Since Orin and Eugene have re-upped the brilliant and talented Michael McConnell--who I agree would be an exceptional Justice--I will re-up Edith Jones and in the alternative, Alice Batchelder who I commented on some time ago. If the President seeks a woman, Jones remains the obviously correct choice in my book. Personally, I would be blissful with any of them, and many others as well.
While I'm at it, I figured I would go ahead and re-up this post on Judge Jones's decision in McCorvey v. Hill, where she concurred and discussed the state decisis and mootness problems spawned by Roe. If she ends up being nominated, I would encourage to you read what she actually wrote there which I think is more complicated and interesting that it has been described elsewhere.
If she wants to write an article or essay about Roe, and why it was badly decided and possibly no longer valid law, fine. I have no problems with judges doing so. (Cf. Posner's corpus.) But I think doing so in the context of a judicial opinion -- even a concurrence -- is an abuse of her position.
Oh, we know Bush doesn't want a fight; the question is, does he want his base?
I think Edith Jones would be filibustered
Do you think Edith Jones should be filibustered?
In my view, both Jones and Batchelder would be fine selections. My first choice, though, remains Kozinski -- and it looks like I'm sailing that ship solo:)
Do you think Edith Jones should be filibustered?
It doesn't matter what I think, but yes I do. She is a judicial activist who will make law, not interpret it.
I was then overwhelmingly impressed by her knowledge and intelligence, both at oral argument and in the opinion that followed. In the years that have followed, I've seen few appellate judges with the same ability to think on their feet about really complex issues and the consequences that flow from legal decisions.
I'm politically distant from Jones on many issues, but my view has always been that the team that wins the election gets to pick the umpires. As far as qualifications go (the only thing that matters to me), Jones is 100% qualified. To me, she's not even a "female" pick -- she's as solidly qualified as any person of whatever genitalia on the federal bench.
Whether Jones should be filibustered depends in part on whether the compromise to prevent the nuclear option will hold. I think the nuclear option was based on terrible constitutional interpretation, i.e., that the Presiding Officer of the Senate can force a majority vote on a Senate Rule by disingenuously claiming that the rule is unconstitutional when it isn't. It would do great damage to the counter-majoritarian traditions of the Senate. And it would be especially bad because the Senate majority itself does not reflect a majority of the country, because the "red states" are overrepresented.
So I would not favor ANY filibuster that would result in the nuclear option being exercised.
On the merits, though, I think Edith Jones is likely to be a conservative judicial activist, i.e., to try to enact her conservative views into law whether or not the Constitution supports them or the proper case presents itself. If there is a way to block her, I would certainly prefer that she be blocked. In contrast, I think that McConnell will be conservative but not activist, and should be confirmed if nominated.
Sure, but is that a bad thing?
I don't think Bush is going intentionally provoke a nuclear-option battle over SCOTUS. That's why Owen, Brown, et al. are out of the running. But it would be great fun, and has a smallish but real chance of paying off for our increasingly-lame duck Prez.
But Batchelder is easier to confirm. She has voted to uphold laws protecting against partial-birth abortions and to strike down racial quotas, but the public agrees with her on those issues. She has not taken more far-reaching and controversial positions, like calling into question earlier-term abortions, or banning all affirmative action per se. She has decided cases on the narrowest possible grounds, avoiding judicial activism.
Perhaps Batchelder should be nominated. She could be confirmed.
Justices Maura Corrigan and Robert Young of the Michigan Supreme Court would be excellent choices, too, and Karen Williams of the Fourth Circuit would be OK.
All of the above choices would be qualified, and would appeal to Bush's desire for racial or gender diversity.
But why not? There is nothing stopping a state political majority from creating a test case by passing a law limiting abortion. That law could be supported by a substantial legislative record that includes the social scientific evidence that Jones refers to in her opinion. For that matter, such evidence could have been introduced in recent challenges to partial birth abortion statutes.
But all that talk about the factual record really isn't the issue. And your suggestion that Jones leaves open whether Roe should be overturned is hard to take seriously. Jones' opinion reads more like a merits brief challenging Roe, citing only the social scientific evidence produced in McCorvey's brief. It's true that Jones is cautious not to close the door on the possibility that there might be scientific evidence pointing in the other direction. But then, how could she not? It'd be rather embarassing to make conclusive scientific claims in a concurring opinion, only to be confronted by the very real possibility that there is no existing or emerging scientific consensus on these issues. At any rate, Jones' lack of impartiality in citing the factual development over the last few decades is not surprising. This was a not-so-thinly veiled attack on the central holdings of Roe and Casey. Given the tone of the opinion, it seems sort of silly to pretend otherwise.
This is why I favor the nomination of Justice Brown. Watching the Klu Klux Kleagle filibuster her would be even more entertaining than the Anita Hill fiasco.
Alice Batchelder would get through with at least 70 votes. Batchelder has a wealth of experience -- she has been a federal judge at both levels, for a combined 25 years, has authored more than 800 opinions, and is a powerful writer. Although she has a strong conservative record, she is a judicial minimalist if there ever was one.
This administration seems dead-set on appointing another Souter.
But weeks of headlines screaming about Roe being endangered by a right-wing Justice could re-energize liberals and some pro-abortion centrists. What Bush wants to do is make the base happy without enraging everyone else--see Roberts, Chief Justice John.
Ah well. Alito or McConnell would be great as well.
1) The Roberts' nomination was fantastic politically and otherwise. Bush is still sitting great on that. A good nomination here, and his legacy among conservatives could be alot better than most imagine.
2) The Jones' concurrence above is a very intriguing piece of writing as Professor Z suggests. It would be overly simplistic to dismiss as a piece of drivel that ignores stare decisis. It is a careful piece of writing, and embodies a sense of realism. Other members of the Court are often unwilling to display such candor when they chuck a line of cases out the window. See Griswold, Lawrence. Why not just fess up to the fact that social science or societal attitudes have necessitated a new consideration of an issue (See Brown)?
As to the link:
(Interesting article from someone who seems to know Judge Alice Batchelder)
If I wrote what Judge Batchelder attached her name to, I could have my law license suspended. She certainly does not deserve a promotion.
Assuming it is true, who was it? Boyce Martin? Eric Clay? There are, unfortunately, several judges on that circuit who do lie, and do so routinely. Martin rigged one of the most important con-law cases of the last 25 years, and his defense (to paraphrase Clay and Moore's concurrence in Grutter) was, "so what, we do that all the time." Several of them are simply out of control, and ignore precedent, revive long-dead ancient writs to give themselves unheard of powers (do a google search for "Clay" and "Moore" and "audita querela"), and yes, intentionally misrepresent facts in order to make their wacky opinions seem more reasonable. There is nothing wrong with calling a "spade" a "spade."
But with such language, she would fit right in on the Supreme Court
Be careful what you wish for.
Also, he rules against big business way too much. Moreover, it is a fact that he is not well-liked by many of his colleauges, and this could cause some concners of "judicial temperament." Finally, the guy is just not the kind of guy Bush would like --- Bush wouldn't understand his funny accent and would probably peg him for someone who would apply the dreaded furin lawr.
Like I said, calling a spade a spade.
The rhetoric Batchelder attached her name to would give the Democrats and liberal groups license to throw similar rhetoric back at her in a confirmation fight.
As to Cato's comment about "last few years of C.J. Martin's tenure," I think a more accurate description is that the conservatives couldn't accept that sometimes they would lose the vote on a big case. Instead of accepting defeat, they came up with excuses and dumped their sour grapes into court opinions.
During Grutter, Martin crossed Judge Stafford's name off the panel (which by ciruit rule is determined at random) and improperly inserted his own name. The actual sheet with the crossed-out name, by the way, still exists, and I am sure you could get a copy of it if you file a FOIA request.
Martin then refused to docket the case en banc, as required by the rules, but instead put a bunch of issues in front of the panel that he had improperly put himself on. Martin then refused to circulate the en banc petition to the members of the court, and refused to schedule the appeal for months while he waited for two conservative judges to take senior status. During that time the judges called his chambers on a nearly daily basis, and they sent him numerous emails, voice mails, faxes, and letters asking him what was going on. Martin never responded to any of this correspondence. He stalled for months and scheduled the en banc review just after the second judge took senior status and was no longer able to sit on the en banc panel.
Martin should thank his stars that he was not impeached. He certainly could have been. All of the necessary findings were already made by the circuit court during its subsequent investigation.
"Dumping sour grapes?" Call it that, if doing so makes you feel better. I, for one, am glad that Boggs has the guts to stand up to criticism from other judges and uninformed critics like you in order to expose the rank corruption on that circuit.
To be charitable, that was "simply wrong." The argument was occurring on September 11 (yes, THAT September 11). According to Judge Jones, the execution date was September 12.
Further, Judge Martin did not just speak "to some of his allies over the phone," he polled enough judges to get a majority for a stay.
I'll be more charitable than you by all this an "error" by you and Judge Boggs. But, by your definition of "lie," which conflates being wrong with intentionally telling a falsehood, you, Cato, are a "liar."
As to the Grutter case, Chief Judge Martin followed an established procedure to remove a non-Sixth Circuit judge from a panel. He then substituted himself, something he had done before without complaint. Judge Boggs claims that he personally did not know, but he does not contest his colleagues knew about it.
As the concurring opinions shows with devastating effect, Judge Martin held the initial en banc request until briefing was complete, as was the practice.
Initial en banc decisions are almost never granted. In fact, the panel had authority to deny it immediately. So the panel actually gave Judge Boggs et al. more of an opportunity to review the decision than the rules required.
Further, one of the judges that Boggs alleges was kept off the case illegitimately was already off the court when briefing was complete (when the initial en banc petition would have been circulated). The other judge left the court fifteen days after briefing was complete (by Boggs' calculation).
A fifteen-day delay is extremely common in appellate litigation. It is more of a hiccup than a delay. So even if the petition had been circulated quickly after the completion of briefing, the excluded judges still would have been excluded.
As to the "daily" phone calls and faxes, according to note 46 of Boggs' dissent, when a senior judge raised questions about the procedure, the en banc petition went to the full court nearly immediately.
As to the sanction, Judge Batchelder was on one side of a dispute, Judge Martin was on the other. Judge Batchelder had the authority to decide the sanction request. She didn't have the votes to win the case, but she had the unilateral power to punish the person who dared oppose her side.
But, back to the point of this thread. Both the Byrd and the Grutter matters show that Batchelder lacks the temperment to be a Supreme Court justice. She, like you, Cato, couldn't see the difference between an argument she disagreed with and a lie.
Batchelder had the opportunity to take the high road, as did her fellow Grutter dissenters Judge Siler and Judge Gilman, but she chose the low road. Batchelder chose to give every action of her opponent a sinister motive, when she had no evidence of the motive.
These are not signs of a judge worthy to sit on the US Supreme Court. They are the signs of sour grapes.
"It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness and brought forth, instead of a confined decision, an 'exercise of raw judicial power' (cites omitted). Even more ironic is that although mootness dictates that Ms. McCorvey has no 'live' legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe."
Read it a few times slowly. Am I crazy, or is she a terrific writer? The whole decision is terrific.
As to the unusual circumstances of this concurrence? I don't see the problem: it's dicta, no more, no less. She doesn't pretend that the fact that the "evidence she offered could have generated an important debate over factual premises that underlay Roe" allows the court review of the claim. Rather, as one poster suggested, it could be an invitation to a state legislature to draft a statute in contravention of Roe, on the basis that Roe is limited to the scientific evidence cited in 1973.
Some have suggested that, in writing this weird opinion, she threw in the towel. I don't think so. The main opinion is restrained, following the law to a T, while the concurrence makes clear that she would desperately like to review the claim. Translation: she is a staunch conservative, but also a committed non-activist. She says it all in this one opinion.
I'm hoping for Luttig, Jones, Alito, or Brown, but I'm actually praying for Jones, no kidding.
Sixth Circuit Lawyer should apply for a job writing screenplays for Michael Moore. Literally every factual assertion made in SCL's screed is incorrect and is a provable matter of public record. There was a full investigation of all of the Grutter nonsense, and it was quite clear that Martin violated numerous rules and purposely delayed the hearing for months until two judges took senior status. Suggesting otherwise only damages your own credibility.
None of this matters anyway. On Monday, Bush will name Alito. Then you can turn your attention toward making personal attacks on him and pretending you are Third Circuit Lawyer.
If I used Cato-the-Younger's definition of dishonesty (an argument that the speaker disagrees with), I would call you a "liar." But I won't sink to the level of Cato, Boggs, or Batchelder.
I agree with one thing you said--others can read the opinions and come to their own conclusions.
And no, I did not call you a "liar." I said that you were a "liar" under an unfair and incorrect definition of "lie." But it's a definition that Boggs and Batchelder shamefully adopted. I don't think you're a liar. I think you're wrong.
It's interesting that some conservatives can't distinquish between the qualities of a good judge and the qualities of an effective talk radio host.