Supreme Court Nomination
Harriet Miers has withdrawn her nomination to the Supreme Court, so we're back to square one. The nomination was doomed from the start, as Bush made the mistake of selecting one of his cronies. Now we'll see if he can pick a qualified conservative. Also, we'll see whether he'll pick an ideologue like Janice Rogers Brown or Edith Jones to placate the religious right and set off a huge battle in the Senate, or if he'll try for another consensus pick like John Roberts.
(Updated 10/27/05 by G. Orlando)Potential Nominees:
After the Miers fiasco, Bush needs to turn his attention back to picking a qualified nominee.
Slate offered a useful shortlist of potential nominees before the Roberts nomination.
Liberals are concerned about the Constitution in Exile movement that attempts to restrict Federal power that has expanded greatly since the New Deal. Jeffrey Rosen summarizes the movement while others question whether such a "movement" even exists.
Jeffrey Rosen explains that there are several schools of thought in the conservative movement when it comes to interpreting the Constitution.
Profiles of potential nominees:
Samuel A. Alito, Jr.
Janice Rogers Brown
Edith Brown Clement
John Cornyn
Emilio M. Garza
Alberto R. Gonzales
Edith Hollan Jones
J. Michael Luttig
Michael W. McConnell
John G. Roberts
Ted Olson
J. Harvie Wilkinson
Priscilla Owen
The Roberts Confirmation:
John Roberts gave a very impressive performance at his hearings, and he was confirmed with the support of half of the Democratic Senators. He demonstrated that he is not an ideologue, and he has a modest judicial philosophy that respects precedent and the rule of law. Liberals listening to this should be reassured, while movement conservatives should instead be worried. Roberts sounds like he'll be more like a Justice O'Connor or Justice Kennedy as opposed to a Justice Scalia or Thomas. I think he set the bar very high for the next nominee, so hopefully Bush will not appoint a partisan hack to fill the next opening.
Jeffrey Rosen has written a great column explaining why liberals should support the Roberts nomination.
The Washington Post explains why Roberts is not a Scalia or Thomas.
Remembering Rehnquist:
William Rehnquist was a reliable conservative who had a tremendous influence on the Court. Unlike O'Connor he was loved by conservatives because he was much more reliable.
Alan Dershowitz doesn't pull any punches in a scathing column in which he basically calls Rehnquist anti-Semitic. This quote from Dershowitz sums up his feelings well: "Rehnquist’s judicial philosophy was result-oriented, activist, and authoritarian. He sometimes moderated his views for prudential or pragmatic reasons, but his vote could almost always be predicted based on who the parties were, not what the legal issues happened to be. He generally opposed the rights of gays, women, blacks, aliens, and religious minorities. He was a friend of corporations, polluters, right wing Republicans, religious fundamentalists, homophobes, and other bigots."
Lawrence Tribe has a much different view, calling Rehnquist a gentleman of the court.
Remembering O'Conner:
Thoughts on Sandra Day O'Connor - Charles Ogletree, E. J. Dionne, NY Times, Washington Post
Charles Lane explains how O'Conner's role as a pivotal swing vote was being challenged by Justice Kennedy, who broke with the conservatives on a number of important decisions in the last term.
Judicial Activism:
It seems like everyone these days, including many prominent Democrats, likes to criticize "activist" judges. Of course, the activism itself isn't really the problem in their eyes. They just don't like the end result. They're more than happy with judicial activists when they strike down laws they don't like.
Damon Root eloquently points out that judicial activism is necessary to protect individual liberties against the wishes of the majority, regardless of whether the majority is liberal or conservative. Root notes that "[t]he common denominator is that both liberals and conservatives will gladly sacrifice individual liberty to further their particular notions of 'good government.'"
It's also interesting to note that a recent analysis by the New York Times, a review of decisions involving whether to overturn federal laws, conservatives like Clarence Thomas came out as the most "activist" by ruling the most often that the law in question was unconstitutional. It would be interesting, however, to see the same analysis applied to state laws as well.
The American Constitution Society, a liberal group, sponsored an interesting conference discussing judicial activism, and whether conservatives are just as likely to engage in activism. One of the panelists was Judge Luttig, who comes across as a very thoughtful and principled conservative jurist.
Jeffrey Rosen compares candidate who he considers to be conservative judicial activists like Brown and Jones with "principled conservatives" like Luttig and Roberts.
Political Battle Lines:
Newsweek covered the politics behind the President's first decision following O'Connor's retirement.
The Washington Post explains how the right has been waiting for this moment for years, and how the conservative movement is now mobilized to avoid a Souter-style appointment.