Thursday, September 22, 2005

More on names -- Karen Williams, Consuelo Callahan??

Names continue to bounce around with reference to the additional vacancy on the Court. Of course, blogs have no shortage of secret sources high in the White House (or other impressive public buildings). Among the names that seem to have active play right now are Consuelo Callahan of the 9th Circuit and Karen Williams of the 4th Circuit.

I claim no inside source at all. That disclaimer having been made, the Callahan rumor strikes me as a bit contrived, but the Williams rumor feels substantive to me.

Callahan is a demographic dream -- Hispanic woman -- but she has little beyond that to indicate why the President would be paying attention.

Williams has more track record because she has been on the 4th Circuit for 13 years -- yes, that is the 4th Circuit that is the most conservative appellate court in the nation. Someone has to have been voting with Wilkinson and Luttig to develop that reputation, and it appears it has been Williams. (This reminds me a little bit of 1986 when a Judge Scalia of the DC Circuit was nominated ahead of better-known colleagues from that court, including Robert Bork.)

I do not believe that judicial experience is a prerequisite for becoming a Justice; however, some indication that a person has thought carefully about the role of the Supreme Court in American government is a prerequisite. Among other places, that background can come from work in the Justice Department, law school teaching, significant litigation experience in the federal appellate courts, or service as a federal judge.

Judge Callahan's two years on the 9th Circuit were preceded by a number of years as a state trial and intermediate appellate judge. Those positions do not indicate much exposure to the national scope and impact of the Supreme Court's work. (Soon-to-be Chief Justice Roberts also had only two years as a federal judge, but that was preceded by extensive Supreme Court litigation experience and a number of very responsible assignments in the Justice Department.)

Judge Williams's longer stint on the 4th Circuit evinces more experience grappling with the larger issues of the role of federal courts and the Supreme Court. The only sort-of-smoking gun in her record is her opinion holding that a federal statute properly established an evidentiary standard in place of the Miranda rule (her decision was reversed by the Supreme Court -- United States v. Dickerson). Given the common theme of the Roberts hearings that Congress feels the Court lacks respect for it, Williams should be able to fend off any attacks based on that case. It is inevitable in the course of 13 years that one will make a decision with which a higher court disagrees; her mistake here, if any, was deferring to Congress more than the Supreme Court apparently thought was proper. ("Surely, Senator, you can agree that federal courts should give deference to Congress.")

Predicting is a dangerous game, and I ought to have enough sense to avoid it. Nonetheless, Karen Williams's name is one that rings true to me in this process. Watch to see if we become more familiar with it.

Man bites dog!

Let's see -- Leahy, Kohl, and Daschle (whose vote is as meaningless as mine) now support Roberts. What gives?

These Democrats are simply setting the table for opposing the next nominee. The one week delay in the committee vote gives them room to hope the public will forget how they embarrassed themselves in the hearings. Now, they will vote for Roberts, who was clearly going to be confirmed anyway, and claim on the next nominee -- regardless who it is -- (1) that their vote for Roberts proves they are not opposing all Bush appointments and (2) that this nominee is so far out of the mainstream (i.e., not approved by People for the American Way) that opposition and even filibuster are justified.

Does it lack any integrity or principle? Yes. Is it underhanded and deceptive? Yes. Should we be surprised? No.

Monday, September 19, 2005

Hugo Black had it very, very right

Eugene Volokh, on the Volokh Conspiracy, has a posting now about Justice Black's questions in oral argument that presciently predicted the Griswold privacy doctrine's impact on abortion laws. My comment follows:

The larger point that Black understood from personal experience was that any doctrine allowing the Court to create rights from whole cloth can be used to invalidate any law as soon as five Justices decide to do so.

It does not matter whether the source of the rights is passed off as substantive due process (an oxymoron), the Ninth Amendment (an anti-preemption provision), or eminating from the penumbras of other rights (the twisted progeny of Bill Douglas's imagination).

It also does not matter whether the claimed "right" is privacy (which can easily slide from contraception to abortion to homosexuality to adult consensual incest, polygamy, etc.) or the liberty of contract (sorry, my libertarian friends, the Constitution no more dictates your world view than it does Ted Kennedy's) or whatever other right five Justices like more than the electoral majority.

The unenumerated rights doctrine by any name and with any intent is an unvarnished usurpation by judges of the people's sovereignty. The purpose of a written constiutution is to allow the people to agree by super-majority to withdraw certain subjects from the majoritarian process. If someone wants other topics withdrawn, they must go through the same process -- Constitutional amendment. Allowing anyone or any idea to short-circuit this is the height of illegitimacy.

Friday, September 16, 2005

Names, names, names ....

Lots of intersting names continue to circulate with regard to the next Supreme Court seat: Priscilla Owen, Larry Thompson, Miguel Estrada, Alberto Gonzales, Janice Rogers Brown, Michael McConnell, etc.

Todd Zywicki of the Volokh Conspiracy suggested on Septemeber 5 that the Roberts nomination indicated a preference by GWB for people he himself had nominated earlier and that this trait reflected GWB's penchant for following his gut (with an apt reference to seeing into Vladimir Putin's soul).

I agree and posted a response at the time noting: "I do not think George W. Bush is alone in this trait. His father did the same thing. That is how we got David Souter on the Supreme Court. Bush 41 had interviewed him only a few months earlier with regard to Souter's appointment to the First Circuit, and he liked him. We can only hope that 43 has done a better job of both figuring out his base and looking into judges' souls."

That being said, I still believe GWB is more likely to appoint someone whose soul he has already viewed and approved. That is why some names (Luttig, Wilkinson, Jones) are not on my list. I also do not see any David Souters on the above list. 43 seems much more careful about keeping the base happy; I am not sure he will like anyone's soul enough to take that risk.

I wonder if the uproar over Gonzales and privacy isn't a pretext. The claimed source of his "squishiness" on abortion is a thin reed. However, his perceived role in the torture memo fiasco strikes me as the type of problem that could cause some Republican senators to oppose his nomination. Rather than embarass the President publicly over the torture issue, are they just allowing the abortion discussion to continue so the president has a more plausible excuse for passing over Gonzales?

Brown and Owen are interesting of course because they just recently made it through the Democratic filibuster. On that front, the possibility of an Estrada nomination is particularly interesting. His withdrawn nomination to the DC Circuit was the lynchpin of the early filibuster efforts, but the opposition to his DC Circuit has since been exposed as a ploy to keep him off the Supreme Court, not any measure of his qualifications. Of course, the filibuster succeeded only when the Republicans had a more tenuous hold on the Senate. Will GWB be able to go to Estrada now because he has 55 GOP senators? I suspect the answer is that he can if he wants to do so, but he could also go to any of the names above -- except Gonzales -- and push then through. Having fifty-five senators allows you some pretty significant attrition from your own party before you are in trouble.

The Hearings End -- What Now?

A discussion on Ann Althouse's blog prompted me to respond. Here is a slightly edited version of that post:

Now that the Roberts hearings are over it will be interesting to see the next moves by the President and the Senate Democrats, particularly with reference to the still-open seat.

On one hand, the Democrats could set up Roberts as a benchmark for future nominees. Roberts sets a mark that would be hard for almost anyone to meet, and that would make it easier to oppose the next Bush appointment without necessarily looking like ideologues.

On the other hand, they may have been too aggressive already in attacking Roberts to be able to sell a vote for him either to their base or to the public which might smell some partisan chicanery in the air. (Could the one week gap between hearings and vote reflect a Democratic plan to try to soft-pedal their hearing performance and set up Roberts as the unattainable benchmark for the next nominee?)

The prevailing wisdom is that no nomination will come until after the Roberts vote from the committee or even from the full Senate. I questioned this last week and still question it. Roberts is clearly in. A quick announcement puts the next nomination in the context of Roberts and the Committee Democrats' poor performance with him. Any screaming about the new nominee is just going to look like more of the same partisanship. Allowing time to pass may allow the Democrats to make their opposition to the next nominee look principled.

Thursday, September 08, 2005

When will GWB appoint a new Justice?

Let's start with some useless speculation -- How long will President Bush take to make his decision on the remaining Supreme Court seat?

I get this weird sense that GWB may be trying to get Chief Justice Roberts (an appointment I predicted before starting this blog, but for which I would like to receive credit anyway -- of course, I was hardly alone in seeing that one) through the confirmation process before giving out the next name. Oddly enough, the Senate Democrats seem to sense this and act irritated that he will not give them both names at once.

What am I missing here? I see no advantage to GWB in delaying the naming of the new Associate Justice, and I see no reason why the Democrats should object if he does delay -- except perhaps to convince him to delay.

The Demos are going to look silly attacking Roberts at this point. (And that, as always, is unlikely to deter them.) As I noted in a comment on Ann Althouse's blog, they have spent months and millions trying to get an angle on Roberts, and they have nothing to show for it. Roberts has great press and great polling numbers. The Donkeys can try to flex their muscle and get 40-45 votes against him, but they cannot defeat the nomination. They simply risk more alienation of whatever swing voters are left if they attack Roberts aggressively. (If they go so far as to filibuster -- a scenario I find very unlikely -- they also risk that the Pachyderms will dust off the "nuclear" option.)

Furthermore, the Roberts for Rehnquist transition is far better from their perspective than a Roberts for O'Connor transition. The longer the President delays, the longer O'Connor serves. That should be a godsend from the Donkeys' perspective.

On the other hand, for GWB to delay will allow the Demos to practice on Roberts and get really worked up for a full-scale attack on the next nominee. A quick appointment would force them to figure out where to concentrate their fire. (A bit of a variation on the Rehnquist-Scalia combination from the Reagan era.) While the new nominee is likely to catch the flak anyway, putting it right next to the Roberts hearings is more likely to show the opposition for what it is.

Of course that leads to yet one more question -- what is the opposition to GWB's appointments? Very simple -- think in terms of the Federalists after losing the election of 1800. The Midnight Judges Act was their attempt to keep the judiciary as their bastion of power even though they had lost the election. Similarly, the Donkeys have lost elections but have had a power base in the courts. Now that power base is endangered. If they lose this, they have nothing left until they can win elections again ... and as long as the benighted electorate sees the Donkeys as the party of gay marriage, terrorist appeasement, and race baiting (alas, not nearly the ring of "Rum, Romanism and Rebellion"), the Demos will be the Permanent Minority Party.

P.S. I tried to create a link where I reference the Althouse blog, but I am new at this. Here is the information: