The Supreme Court and the O'Connor Resignation
Well, I meant to put up a post on possible retirements last night, but I didn't, and, wouldn't you know it, O'Connor decides to resign before I can put up the post. The thinking was that a retirement announcement was going to be made either Thursday or Tuesday, and, since it didn't happen Thursday, I thought I was clear for the weekend. Well, I suppose the "thinking" on these matters is mostly "guessing" anyways.
I might as well wrap up a little of what I was going to post. It looks like Rehnquist will be retiring as well this summer, but now that O'Connor beat him to it, he'll probably wait until closer to Labor Day when a replacement for her should be in place. There are a few rumors swirling that another retirement could come after the first of the year (mid-session? that would be odd, but perhaps that was just an indication that there would be a retirement effective at the end of the next term (terms start in October and go through June)). Most people seemed to think that the Rehnquist retirement would come first, followed by the O'Connor one. In fact (and I'm coming back here from several paragraphs down as new reading is telling me this), word around Washington is that Rehnquist already discussed his retirement with President Bush, and O'Connor swooped in and surprised them (which does jive with the scenario I was hearing before yesterday -- that Rehnquist was ready, but O'Connor could pull a fast one). As for a third retirement, John Paul Stevens or Ruth Bader Ginsburg would be most likely, as Stevens is the oldest member of the Court, and Ginsburg is the fourth oldest (behind Rehnquist and O'Connor) and has had various health problems.
Had Rehnquist gone first, some of the conventional wisdom said that the Dems would let a "conservative" get through to replace him (though probably make a lot of noise in doing so, and nearly unanimously vote against the nominee) as that would not change the balance of the court and then pointed to that as showing they were "reasonable" and demanding that O'Connor be replaced by another "moderate". O'Connor going first means that they have nobody they can point to in order to demonstrate their "reasonableness" on this issue should Bush nominate a "conservative" to replace her. Then, when a Rehnquist replacement comes up, they won't have the argument about the balance of the court. So, politically, it looks like things turned out well for Bush and the conservatives (assuming he sticks to his pledge about what type of jurist he would nominate).
A couple of quick notes regarding the above paragraph: 1) labels such as "conservative" aren't really appropriate for the Supreme Court, as it behaves differently from the more political branches of government. Of course, that differentiation has lessened, but it's still there. 2) The "balance of the court" (maintaining it, that is) should not be a valid point in choosing a new nominee. There is nothing specially ordained about this particular balance. I'd also like to point out that nobody (at least not much of anybody) complained about the balance of the court changing when Ruth Bader Ginsburg (a rather extreme leftist) replaced Byron White (a conservative and a dissenter (along with Rehnquist) in the original Roe v Wade).
As to a possible replacement for O'Connor, most of the conventional wisdom was that a woman would be nominated to replace her (I held this view, but I'm less certain now). That's not to say that she should be replaced by a woman -- she should be replaced by the most qualified candidate -- but the political environment would look unfavorably upon the nine-member Court being reduced to a single woman. That said, it looks like there are more potential male nominees than female, but, in deference to the CW, I'll start with the four women I've seen named.
Edith Jones -- currently on the Fifth Circuit, appointed by Reagan and approved for it in 1985. It's said that she was the runner-up to Souter when George HW Bush was picking a nominee in 1990. Oh, how I wish he'd gone with her. Born 1949.
Edith Brown Clement -- appointed to and approved for the U.S. District Court for the Eastern District of Louisiana by George HW Bush in 1991, and elevated to the Fifth Circuit Court of Appeals following nomination by George W Bush and confirmation in 2001. Born 1948.
Janice Rogers Brown -- former justice of the California Supreme Court, finally won confirmation to the D.C. Circuit Court of Appeals after the recent deal in the Senate. Born 1949.
Priscilla Owen -- former justice of the Texas Supreme Court, finally won confirmation to the Fifth Circuit after the recent deal in the Senate. Born 1954.
Some think that the last two don't have enough experience as they were just very recently confirmed to their latest positions, but they did serve on the supreme courts of their respective states. Historically speaking, only about one third of Supreme Court nominees have experience on the lower federal courts. It wasn't until the 1970's that a majority of its members had such experience (neither Rehnquist nor O'Connor did, incidentally). The thing I didn't notice until I sat down to write this was that three of the four are on the Fifth Circuit; seems a tad odd (though Texas is part of the Fifth Circuit). I'd just been thinking of them as the two Ediths and the two filibustered ladies. Can't really claim to have heard any one certainly in the lead, though Owen is the one I've heard the most recent rumors about, in conjunction with the O'Connor retirement, so I guess I'll give her the advantage here (several sources have said they hear there were no women on the short list; at least one said President Bush said to add Owen).
Now, bring on the men:
Michael McConnell -- member of the Tenth Circuit, nominated by GWB in 2001 and confirmed the following year. I was hearing his name a lot back in May and the beginning of June, not so much lately, for whatever that's worth. Downside for him is that he's written a ton, so there's a lot of stuff to look over, more stuff for the Dems to use against him. Born 1955.
Emilio Garza -- member of the Fifth Circuit (again), nominated by Reagan and confirmed to a District Court position in 1988, promoted to the Circuit Court level in 1991 after nomination by GHWB. This is the name I'm hearing most. President Bush wants to nominate the first Hispanic to the Court, so that certainly works in his favor. Born 1947.
John Cornyn -- Republican senator from Texas, and former Texas Attorney General, and Texas Supreme Court justice prior to that. His name has been floated about, probably the senator with the best shot. Some are saying all signs point to him, and that he had a special White House meeting around the time news of the resignation came out. However, others contend that he's being used as the President's point man in the Senate. Born 1952.
Alberto Gonzales -- current Attorney General, former White House counsel, former Texas Supreme Court justice. Lots of people are pointing at him, but it seems unlikely. As he was formerly White House counsel, he'd have to recuse himself from many cases, including those involving the War on Terror. The Dems like to paint him as the author of the "torture" memos (no, nothing he wrote approved real torture). Plus, he doesn't seem to be of the same judicial philosophy that Bush said he'd look for in a nominee (his base would be ticked off by such a nomination). So, all in all, it seems unlikely. However, he's a friend of Bush, and what Bush wants, he tends to go after. Also, as if the name weren't enough of a giveaway, he's Hispanic, which I've already talked about. Born 1955.
James Harvie Wilkinson III -- member of the Fourth Circuit, nominated by Reagan and confirmed in 1984. I've seen his name about a goodly amount, but nobody saying "this is the guy." Born 1944, making him older than most of the potential nominees (not a plus for him).
J Michael Luttig -- another member of the Fourth Circuit, nominated by George HW Bush and confirmed in 1991. I've seen his name around more than Wilkinson's, but he's mentioned more as a replacement for Rehnquist than O'Connor (several rumors of him for Rehnquist and Garza for O'Connor). Born 1954.
Samuel Alito, Jr. -- member of the Third Circuit, nominated by George HW Bush and confirmed in 1990. Some have called him "Scalito" because of his similarities with Justice Scalia. Born 1950.
John Roberts -- member of the D.C. Circuit, nominated by GWB and confirmed in 2003, was also assistant solicitor general under GHWB. Only serving two years as a judge is seen as a negative. Born 1955.
Ted Olsen -- Solicitor General in Bush's first term (the guy who argues the U.S. government's case before the Supreme Court). He also gave the Bush arguments before the Supreme Court in Bush v Gore, which would lead to strong objections from the Dems. I heard his name a goodly amount as a potential nominee during the first term, but haven't heard much lately (except on long lists, like this one). His wife was in the plane that hit the Pentagon on 9/11. Born 1940, so age is also an issue for him.
That came out to a nice thirteen. Ask me for my guess, and I'll go with someone from the Fifth Circuit, or, if I have to go with a particular person, I'll go with Garza for the time being.
I am happy that I was able to come up with a longer list of potential nominees than I could readily find in one place on the web (though I'll admit, I didn't try overly hard ... Okay, I tried harder, and found some, though the only one I really bothered to look at just listed potential nominees with birth years, so I think my list is better, and the extra nominees I thought either weren't going to be nominated (though I had thought of putting one or two of them in my list, but I'm too lazy to go back and do it), or I hadn't heard of (though my opinion and name recognition probable don't factor into the President's decision on who to nominate).
That seems like about enough for now. Come back sometime later for more on Sandra Day O'Connor, the nomination battle, retirement rumors or the like.
I might as well wrap up a little of what I was going to post. It looks like Rehnquist will be retiring as well this summer, but now that O'Connor beat him to it, he'll probably wait until closer to Labor Day when a replacement for her should be in place. There are a few rumors swirling that another retirement could come after the first of the year (mid-session? that would be odd, but perhaps that was just an indication that there would be a retirement effective at the end of the next term (terms start in October and go through June)). Most people seemed to think that the Rehnquist retirement would come first, followed by the O'Connor one. In fact (and I'm coming back here from several paragraphs down as new reading is telling me this), word around Washington is that Rehnquist already discussed his retirement with President Bush, and O'Connor swooped in and surprised them (which does jive with the scenario I was hearing before yesterday -- that Rehnquist was ready, but O'Connor could pull a fast one). As for a third retirement, John Paul Stevens or Ruth Bader Ginsburg would be most likely, as Stevens is the oldest member of the Court, and Ginsburg is the fourth oldest (behind Rehnquist and O'Connor) and has had various health problems.
Had Rehnquist gone first, some of the conventional wisdom said that the Dems would let a "conservative" get through to replace him (though probably make a lot of noise in doing so, and nearly unanimously vote against the nominee) as that would not change the balance of the court and then pointed to that as showing they were "reasonable" and demanding that O'Connor be replaced by another "moderate". O'Connor going first means that they have nobody they can point to in order to demonstrate their "reasonableness" on this issue should Bush nominate a "conservative" to replace her. Then, when a Rehnquist replacement comes up, they won't have the argument about the balance of the court. So, politically, it looks like things turned out well for Bush and the conservatives (assuming he sticks to his pledge about what type of jurist he would nominate).
A couple of quick notes regarding the above paragraph: 1) labels such as "conservative" aren't really appropriate for the Supreme Court, as it behaves differently from the more political branches of government. Of course, that differentiation has lessened, but it's still there. 2) The "balance of the court" (maintaining it, that is) should not be a valid point in choosing a new nominee. There is nothing specially ordained about this particular balance. I'd also like to point out that nobody (at least not much of anybody) complained about the balance of the court changing when Ruth Bader Ginsburg (a rather extreme leftist) replaced Byron White (a conservative and a dissenter (along with Rehnquist) in the original Roe v Wade).
As to a possible replacement for O'Connor, most of the conventional wisdom was that a woman would be nominated to replace her (I held this view, but I'm less certain now). That's not to say that she should be replaced by a woman -- she should be replaced by the most qualified candidate -- but the political environment would look unfavorably upon the nine-member Court being reduced to a single woman. That said, it looks like there are more potential male nominees than female, but, in deference to the CW, I'll start with the four women I've seen named.
Edith Jones -- currently on the Fifth Circuit, appointed by Reagan and approved for it in 1985. It's said that she was the runner-up to Souter when George HW Bush was picking a nominee in 1990. Oh, how I wish he'd gone with her. Born 1949.
Edith Brown Clement -- appointed to and approved for the U.S. District Court for the Eastern District of Louisiana by George HW Bush in 1991, and elevated to the Fifth Circuit Court of Appeals following nomination by George W Bush and confirmation in 2001. Born 1948.
Janice Rogers Brown -- former justice of the California Supreme Court, finally won confirmation to the D.C. Circuit Court of Appeals after the recent deal in the Senate. Born 1949.
Priscilla Owen -- former justice of the Texas Supreme Court, finally won confirmation to the Fifth Circuit after the recent deal in the Senate. Born 1954.
Some think that the last two don't have enough experience as they were just very recently confirmed to their latest positions, but they did serve on the supreme courts of their respective states. Historically speaking, only about one third of Supreme Court nominees have experience on the lower federal courts. It wasn't until the 1970's that a majority of its members had such experience (neither Rehnquist nor O'Connor did, incidentally). The thing I didn't notice until I sat down to write this was that three of the four are on the Fifth Circuit; seems a tad odd (though Texas is part of the Fifth Circuit). I'd just been thinking of them as the two Ediths and the two filibustered ladies. Can't really claim to have heard any one certainly in the lead, though Owen is the one I've heard the most recent rumors about, in conjunction with the O'Connor retirement, so I guess I'll give her the advantage here (several sources have said they hear there were no women on the short list; at least one said President Bush said to add Owen).
Now, bring on the men:
Michael McConnell -- member of the Tenth Circuit, nominated by GWB in 2001 and confirmed the following year. I was hearing his name a lot back in May and the beginning of June, not so much lately, for whatever that's worth. Downside for him is that he's written a ton, so there's a lot of stuff to look over, more stuff for the Dems to use against him. Born 1955.
Emilio Garza -- member of the Fifth Circuit (again), nominated by Reagan and confirmed to a District Court position in 1988, promoted to the Circuit Court level in 1991 after nomination by GHWB. This is the name I'm hearing most. President Bush wants to nominate the first Hispanic to the Court, so that certainly works in his favor. Born 1947.
John Cornyn -- Republican senator from Texas, and former Texas Attorney General, and Texas Supreme Court justice prior to that. His name has been floated about, probably the senator with the best shot. Some are saying all signs point to him, and that he had a special White House meeting around the time news of the resignation came out. However, others contend that he's being used as the President's point man in the Senate. Born 1952.
Alberto Gonzales -- current Attorney General, former White House counsel, former Texas Supreme Court justice. Lots of people are pointing at him, but it seems unlikely. As he was formerly White House counsel, he'd have to recuse himself from many cases, including those involving the War on Terror. The Dems like to paint him as the author of the "torture" memos (no, nothing he wrote approved real torture). Plus, he doesn't seem to be of the same judicial philosophy that Bush said he'd look for in a nominee (his base would be ticked off by such a nomination). So, all in all, it seems unlikely. However, he's a friend of Bush, and what Bush wants, he tends to go after. Also, as if the name weren't enough of a giveaway, he's Hispanic, which I've already talked about. Born 1955.
James Harvie Wilkinson III -- member of the Fourth Circuit, nominated by Reagan and confirmed in 1984. I've seen his name about a goodly amount, but nobody saying "this is the guy." Born 1944, making him older than most of the potential nominees (not a plus for him).
J Michael Luttig -- another member of the Fourth Circuit, nominated by George HW Bush and confirmed in 1991. I've seen his name around more than Wilkinson's, but he's mentioned more as a replacement for Rehnquist than O'Connor (several rumors of him for Rehnquist and Garza for O'Connor). Born 1954.
Samuel Alito, Jr. -- member of the Third Circuit, nominated by George HW Bush and confirmed in 1990. Some have called him "Scalito" because of his similarities with Justice Scalia. Born 1950.
John Roberts -- member of the D.C. Circuit, nominated by GWB and confirmed in 2003, was also assistant solicitor general under GHWB. Only serving two years as a judge is seen as a negative. Born 1955.
Ted Olsen -- Solicitor General in Bush's first term (the guy who argues the U.S. government's case before the Supreme Court). He also gave the Bush arguments before the Supreme Court in Bush v Gore, which would lead to strong objections from the Dems. I heard his name a goodly amount as a potential nominee during the first term, but haven't heard much lately (except on long lists, like this one). His wife was in the plane that hit the Pentagon on 9/11. Born 1940, so age is also an issue for him.
That came out to a nice thirteen. Ask me for my guess, and I'll go with someone from the Fifth Circuit, or, if I have to go with a particular person, I'll go with Garza for the time being.
I am happy that I was able to come up with a longer list of potential nominees than I could readily find in one place on the web (though I'll admit, I didn't try overly hard ... Okay, I tried harder, and found some, though the only one I really bothered to look at just listed potential nominees with birth years, so I think my list is better, and the extra nominees I thought either weren't going to be nominated (though I had thought of putting one or two of them in my list, but I'm too lazy to go back and do it), or I hadn't heard of (though my opinion and name recognition probable don't factor into the President's decision on who to nominate).
That seems like about enough for now. Come back sometime later for more on Sandra Day O'Connor, the nomination battle, retirement rumors or the like.
posted by DC | 2:57 AM
0 Comments:
Post a Comment
<< Home