public service.  That said, for a Supreme Court vacancy, he doesn't have the relevant experience of Luttig or Roberts.  Luttig clerked for both Burger and Scalia, was a loyal, high-level servant to Republican administrations in the Justice Department, and was appointed to the Fourth Circuit at 38 years of age.  He has 14 years of experience on that court, and is widely regarded as not only one of the most conservative circuit judges in the country, but one of the smartest and most incisive opinion writers--most in the mold of Scalia.  Roberts graduated first in his class at Harvard Law and went on to clerk for Judge Friendly on the Second Circuit and then Justice Rehnquist.  He then served both in the Justice Department and as White House Counsel under Reagan, and in the Solicitor General's office under Bush the Elder.  Plus, he's argued roughly 50 cases before the Supreme Court, most of them in private practice.  And, of course, on top of all that, for the past two years he's served as a judge on the DC Circuit, the second most prestigious court in the land, where he's garnered a reputation as one of the best opinion writers on the entire federal bench.

So while Cornyn may be fine, I just don't think he's in the same class as either of these two guys, if we're looking for a white male.

that is that the only women you hear about are those "close" to Bush, who are all from Texas.  With his close ties to the Northeast, you would think he has at least one friend from his home state up North?

What if "the definite change in tenor" is not a Rehnquist retirement tomorrow, but a Ginsburg retirement.

Not sure if it is factual, but I read somewhere her health is supposedly as poor as (even worse than) Rehnquist's?

Bush should save Crapo for one of the two vacant 9th Circuit seats in Idaho.  Rumor from those who would know is Crapo would like to spend more time with his family in Idaho (his family did not want to move to DC) and that he'd be open to such a nomination.  

Crapo is from a solid red state with a GOP governor (I believe), so there would be no net loss in the Senate.  Plus, now that Reid has shot off his mouth about Crapo being confirmable, Reid would likely be stuck with that assessment in any confirmation battle over Crapo.

I've heard as well that her health has seriously deteriorated and that she could well be forced to retire within the year.  Nonetheless, the main public source for the Rehnquist speculation is today's column by Robert Novak, who has some of the best sources in Washington and who (along with Bill Kristol) correctly predicted the O'Connor retirement.  Based on that, my guess is that the imminent announcement is Rehnquist.

Regarding Rehnquist....but perhaps I'll also give my source another call just to verify.

and Rehnquist retires then all hell will break loose. I for one am going to enjoy watching it all as Bush packs errr I mean appoints strong conservative originalist jurists to the Supreme Court. Hell I guess at 85 Stevens should be calling it quits pretty quick also. That would be an epic opportunity to appoint four justices in one term.

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I think O'Connor, Rehnquist, Stevens, and Ginsburg will likely leave during Bush's term. Further, if Scalia is not elevated, he will leave two years from now (third year of Bush's term) giving Bush a fifth appointee.

I would hate to see Scalia leave!  I hope that putting some strong conservatives on the Court will reinvigorate Thomas and Scalia to stay in the same way it discourages the liberals from remaining.  

I wonder what this would do to the SCT caseload.  It seems the court pared back its work, at least, in part due to the inability of aging justices to keep pace.  If there were some young turks on the court, we might see more cert grants, esp. of appeals from the 9th...

See here.  Chief Justice makes $208,100.  Associate Justices make less than $200,000.  Good money, but a fraction of what they could make in private practice.  First-year associates at a typical big New York law firm - i.e., just out of law school, haven't even passed the bar yet - make approximately $125,000.

I don't know that I've ever seen anyone who was described as a close friend of Bush from the Northeast.  I got the sense that even in college & business school he made a big deal of letting people know he was a Texan just visiting.  I don't think he ever liked the Northeast much, frankly.

Garza for CJ, Janice Rogers Brown for AJ. Even though she was filibustered for the DC court, I think it would be tough to knock her down in a nomination for the SC, either that of the Constitutional/Byrd option would be on the table. Garza would probably be confirmed easily.

Of course, if Cornyn or some other Senator got confirmed first, it might take time to fill the open Senate seat, leaving us short one vote on the other nominee.

I think it is better.  If two are filibustered, it makes the "Constitutional Option" more likely since it will seem even more unreasonable to filibuster two.

McCain already hinted that he is ready to vote for the option if there is unreasonable filibuster (that is McCain's plan to win back the base in time for 2008, which will work).

I don't think Garza is so easily labelled as an originalist.  I think he is likely to be a straight across swap for O'Connor.  I know people who have interviewed with him for clerkships and at least one of them (a conservative) seemed pretty turned off.

That is a package I could live with.

The Chief Justice of the US, not the court.

Supreme Court justices never have to recuse themselves.  Who could you appeal to about it?  I think it was Scalia (MightyDuck Hunter) who reminded the press about that.

I think if somebody authored a bill they might recuse themselves, but not for merely voting for or against.

More than 9 Justices.

Divide the workload by adding three or so?  

Or add another layer of interminable appeals?  Three super-districts-- West of MissRiver, South of Mason-Dixon and West of Ohio(incl), and North of Mason-Dixon/ East of Ohio?