Confirmation Fight:

Reading the tea leaves, it seems clear that there will be a brutal confirmation battle regardless of who is nominated. At this point, a confirmation battle will be supply-side driven--the interest groups have the money already, and they are going to spend it one way or the other. And then try to raise some more. And the politicians are going to try to raise money by pandering to these same players. No one is going to roll over on either side just because a particular nominee is thought to be "moderate" rather than "conservative".

The credentials or qualifications of the particular nominee under consideration will be largely beside the point.

So, the same nasty fight is going to occur regardless of who is nominated, and be just as nasty and expensive, regardless of who is nominated and the particular perception of whether he or she is moderate or conservative. So, it seems to me, the Bush Administration would be smart to simply nominate the best person that they want, and not be tricked into thinking that they can somehow avoid a nasty confirmation battle by nominating someone with a more "moderate" perception.

So if there is going to be a fight (which there undoubtedly will be), they may as well at least make it someone worth fighting for.

Paul Gowder (mail):
Why do you assume that your political opponents will be so unethical as to oppose anyone put forward by Bush, no matter how sane?

(Of course, it's a moot point, because Bush is, I predict, going to dredge up some unknown federalist society flack)
7.1.2005 2:17pm
Hans Bader (mail):
Al Gonzales will probably be nominated, which will likely pull the court further to the left. Too bad. It would be better if he'd pick the well-respected 5th Circuit judge Emilio Garza, who actually is a conservative. Appointing Garza, a Hispanic, would have the added fringe benefit of reducing the pressure to appoint Gonzales to the court to provide Hispanic representation on it, when Chief Justice Rehnquist steps down in the not-too-distant future. The Fifth Circuit's Edith Jones is also be well-qualified for the high court, although the fact that she is even more conservative than Garza might make her more difficult to confirm (although being a woman would help a bit). Janice Rogers Brown's property rights views, which might have been seen as a liability before, might be an asset after the Kelo v. New London decision, which illustrated the weakness of constitutional protections for property rights. Nominating her would probably soothe free-market conservatives angry over the Administration's big spending ways.
7.1.2005 2:20pm
Ken Balakrishnan (mail):
Of course there'll be lots of squawking from partisans, but all Bush has to do to avoid a nuclear confrontation (assuming he wants to) is find someone that the seven Dems in the Compromise group can accept. If you're saying that those seven won't distinguish between a moderate conservative vs. an extreme conservative, I'll respectfully disagree.
7.1.2005 2:25pm
Henry (mail):
Gonzales' politics shouldn't be the main issue with him. He wrote memos defending torture, and, in Texas, allowed innocent people to be executed by not informing Gov. Bush of problems with their convictions. Shouldn't ethics count?
7.1.2005 2:27pm
Chris Brody:
On the contrary. There is no question whatever that if the Administration engaged in even the most token dialogue with both parties in the Senate prior to making the nomination, and via, this show of respect for the separation of powers, sought assurances from a small handful of Democrats that they would not oppose the nomination of a non-looney conservative, no fight would ensue.

But this is surely too much to hope for, as the Administration and a majority of Senate Republicans are all but openly spoiling for a fight.
7.1.2005 2:27pm
Why do you assume that your political opponents will be so unethical as to oppose anyone put forward by Bush, no matter how sane?

Let history be your guide. Senator Kennedy made David Souter out to be an Ann Coulter clone.
7.1.2005 2:28pm
Shelby (mail):
Unfortunately for me, whoever this administration considers "someone worth fighting for" is probably someone I'd reject. I'd love them to nominate Janice Rogers Brown, but they've already thrown her as a sop to the economic conservatives. She's unlikely to be tapped just a month or two after being confirmed as a circuit judge.

Todd is surely correct about the politics involved, in any event.
7.1.2005 2:29pm
Gonzales' politics shouldn't be the only issue with him. He wrote memos defending torture, and, in Texas, allowed innocent people to be executed by not informing Gov. Bush of problems with their convictions. Shouldn't ethics count?
7.1.2005 2:29pm
DJ (mail):
It's not ethics, Paul. It's politics. Hell, many Democrats opposed SOUTER for crying out loud. There's big bucks at stake here (for both sides), and Prof. Zywicki is right that the Democrats will not accept a Bush nominee without something more than a token fight.

But I disagree with Prof. Zywicki that this necessarily militates against Bish picking a perceived "moderate." This is indeed politics, after all, and if the Dems oppose somebody who the press concedes is a moderate pick (Gonzalez comes to mind), then this is a great triangulation opportunity for the President. And, as Clinton's second term showed, triangulation is just plain good politics.

Moreover, Bush needs to worry a little about whether he has the votes to replace O'Connor with a well-known conservative. Again, this is politics, and Senators like Collins, Snowe, Chaffee, Voinoivich, and of course Arlen Specter are not guaranteed ayes for a rightwing nominee to the High Court. If the votes aren't necessarily there for Luttig or Roberts, Bush may want to think twice about making this a fight worth fighting for.
7.1.2005 2:32pm
Cheburashka (mail):
Why do you assume that your political opponents will be so unethical as to oppose anyone put forward by Bush, no matter how sane?

7.1.2005 2:32pm
Souter was confirmed 90-9. Saying "Ted Kennedy will attack the nominee regardless" is a weak argument; there are plenty of consensus nominees available, unless you define consensus to require that not a single Senator raise an objection.
7.1.2005 2:33pm
A Blogger:
Paul Gowder writes:

"Why do you assume that your political opponents will be so unethical as to oppose anyone put forward by Bush, no matter how sane?"

I think a great way of proving Todd wrong is by listing all of the Justices allegedly on the short list who you as a liberal will not oppose.
7.1.2005 2:34pm
Wisconsin Badger:
I remember the name of Diane Sykes came up not long ago. She had a surprisingly easy confirmation battle (ok-ed by both of the state's Democratic senators) last year and was on the Wisconsin Supreme Court for 5 years before that. She's also friendly with libertarians she's attended the Institute for Justice's student conference. I think this 1-2 punch (plus her female-status) might make her close to unique among possible choices. I don't know how "conservative" she is on abortion, however, so that might be something the Administration would be wary of. Any thoughts?
7.1.2005 3:02pm
fumanchu (mail):
A young, conservative, female lawyer is required, so why not the obvious choice: Ann Coulter. Then just sit back and watch the fun.
7.1.2005 3:03pm
Ryan M:
Hans Bader -
I agree with you about Janice Rogers Brown. Everything is now stacked in her favor, especially the "Taking Clause" issue.
7.1.2005 3:04pm
Ryan M:
How to really piss off a liberal...

Nominate Judge Roy Moore!
7.1.2005 3:05pm
Paul Gowder (mail):
The short list changes from day to day. Most short lists I've seen are, frankly, full of crazies. I mean, I can list some Republicans who I would support, although they're not on the short list. Kozinski. He's sane, and a republican. Honestly, I can't think of any others right now, simply because I've only been reading up on the short-listers. I'd oppose Posner, but not very violently. Ditto with Easterbrook. Rymer seems sane...
7.1.2005 3:06pm
anonymous coward:
Of course the lefty interest groups will oppose whoever's nominated, but that doesn't mean a brutal confirmation battle.

The Dems will press for a fillibuster (1) if they think they can block the nominee or (2) as a bargaining chip. Pissing off either party's moderates destroys their position. I think the more moderate few on Bush's list would be received with huge private relief, and the nomination battle might be nasty but would mostly be for show.

The question to me is whether the Prez considers it politically advantageous to force a confrontation. The risk is being proven a lame duck. But the thought of crushing the Senate Dems, cowing the pesky GOP moderates, and appointing a strong conservative to the SCOTUS must be pretty tantalizing--it'd revitalize the administration.
7.1.2005 3:09pm
AD12 (mail):
Planned Parenthood is already protesting in front of the SCOTUS building.
7.1.2005 3:12pm
Tumbling Dice (mail):
It's funny to read those who think it is somehow on Bush to nominate a moderate conservative in order to avoid a confirmation fight.

Let's not forget which party it is that decided to make Supreme Court confirmations nasty and subject to a ideological litmus test. There is a reason it's called "Borking" a nomination and not "Ginsburging" one. I would suggest that Ginsburg is one of the most liberal justices ever to serve, and she replaced someone who was much closer to the middle of the road. I believe she was a prominent ACLU attorney. In other words, if Republicans had thought it was their role to subject these nominations to an ideology litmus test, this would have been the one.

Wasn't she confirmed on the order of 97-3?

The only question for the Senate should be whether the nominee is a competent legal mind capable of doing the job.

However, the minority party refuses to play by any rules. And thus, no matter who is nominated, there will be a nasty fight.

Which is why I agree that Bush should pick a conservative, a young one, in the mold of a Rehnquist, Scalia, or Thomas rather than a moderate conservative like O'Connor, Alberto Gonzales, etc.
7.1.2005 3:13pm
Justin (mail):
Let's make this FUN.....

7.1.2005 3:23pm
Justin (mail):
Dice, that's because Ginsberg was chosen as a consensus nominee. She was actually Hatch's idea to Clinton.
7.1.2005 3:23pm
And Scalia was confirmed nem. con.
7.1.2005 3:29pm
Ed Guest:
"Al Gonzales will probably be nominated, which will likely pull the court further to the left."

Gonzales pull the court to the left? HAHAHAHAHAHAHAHAAHAHAHAHAHA...

7.1.2005 3:32pm
Mahan Atma (mail):
"Let's not forget which party it is that decided to make Supreme Court confirmations nasty and subject to a ideological litmus test."

Oh, you mean Nixon? I guess you weren't alive when Fortas was forced out.

"I would suggest that Ginsburg is one of the most liberal justices ever to serve..."

You've got to be kidding me... Compared to Douglas, Marshall practically Brennan, she's practically a jackbooted Nazi.
7.1.2005 3:37pm
GMUSL 1L (mail):
I would love Kozinksi, Posner, and Janice on the Court.

Alas, they're too unreliably conservative (and posner's considered too old), but I'd also love Easterbrook. Alito's phenomenal too -- he has a very good judicial temperment and is extremely personable.

The others on the "short list" don't really do much for me. I saw Edith Jones speak in the fall, and she made me feel like a liberal, which was not a fun feeling.
7.1.2005 3:38pm
Ed Guest:
"A young, conservative, female lawyer is required, so why not the obvious choice: Ann Coulter. Then just sit back and watch the fun."

Great comment b/c after all this is just a game, right? I think Ann is too busy with her neo-nazi activities to take time out for the court. Although the opportunity to do away with the Bill of Rights and hurt as many people as possible would certainly be tempting for her.
7.1.2005 3:38pm
anonymous coward:
But Bush could heal the nation with Alberto Gonzales' nomination. Seldom do Left and Right speak with one voice as in their hatred of the idea of Gonzales on the SCOTUS.
7.1.2005 3:40pm
Ed Guest:
Why do you assume that your political opponents will be so unethical as to oppose anyone put forward by Bush, no matter how sane?

B/c as a he is a republican, he knows that is what his party has always done and would do again in this case if the show were on the other foot.
7.1.2005 3:41pm
Geoff (mail):
This argument presupposes first that the Bush Administration has any interest in seeking a potentially mutually agreeable candidate, and then that dialogue with Democratic senators wouldn't produce anything other than a bitterly divided confirmation battle. I think both of these assertions are incorrect.

Whatever you think of the politics at hand, I don't think there's much in the administration's MO to suggest that it seeks consensus. If anything, it seems to prefer to emphasize the split between the parties' philosophies as a strategic decision, by picking candidates it knows will be fought hard and then winning battles. Compromise isn't really a consideration (see John Bolton; there are I think unarguably other equally if not better candidates qualified for the post in the country; Bolton was picked to make a point).

Furthermore, I think there is still room for dialogue in Congress, divided as it is. Again, whether you liked or disliked the nuclear option compromise, it showed that people still had the ability to speak and agree with members of the opposite party. The Democrats are decidedly aware that they won't get a "perfect" nominee this time around, and are therefore probably willing to talk about the possibility of a consensus nominee.

Therefore, stating that Bush should nominate whomever he wants strikes me more as an ex post facto justification for what is likely the choice already than a real argument.
7.1.2005 3:44pm
DJ (mail):
Hey, Ed Guest, this isn't dailykos. Try to have some manners here.

There's something to be said, I think, for anonymous coward's point. If the Bushies wants to start a campaign a triangulating second term, a Gonzalez nomination would be a good start. I doubt Bush and Rove have any intention, however, of embracing the middle way.
7.1.2005 3:45pm
Ed Guest:
I am on my best behavior.
7.1.2005 3:47pm
Paul Gowder (mail):
Does Karl Rove have a law degree?

Oooh, or HR Halderman. Does he have one? Erlichmann?
7.1.2005 3:47pm
Jeff R.:
How about John McCain? Kick him upstairs and out of close Senate votes, the '08 election, and the spotlight all at once. Meanwhile, he has a ton of support in the Senate, but on issues of the sort that the SC has to rule on, he's pretty solidly conservative except in that case of campaign finance reform, where he'd have to recuse himself and be a wash there, too.
7.1.2005 3:51pm
alkali (mail):
As a flaming lefty, my personal rule of thumb is that if a judge is demonstrably capable of being outraged at the conduct of a police officer or prison guard in circumstances involving a person guilty of a crime, then that's a judge I can probably live with on the Supreme Court. I've seen opinions by Posner and Kozinski that clearly pass that test; I'm sure that there are many other conservative judges who could also pass.
7.1.2005 3:52pm
Michelle Dulak Thomson (mail):
Posner would be a blast, obviously, but no chance. I don't really think his age would enter into it, because the dude's already demonstrated his ability to do five times the work of an ordinary human being without breaking a sweat. The trouble is that he's pissed off nearly everybody at some point.

My own bet's McConnell, but it's just a wild guess. I don't know enough about Garza to know whether he'd be a serious contender, but as for Gonzales, I'd be surprised if Bush wanted the whole torture-memo business kicking around for a few more months.
7.1.2005 3:52pm
Matt Barr (mail) (www):
Todd, you're right, it will be ugly, and there is no reason from the administration's standpoint to pick someone more "moderate" in hopes of avoiding the worst parts of the fight.

There is one (and maybe only one) potential conservative nominee who would be a sympathetic figure in the face of attacks and whose nomination could turn the attention paying public against opponents: Ted Olson.

September 11 would dominate press coverage of the confirmation process, his composure in interviews and such after that day show a bunch of partisan hectoring isn't going to faze him, he would delight Bush's base and he frankly might confound opponents who find themselves facing a backlash for attacking him.

Just a thought.
7.1.2005 4:08pm
Paul: Why do you assume that your political opponents will be so unethical as to oppose anyone put forward by Bush, no matter how sane?

Maybe it's all the news stories that have run for the past several months about how left-wing groups (PFAW, etc.) are collecting millions of dollars and gearing up "war rooms" to oppose Bush's nomination (whatever the circumstances).
7.1.2005 4:11pm
DJ (mail):
From what I've read (and I have absolutely no inside information), the Administration is not seriously considering McConnell. I think they've decided that he's just a bit too unpredictable.

And, I think it should be stressed, what conservatives and this Administration want is predictability. Too many burns (O'Connor, Kennedy, Souter) means that conservatives will expect no less than a nominee who, as Bush himself has said in the past, is in the mold of Thomas and Scalia.

So the trick for the Administration now is to name a predictable conservative who will not alienate moderate Republicans or trigger a filibuster. This was relatively easy for Rehnquist--what's the harm in replacing one conservative with another? But that's much, much harder with the swingiest of swingers, O'Connor.

The Bush folks have been preparing for this for years, and, for what it's worth, I think they've packed an acceptable and nondescript woman or two on the circuit courts for this very occasion. I wouldn't be surprised if we see Sykes or Clement or someone else we don't know about picked.

I would be surprised if we see Miguel Estrada named...and greatly pleased. I'm assuming he's not getting any consideration at all. I wonder why?
7.1.2005 4:13pm
I don't understand why TZ and many of the conservative commentators assume that Dems will fight to block any nominee, even a moderate. Yes, progressive groups have set up "war rooms" to prepare for a brutal nomination fight, but its happened in anticipation of a hardcore conservative nominee. I think that's a realistic thing to expect, given this administration's aversion to working across party lines (even most of my Republican friends have gotten fed up with it and think that Bush should work with Dems more.) Dems realize their minority status and would gladly vote for a moderate like Kozinski, Posner, Duncan (Fourth Circuit African American Female Bush II appointee), etc. But, surprise surprise, none of them are on the short list, which itself says a lot about this administration. The only potential moderate seems to be Gonzales, who wrote the torture memo and was grossly negligent in giving legal advice on executions to Bush when he was gov.

Heck, I suspect even Luttig could get enough Dem support to get through without an all-out war: yes, he's conservative, but he's very principled (and has come out on the "liberal" side of a number of cases as a result of sticking to his principles in interpretating the law) and undeniably well-qualified. Most Dems aren't asking for the world, we'd just like a spot at the table (like Clinton gave to Hatch when Ginsburg was nominated.) When Clinton had openings, he didn't nominate a Reinhardt, he picked Ginsburg and Breyer. 90% of Bush's short list are conservative equivalents of Reinhardt. If he picked a conservative equiavalent of Ginsburg or Breyer (ie, a Posner), I think the vast majority of Dems (or, at the absolute least, enough Dem Senators to make the vote 80-20), would not have a problem supporting that persons confirmation.
7.1.2005 4:44pm
Anyone who will interpret the Constitution strictly and narrowly is fine, and not override the legislature unless something is an obvious abuse (the recent Takings Clause comes to mind).
7.1.2005 4:47pm
WAmom (mail):
Just saw Eugene on Fox Studio B. Very impressive.
7.1.2005 4:55pm
Bob Woolley:
Volokh for Supreme Court. (In drag, if need be. going by "Eugenia.")

OK, I started the rally, now everybody else will have to carry it.
7.1.2005 5:08pm
Scott Moss (mail) (www):
Even if the firestorm will be just as hot no matter whom Bush appoints, there still is good reason for him to choose a more moderate candidate. If he chooses a moderate, the left can scream all it wants (like Kennedy attacking Souter in 1990 -- which persuaded nobody in the Senate), but it won't convince any Republicans (e.g., the Maine women and Specter), or even a few conservative Democrats (e.g., Nelson of Nebr or Salazar of Colo, or some others among "the 14" who cut the deal on the filibuster).

Of course, I'm under no delusion that Bush will appoint a moderate. It'll be someone like Luttig or Janice Rogers Brown, or perhaps because it's O'Connor's seat (rather than Rehnquist's) they'll find a strongly conservative woman who hasn't been on the short lists. Remember, Republicans are in favor of affirmative action when it comes to Supreme Court seats (e.g., O'Connor '81; Thomas '91).
7.1.2005 5:25pm
Paul Gowder (mail):
I suppose Bush could always exhume Justice Taney, have DARPA whip up some cybernetic stuff, give a $999999x1099999 contract to Haliburton to subcontract for 50 bucks to Microsoft to write the software to allow Karl Rove to remotely control... Robo-Justice!
7.1.2005 6:00pm
Perseus (mail):
The Republican base would scream betrayal--and rightfully so--if Bush nominates someone too "moderate." The last thing the Republicans need is to have a significant portion of the base stay home during 2006 midterm elections.
7.1.2005 6:21pm
Daniel Chapman (mail):
Careful, Paul... you'll give DemocraticUnderground ideas...

Why is it that in this entire conversation on conservative/liberal judges, no one has once mentioned originalism? I really don't care what a judge thinks about abortion personally as long as (s)he is committed to applying the law as it's written and as it was intended instead of re-writing it to conform to majority (or even minority) whims. This is the goal Bush has reiterated countless times whenever he's asked about potential nominations.

The whole conservative/liberal thing is really secondary... if we're debating personal ideologies, then originalists have already lost the battle.

Now... I can't say I'm familiar with Gonzalez' decisions... personal liberal/moderate views aside, can anyone tell me how reliably ORIGINALIST he is?
7.1.2005 6:28pm
Robert Schwartz (mail):
President Bush campaigned on the promise of appointing SCOTUS justices like Thomas and Scalia. I believe to be a man of his word, and that he will make a good appointment who will be a true conservative. My only hope is that Teddy Kennedy gets so appoplectic that he has a CVA.
7.1.2005 6:51pm
Paul Gowder (mail):
Daniel, I like that idea! ;-) Hey DemocraticUnderground! You reading! Any protectible elements of my RoboJustice conception are hereby in the public domain! Go to it!
7.1.2005 7:18pm
Wince and Nod (mail) (www):

You are killing me! One small suggestion, and the idea will take off, both at Haliburton and DU - save the 50 bucks and go with a Linux based solution - 'cause it would be too bad if RoboJustice caught a virus!

7.1.2005 7:39pm
Adam (mail) (www):
As one of the more liberal regulars here, I am happy to stand behind a Kozinski/Posner/Easterbunny nomination. Anyone else suggests that factors other than judicial brilliance and intellectual heft are at play here.
7.1.2005 8:05pm
CharleyCarp (mail):
The claim that it will be nasty no matter what, so the Pres may as well go extreme is self-indulgent and childish.

It ignores completely the question of degree -- of course how tough the battle is will depend on who the nominee is. We've seen that in the fights over Circuit judges, and in the past over SC judges.

It's also a cover for the simple truth that the Pres has political reasons for maximizing the fight, and then blaming Dems for forcing him -- by their unreasoning recalcitrance -- to push for the most conservative nominee he could get.

The nominee will be chosen for ability to polarize. Look for a Southerner, maybe someone born-again.

Re: Souter, we now know that Sen. Kennedy was wrong about Justice Souter, and I bet he'd be the first to admit it. On second thought, John Sununu would probably be the first to admit that he was wrong about Souter.
7.1.2005 8:26pm
Paul Deignan (mail) (www):
If Bush were to nominate Gonzales, he would lose 3-8% of his base for the rest of the term. This would not just be for Bush, but for the GOP overall.

The precentages I mentioned were the extra turnout of values voters that were missing in 2000, 1996, and 1992. These are the people who rank Bush high for integrity and have been his consistent supporters throughout his tenure. I do not think that Bush II will make the error of Bush I, "Read my hips". Bush II promised a conservative (like Scalia) and also to put in a Hispanic. That points to one or two people, Garza or Estrada.

Note that Bush promised to actually put a Hispanic on the bench. That means he will fight to get this person confirmed. Expect the GOP in the Senate to grow more of a spine than what we have seen in the past. There is no sense in losing a winning hand. Their seats depend on it, esp those of Graham, McCain, and DeWine.

McCain could win big by taking a leadership role in ushering through the nominee. If he sits back, it does nim no good. His reputation is a stake.

The Dems will filibuster and the nuke option will be launched. If managed well, the Dems should lose 2% or more of their support due to their extremism over the abortion issue.
7.1.2005 9:00pm
SupremacyClaus (mail):
Where is the evidence that the nomination of any lawyer will make the slightest difference? These earnest discussions look ridiculous to the public. It has yet to have any impact in 200 years. No nominee is likely to break criminal cult enterprise orthodoxy, depart from faith in supernatural beliefs, resist crass rent-seeking and welfare job creation.

One of the advantages of having a group decision is that, it enhances the likelihood of coming up with a correct decision. One requirement for this advantage is that the members of the group be diverse. This means that the ages, sex, national origin, and yes, occupation must have some diversity. For example, someone with training in an empirical science, even a social science, would revolutionize the Court. The error rate would likely decrease. Respect would increase. Gaining respect for the Court is an affirmative duty, to not jeopardize an essential utility product, the rule of law. At the very least, a non-lawyer would demand that decision be written in ordinary English for the proper understanding by the owners, the public. Someone would inform the eminent jurists, you cannot foresee the future. You can, with the accuracy of predicting the 6 numbers of the Powerball Lotto. That means all of negligence torts violates the due process rights of defendants.

The jurists could learn, to their surprise, one cannot read the mind of a criminal. Half the time, even the criminal has no explantion, or even recall of the crime, being dead drunk at the time. There is no evidence that requiring a mens rea will achieve any goal of criminal law. Furthermore, it comes from Church doctrine, and is illegal in this secular nation.

It goes on, for every subject area of law, utter failure of goals, illogic, inexplicable wackiness and arbitrariness, catastrophic effects on the economy and the safety of our besieged nation.

The only explanation for these failures by people with good native intelligence? It has to be intentional, for the rent seeking and the land piracy. A conflict of interest criminal is just slicker and smarter than the bank robber, also more successful and far wealthier. How many bank robbers own a fleet of Gulfstreams?
7.1.2005 10:34pm
John Kleebourg (mail):
Paul Gowder:

Some "unknown Federalist Society hack"? That is a profoudnly ignorant statement. I attended a Federalist Society debate between Hadley Arkes and William Eskridge, moderated by federal district court judge (Preska, who is left-liberal), which was outstanding. Liberal students from Columbia were there and asked cogent questions. Older conservative lawyers asked right-leaning questions. Both Arkes and Eskridge are well-regarded scholars, one on the right, the other on the left, and gave erudite and principled responses from their divergent perspectives. The debate was not virulent conservative bile. Rather, it was the tolerant kind of dialectic one would expect in academia. Indeed, it was held at the Cornell Club.

On the other hand, I attended an American Constitution Society meeting where Guido Calabresi spoke. His speech was wonderful. But the questions were all nasty and of the "How can we lawfully exterminate the Republicans?" variety. I'm not a Republican, but the bias and unprofessionalism was outrageous. These aren't the kinds of questions you ask of a federal appellate judge.

So: I'm not sure what you mean by "a Federal Society hack." Many of the attendees of their debates are liberals, many of their panelist speakers are liberals, many of the participants in their Contintuing Legal Education courses are liberals, and many of their debate moderators are liberals. It is not a liberal organization, but liberals are welcome: it's open to ideas. I don't see how being a member of a debate society that is open to ideas makes you a hack.
7.2.2005 12:21am
Daniel Chapman (mail):
As you probably already know, Paul (Unless you're being willfully ignorant... since you obviously have a native intelligence so it must be intentional?), voluntary intoxication IS a mens rea, and if a criminal could show that he wasn't aware or had no memory of the crime, that's a defense to intentional crimes.

We have mens rea requirements because criminal sanctions aren't meant to punish unintentional actions in most instances. That's what tort law is for. I don't know what you're talking about it stemming from "church doctrine," but it would be irrelevant even if it were true. Are you actually saying criminal law would be BETTER without mens rea requirements?
7.2.2005 12:24am
Daniel Chapman (mail):
I'm sorry... I don't know why I thought "paul" when I meant "supremacyclaus." Must have been intentional :)
7.2.2005 12:26am
SupremacyClaus (mail):
Daniel: That is correct. The lawyer has it backwards. I guess anyone can make a simple error. Strict liability should apply to criminal law, including capital crimes, legality to torts. This would be true if the goals of these subjects were not lies, and masking ideology for rent seeking. If you wanted to keep people safe from crime, and to improve product safety, that reversal would be logical. Burdens of proof are supernatural gibberish. When you say weight of the evidence, what is the unit of weight of the evidence, a heaviness, a percent chance of being right once out of many times? Lawyer weights that send people to their deaths have no earthly reality. The lawyer trades and manages the supernatural. This is not only ridiculous and stupid, this is illegal in this country.

Of course, you do not know what I am talking about. Certified genius lawyers, experts in the First Amendment Establishment Clause, authors of the leading text on that subject, do not know this basic information about the Scholasticist origins of American law, learned in 10th grade high school world history, or college freshman class Western Civ 101. Why does an average high school student know this, and lawyers at the top of lawyer academia do not? High school education has been eradicated by lawyer criminal cult enterprise indoctrination.
7.2.2005 2:09am
Daniel Chapman (mail):
Well it's a shame you're not the supreme judge of right and wrong so you could set all those juries right then :)

Please save us from the criminal cult enterprise of the law!

(pardon the sarcasm... I know it's the last resort of a man who's given up rational argument, but I think rational argument would be useless at this point. We'll just have to disagree on whether mens rea and burden of proof requirements are a good thing.)
7.2.2005 11:07am
Paul Gowder (mail):
Daniel! I'm not what that says about the coherence of my comments... :-)
7.2.2005 11:12am
Paul Gowder (mail):
You know, it occurs to me, if Bush exhumes Taney and Robo-Justicizes him, there might not have to be a confirmation fight. Does appointment for life include being re-animated into a cyborg monstrosity?
7.2.2005 11:15am
Paul Gowder (mail):
Of course, if you guys do RoboJustice Taney, you might regret it when our guys get back in office and bring the entire Warren Court back...
7.2.2005 11:16am
David M. Nieporent (www):
Dem writes: I don't understand why TZ and many of the conservative commentators assume that Dems will fight to block any nominee, even a moderate.

Three words: Roe. Versus. Wade.

Unless one is from the New York Times school of analysis which defines moderate as "agrees with us, particularly on abortion," the answer to your question is that regardless of how "moderate" the judge is deemed by the cognoscenti, he or she is likely to be anti-Roe. And hence, is going to be portrayed as "far right-wing ideologue" by the Nan Aron/Ralph Neas crowd. (Go look at the language already up on NOW's home page about "Saving the Court.")

As someone here on Volokh -- I forget which Conspirator -- reminded us recently -- even people like John Roberts who are generally deemed moderates were portrayed as extremists by the PFAWs out there before their nominations. There is simply nobody who's right of center who could be appointed to replace a crucial swing vote like SDOC who will not be portrayed as such.
7.2.2005 12:02pm
NickM (mail) (www):
I have come to the conclusion that President Bush, as much as I would like to see him appoint Judge Kozinski, Posner, or Easterbrook to the Court, should take Harry Reid up on his statement that 4 GOP Senators would be acceptable choices, and nominate Senator Michael Crapo for the Court.

I believe the personal dynamic of nominating a colleague, especially since Senator Crapo is not known for inflammatory public statements, would lead most Democrat Senators to not fight against his confirmation (and if they did fight, Harry Reid would look in the national press like a man who could not lead his caucus).

The policy consequences to the Democrats from a successful fight would be very great - Senator Crapo is fairly young and occupies one of the safest seats in the country, so he would be highly motivated to exact retribution on the legislation and nominations (assuming a future Democrat President) of the Democrats who opposed him. In a body where scheduling often requires unanimous consent, a personal slight of that nature would be repaid in abundance.

From the politics of the appointment, there is a GOP Governor to choose the replacement and a deep GOP bench in that state who would have no trouble winning election in their own right.

As for qualifications, Senator Crapo graduated cum laude from Harvard Law, clerked for Judge James Carter of the Ninth Circuit, and then practiced for a year at Gibson, Dunn &Crutcher before returning to Idaho, where he joined and eventually became a partner in one of Idaho's larger firms. He was elected to the Idaho State Senate in 1984, and became Senate President Pro Tem 4 years later. In 1992, he was elected to the House of Representatives, and in 1998 to the U.S. Senate. In 2004, he was reelected without major party opposition to the Senate. He has served as a Deputy Whip in both the House and Senate.

Senator Crapo is politically regarded as solidly conservative, although he has opposed every large trade agreement (NAFTA, GATT, and now CAFTA), which is not uncommon in ID Congressmen.

When the opposition signals that they will not fight against someone, from a group of possible choices, who is clearly and solidly acceptable to you, it is normally the smart political move to take them up on it. PFAW, Alliance for Justice, etc. will still oppose him vigorously, but if the Senate confirms him by a margin in Souter/Breyer/Ginsburg territory (less than 10 "no" votes), those groups will become marginalized for all future debate.

7.2.2005 1:32pm
Paul Gowder: I don't know where you get the idea that conservatives, Republicans, or President Bush have any great affection for Justice Taney. They don't.
7.2.2005 2:27pm
Nick makes some great points, Bush could avoid a big fight and get a conservative by nominating Crapo. Unfortunately I worry that the Bush administration might prefer a big fight, even though it could nominate a solid conservative without one. I fear that they want all or nothing--that they don't just want a solid conservative, they want the most conservative person they can find. I think that preference is also driving TZ and David's ridiculous claim that there will be a huge fight no matter who is nominated. As Nick notes, Reid has already publicly listed a handful of Republican Senators that Dems would support and Reid would certainly support a moderate conservative circuit judge for the nomination as well. It borders on delusional to say that "Democrats will fight anyone" when the Senate minority leader has already publicly listed a handful of potential nominees as examples of who would be acceptable.

There's a good reason that Dems will support a mainstream republican (even one who might vote against Roe): we aren't idiots. We realize that republicans control the senate and presidency and that they can get pretty much anyone they want through if they just stick together and ignore us (which seems to be their standard operating procedure, despite Bush's 2000 campaign meme of working across party lines.) Even if Dems could fillibuster one nominee and withstand the nuclear option, there's no way we could fillibuster two. If enough Senate Republicans can be convinced that they should vote for an extreme right wing nominee despite the potential political downside (see, e.g., Bush's recent poll numbers and the SUSA poll of senate favorability ratings for examples of how the Republican's aversion to bi-partisanship is hurting them), they'll get confirmed. For these reasons, if Republicans consult Dems and agree to pick a mainstream conservative, Senate Dems will vote yes (at least the vast majority of them), even if the nominee is pretty conservative. This is what Hatch and the Republicans did after Clinton agreed to nominate a more moderate liberal instead of his ideal picks. As Reid's statement re: Crapo shows, Bush could still nominate a solid conservative and win Democratic support in the Senate. BUT, if Bush doesn't consult with Democrats as Clinton did with Hatch and he nominates a hardline conservative, Democrats will fight vigorously to put political pressure on moderate Republicans (since, as the minority party, that's all the power we have.)

And, by the way, if you haven't seen the polls, most Americans don't want a far right Justice on the court. Republicans can argue "we won the election, so we can pick whoever we want" and that's true as far as it goes. But, that's the sort of thinking that leads a party to lose down the line. Yes, Bush can nominate an extreme candidate who is outside the mainstream if he wants because Republicans did win in 2004. But, if he doesnt, Democrats will put political pressure on to (a) derail the nomination by appealing to moderate republicans and (b) publicize his decision to pander to the religious right to drive the public's approval rating for Republicans even lower. On the other hand, Bush can nominate a mainstream conservative, have the confirmation go through easily and enjoy a 5-10 point bounce in his party's sagging poll numbers. It's his call.
7.2.2005 10:21pm
Daniel Chapman (mail):
Of course "most americans" say they don't want a "far right" justice on the court. How silly a question can you ask?

Now ask them if they want a judge who will interpret the laws according to their written text and original meaning rather than the perceived wishes of the majority of the public and they overwhelmingly say they support that too.

Yet PFAW and NOW will go out of their way to portray any judge in the 2nd class as a member of the 1st class. It's a catch 22. Bush will give us another originalist... I have faith in that. There will be a huge confirmation battle... I have no doubt about that either. It's not about appointing someone "as conservative as he can get." WHOEVER he appoints will be a "far right wing extremist." I'd almost like to see him appoint Crapo just to see Reid turn a 180 without blinking. EXTREMIST!!!
7.3.2005 12:36am
DC: Your statement that Reid would "turn a 180" on Crapo is almost not worth replying to. Do you honestly believe he would have listed off names of acceptable Republicans if he wasn't actually prepared to support them? He'd have to be the dumbest politician in the world. Do you really distrust progressives that much? If so, why? Yes, NOW will likely oppose any nominee it thinks will overturn Roe, but that doesn't mean Senate Democrats aren't willing to vote yes for a mainstream conservative. In fact, Democrats will almost surely support any mainstream conservative for all the reasons I mentioned in my above post and as evidenced by Reid's statements and actions to this date. If Bush is willing to give Democrats minor concessions (along the lines of what Clinton gave Hatch), then they will vote to confirm his nominee. Why? Because that's the best we can hope to get (which is the same reason Republicans voted to confirm Clinton's nominees.)

Why don't you just admit that you'd like a very conservative Justice in the mode of Thomas or Scalia and would be willing to fight for one instead of choosing a slightly less conservative nominee (like Crapo) and having a smooth confirmation hearing? It's a completely defensible position, and one I'd respect. But to argue that there's no reason to compromise because those terrible Democrats will fight no matter who is picked (even if it's someone who they've already said they'd support, because they are liars who are incapable of bargaining in good faith) just doesn't conform with reality.

BTW--As for what most americans want in a Justice... I'll concede your point about public opinion polls. My example was not the best way to make my point, which is this: most Americans would like someone like O'Conner rather than someone like Owen (and the same would be true on my end: the public would prefer a Breyer to a Brennan [and I say this as a man who thinks Brennan was an amazing Justice.]) If Clinton had nominated Reinhardt to the Court in 1993, I wouldn't have expected a single Republican vote to confirm and wouldn't have been surprised if the Republicans did everything they could to block him. Most of the people on Bush's short list are conservative versions of Reinhardt... if he's willing to nominate a conservative version of Breyer, Dems will go along. If not, don't be surprised if they will do whatever they can to block it.
7.3.2005 2:24am
Perseus (mail):
Bush is a lame duck, so why should he care all that much about public opinion polls on this matter? (As if public opinion polls should guide his choice in any case.) It's about his legacy at this point and therefore he needs to be very careful that he doesn't make the mistake that Republican presidents all too often make in nominating people whose views "grow" (i.e. become more liberal) over time.
7.3.2005 3:31am
David M. Nieporent (www):
Dem: I agree that it's crazy to suggest that Reid would "turn a 180" on Crapo -- but Reid mentioned these guys only because he knew they weren't legitimate candidates. Earl Warren notwithstanding, who on earth thinks it's a good idea to make someone who has never spent a day in his life as a judge a Supreme Court justice?

Yes, NOW will likely oppose any nominee it thinks will overturn Roe, but that doesn't mean Senate Democrats aren't willing to vote yes for a mainstream conservative.

You're playing fast and loose with terminology again. Of course they'll support a "mainstream conservative"... as soon as you can convince Nan Aron et al. that such a creature even exists. It doesn't matter how "mainstream" such a person is; if he or she opposes abortion, he or she will become a "right wing extremist who hates women."

You keep acting as if "right wing" and "mainstream" and such are objective categories, rather than partisan labels. Look at Roberts, or Owen, or McConnell, for that matter.
7.3.2005 5:31am
Daniel Chapman (mail):
I'd like a conservative justice in the model of Thomas or Rehnquist. Scalia likes to talk about originalism when he's dissenting, but if he can get away with putting his own politics into a majority, originalism goes out the window. (see Raich)

As for Reid, my comment was hyperbole, but I really would half expect it. There are a LOT of big money liberal organizations who will oppose anyone. There is already talk of how "If we can kill a bush SC nominee, he'll be a lame duck for the rest of the term!" Ideology doesn't even matter... it's all politics! Yeah I think Reid would cave under the interest group pressure, but hopefully we'll never know.

Either way... sorry about the over-the-top comment. Doesn't contribute much to this board.
7.3.2005 10:11am
DN: 'It doesn't matter how "mainstream" such a person is; if he or she opposes abortion, he or she will become a "right wing extremist who hates women."' I think this would be true if the Dems controlled the Senate or had 48 or 49 Senators but they can count votes and, right now, they don't have the leverage to oppose someone just on that issue or to realistically shoot for someone as moderate as O'Conner to be appointed. The best they can hope for is a "mainstream conservative" which, I admit, is a very general term but, as I've said in past posts, I'm using this term to refer to someone who is like a conservative version of Breyer. Dems would gladly make a deal to support someone like that because the alternative is a conservative version of Reinhardt. They probably can't stop a hardline conservative from getting confirmed, but they can fight hard against the nomination to further sink the R's poll #'s (Note to Perseus: yes, Bush isn't running again, but most of the GOP Senators are, some in 2006) and hurt the rest of the Bush agenda. If there is a protracted fight, there is no doubt that it will negatively impact Bush's legislative priorities (if for no other reason than taking time off the calander.) The choice of what to do is Bush's (and, frankly, since he's not likely to get social security passed anyway, if I was him I'd probably choose to use my remaining political capital [such as it is with a 43% approval] on an ultra conservative nominee rather than on legislation.) All I'm saying is that it's his choice and, given the Dems weak position in the Senate, he could probably make a deal for smooth confirmation of a pretty solid conservative, just not someone as conservative as most of the people on the short list. In other words, "the Democrats will oppose anyone we nominate" might be a useful Republican talking point to justify nominating an ultra-conservative, but it's certaintly not the truth and it ruffles my feathers to see people on here buy into it. It's the sort of statement and mind-set that makes honest discussion between opposing sides impossible. (BTW--I'm not accusing you of making that statement, and I appreciate your acknowledgement of the Crapo/Reid thing... just explaining why I'm so worked up on this.)

DC: I'm with you on Raich--I like Rehnquist on the commerce clause even though I'm a liberal. Thanks for acknowledging the over-the-top Reid thing, I'm sorry if I got a little over-the-top too. Also, FWIW, I personally would not be opposed to a number of the folks on the short list even if they are very very conservative (McConnell, Wilkinson, Luttig, as examples). I'd prefer a very intellectual, open-minded, principled conservative like Luttig to someone like Gonzales who, even if more "moderate," doesn't seem to have as much intellectual fire-power.
7.4.2005 1:37am
Perseus (mail):
Dem writes: "if I was him I'd probably choose to use my remaining political capital on an ultra conservative nominee rather than on legislation."

I agree (though not with the characterization 'ultra conservative'). And when playing the public opinion game, the base is far more important than the mushy middle when it comes to the SC.
7.4.2005 5:08pm
Perseus: Yes, but I should add this caveat: if I was a Republican Senator up for reelection in 2006, I would do everything I could to persuade Bush not to nominate someone who was far right. For Bush, there's no huge downside to picking a fight on this. Most of his top legislative priorities are polling under 45% and social security reform is completely dead. A big confirmation battle is one he can probably win and one that will take some attention away from his horrible Iraq mess, his legislative problems, and, if the early reports are accurate, potentially Karl Rove's indictment in the Plame affair. BUT, for Republican Senators who want to tack away from Bush and his unpopular agenda, a confirmation battle will only drag them down further in the polls. The vast majority of independant voters are fed up with the Republicans hard right approach and want them to start working with Dems and stop doing everything James Dobson asks them to. Republicans who have to worry about reelection (ie, everyone except for Bush) want very badly to have some prominent examples of bi-partisan cooperation they can sell to voters in 2006 or 2008. They'd love for Bush to nominate someone who is more mainstream so the party can look like its working across the isle.
7.4.2005 7:27pm