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 His withdrawn nomination to the DC Circuit was the lynchpin of the early filibuster efforts, but the opposition to his DC Circuit has since been exposed as a ploy to keep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.


  • At 1:18 PM, Blogger Tyler Simons said…

    Why so little about McConnell? Bush appointed him to the 10th circut, right? I'm far from a legal scholar, but I am a fierce Univ. Chicago partisan, so he's my guy by default. It might be hard, though, for his opinions "from the heart" or "as a man" to get through Feingold, Feinstein, and Schumer. (All of whom seem intent on turning me into a Republican.)

    I guess a good question is whether or not his respect for precedent outweighs his Catholic pro-life leanings and his distaste at the way Roe was decided.

  • At 12:41 AM, Blogger stealthlawprof said…

    No slight intended. I was not trying to comment on all of the possibilities.

    That being said, my sense is that McConnell is excellent -- and unlikely. I think this is a non-white-male seat. GWB can appoint a Hispanic or a woman or a Black, but he would pay a stiff price in the media for picking another white male, and why bother? He has plenty of solid non-white-male choices that I suspect he would love to shove down the Democrats' self-righteous throats.

    McConnell's outspoken views on abortion would really stir the hornet's nest. I believe the chances are nil that he would allow stare decisis to rescue a decision he has savaged (correctly, in my view). Stare decisis has less effect in constitutional cases precisely for this reason -- if the Court blows it seriously on a Constitutional question there is no practical way to fix it unless the Court overrules the erroneous decision. Despite the sententious sophistry of the Casey plurality, Roe's claim on stare decisis is weak. There is no reliance (in a legal sense) that can last more than nine months. The case has been questioned by many Justices on the Court and attacked by many of the states, so there is no general acceptance of the decision, the result, or the reasoning. Even Casey dispensed with the reasoning (a strange version of upholding a precedent). No justification for stare decisis applies well to Roe.

    Again, I would be quite pleased with McConnell. I just don't think that is likely -- not for this seat.


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