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.


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