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Who Would Bush Nominate If He Had Another SCOTUS Pick?:
Over at ConfirmThem, Jan Crawford Greenburg is doing a very interesting Q&A (part 1 here, part 2 here, part 3 coming soon) that includes the following:
Given the current political climate, who do you think President Bush will nominate to the Court if a third SCOTUS retirement occurs during his presidency?

Answer: Janice Rogers Brown or Maureen Mahoney. Now I know you're asking how in the world I could possibly mention those two very different contenders in one breath, right? Ok, here's why: It all depends on which justice leaves and when. President Bush will tap a solid judicial conservative (i.e., Brown) if he gets a nomination this year. He wants to change the subject, and this is about the only issue he's got left to rally the base. (If you guys can think of another issue that will keep conservatives together with Bush, let me know.) Judge Brown would be an exciting nominee: She's getting very high marks from colleagues on the D.C. Circuit, and her experience, compelling life story and demeanor (she's fast on her feet and would be a terrific witness) would present those moderate southern Democrats (there are still a few of them) with a very difficult choice. . . .

The closer we get to 2008, the better are Maureen Mahoney's odds, because she's a conservative who could get confirmed.
  Obviously Bush would be able to nominate whoever he wants if an opening occurred, so I take Greenburg's take to be her best guess of what would happen rather than who would necessarily be the smartest pick. Still, my own completely uninformed pet theory for who Bush might nominate if he has an opening is Senator John Cornyn.

  To be clear, I don't know enough about Cornyn's personal relationship with the President or his Senate colleagues to know if this is even a remote possibility. But from my outsider perspective it seems to me that Cornyn could be a very savvy pick. He's an undisputed conservative; he's a former state Supreme Court Justice with 13 years of experience as a judge and experience in all three branches of government; and he is someone who I gather would be relatively hard for the Senate to reject (as a Senator himself). If the President wants a confirmable solid conservative, Cornyn would seem to be a very good pick if a vacancy occurs.

  Of course, John Cornyn is a man, baby, and perhaps the President would not consider naming another man to the Court in the event of a vacancy. I don't see how the politics line up for such a judgment, but the President would of course be free to make that call. And if Supreme Conflict is a reliable guide, the President has a genuine commitment to gender diversity and would likely not want to nominate another man.
NickM (mail) (www):
Nominating Senator Michael Crapo might be his best choice if he wants a confirmation without much of a fight. Crapo was on Senator Harry Reid's list of suggested nominations for the last vacancy, even though Crapo's legislative record is conservative. [Speculation has been that Crapo's name was mentioned because he, like Reid, is a Mormon.]

A sitting senator with advance approval from the Majority Leader (in a seat where a GOP Governor picks the replacement) looks to be a very easy win for Bush.

Nick
2.28.2007 4:38pm
Steve:
I'm not sure Crapo's actual legal experience goes much beyond a few years as a trial lawyer, though. Cornyn was an honest-to-goodness State Supreme Court Justice. Prof. Kerr is probably correct that almost any Senator is going to be confirmable.
2.28.2007 4:44pm
frankcross (mail):
At this point in his term and with his popularity and the Senate makeup, I don't think anybody's confirmable. Maybe Mahoney. Cornyn's a Senator but too conservative for the Dems who visualize gaining the Presidency and the appointment opportunity.
2.28.2007 4:51pm
Witness (mail):
Isn't a substantial portion of Bush's "base" social conservatives who would disagree with JRB on quite a few things? Besides, is it really even about "rallying the base" at this point?
2.28.2007 4:56pm
PersonFromPorlock:
Heck, how about William Cohen of Maine: lawyer, Republican, former U.S. Senator, former Secretary of Defense in the Clinton administration and an absolutely perfect choice for Bush, given Bush's record to date.
2.28.2007 5:00pm
steve lubet (mail):
It would take only 40 Democrats to fillibuster any nomination (with no threat of the nuclear option, given Dem control of the senate), so the few Southern Democratic moderates won't have to worry about their votes. Hence, no one but a bona fide moderate will be confirmable this year or next.

[OK Comments: Steve, I don't think I see this. Imagine Stevens retires and Cornyn is nominated, and all attention is focused on the Supreme Court. Would 40 Senators really refuse to let their very own colleage have a vote? And would the public go along with a filibuster that keeps the Supreme Court at merely 8 members, unable decide any close cases thanks to the even number? I guess I find that pretty unlikely.]
2.28.2007 5:03pm
jvarisco (www):
I was under the impression that Bush was not nominating many libertarians, how does this fit with that?
2.28.2007 5:04pm
Duffy Pratt (mail):
If I were Bush, I would nominate Bill Clinton. It would force Clinton to shut his mouth during the Presidential race.
2.28.2007 5:10pm
alkali (mail) (www):
Nominating Cornyn would create a vacant Senate seat in Texas. How that seat would be filled -- and the likely replacement's prospects in the 2008 election, when Cornyn's term would be up, IIRC -- would clearly be an important consideration for the administration.
2.28.2007 5:11pm
Blindgambit:
I don't want to crack on the Cornyn pick, since he was on the TX court and served as an AG down there as well, but does his law school background play a role at all? I believe he attended a tier 4 school, and currently the SC is all Ivy Leagueish + Northwestern and UVA. I just wonder if it would open him to attacks from the left that his legal qualifications stemmed from politics and not legal heft. As opposed to folks like Roberts/Alito whose legal careers were portrayed as stemming from their legal knowledge.
2.28.2007 5:13pm
DaveN (mail):
Supreme Conflict suggested that President Bush wanted to appoint a Latino to the Court--and I suspect that even though there were those within the Bush White House opposing Alberto Gonzalez last time, he could be tapped THIS time.

I suspect he is confirmable (why would Democrats want to anger Latinos by beating up one of their own?) and is not viewed as an ideologue.

John Cornyn is not only a member of the United States Senate, he is also a member of the Senate Judiciary Committee where it is even less likely that the Committee would disapprove one of their own.

Regardless of who is picked, I suspect that there won't be a filibuster of any SCOTUS nominee. Whoever is chosen, though, I doubt we will see a judicial cypher like David Souter nominated.
2.28.2007 5:19pm
RS (mail):
Why is Judge Raggi on this list? Bush put her on the Second Circuit. She is extremely intelligent, and a thoughtful judge. And she is a former U.S. Attorney. I think she would be extremely confirmable. More importantly, I think she would make an excellent justice.
2.28.2007 5:20pm
Houston Lawyer:
I never paid much attention to Cornyn until he was elected to the Senate. He's an effective conservative spokesman.

If Cornyn resigned, there would be a special election to replace him. I believe that it would be one of those odd free-for-all nonpartisan elections similar to the one where the Governator was elected.

I have little doubt that Greg Abbott, the current Texas Attorney General would like a chance at that position. Regardless, there's not much chance of anyone other than a Republican winning a state-wide race in Texas.

I would like to see the fight if Ms. Brown was nominated. It would be the best since Clarence Thomas.
2.28.2007 5:21pm
Bobbie (mail):
Coryn was considered a poor Texas Supreme Court justice. In person, he's not very impressive. (Quite frankly, the man isn't that bright.)

Bush could do much better.
2.28.2007 5:34pm
Cliff:
Alberto Gonzalez will never be on the supreme court for one simple reason. He wrote a legal brief advocating and condoning torture. Neither republicans or democrats are ever going to let him forget that.

If he hadn't written that memo, then he would probably already be on the Supreme Court.
2.28.2007 5:35pm
Justice Fuller:
RS,

Raggi isn't mentioned because she hasn't written or said anything that has led anyone to think she is SCOTUS material.
2.28.2007 5:35pm
alkali (mail) (www):
Off topic: If two years from now, we have President Obama/Clinton/Edwards/Vilsack, has ConfirmThem.com reserved "Theyre-Not-Entitled-To-An-Up-Or-Down-Vote- And-Whatever-You-Do-Dont-ConfirmThem.com" just in case?
2.28.2007 5:35pm
Just an Observer:
When I read Greenburg's speculation about Janice Rogers Brown, I could not help recalling how Judge Brown recently advertised her deference to executive war powers, which Bush probably cares more about than most any other issue.
2.28.2007 5:37pm
Cornellian (mail):
Isn't Cornyn the guy who, when Judge Lefkow's husband was murdered, blamed the murderer's actions on judicial activism? (turned out the guy was a disgruntled litigant in a personal injury case).
2.28.2007 5:39pm
Ramza:
Only 22 comments on the confirmthem page in 2 days? It is just to show how discouraged conseratives grassroots are in general and with Bush. If a similar Q&A were posted in months prior to June 2005 (O'Connor tried to retire July 2005) or months after the Alito Confirmation (Jan 2006) there would be a 100+ comments. At this time they were hoping for a third retirement/death.
2.28.2007 5:40pm
Wahoowa:

I suspect [Alberto Gonzales] is confirmable (why would Democrats want to anger Latinos by beating up one of their own?)



Cf. Thomas, Clarence.
2.28.2007 5:44pm
JeremyR (mail):
There is no way he would nominate Brown. She's far too libertarian for him (and the Republican party in general, but especially him, who is a big-government type), not to mention, she has zero chance of getting confirmed.
2.28.2007 5:46pm
David Rogers (mail) (www):
Cornyn looks like a conservative judge, but he only plays one on TV. He is just awful. He was the fifth vote in a split decision to affirm the worst judicial activist decision in the history of the Texas Supreme Court, a school financing decision in which the Court affirmed that the word "efficient" in the state Constitution REQUIRED socialist redistribution resources. (look it up. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex.1995) , Cornyn upholds Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex.1989), the original "Robin Hood" decision in Texas. As a result, the Chairman of the Texas Republican Party called Cornyn a "liberal judge.")

Cornyn's OK in the Senate, and particularly good defending W's judicial nominees. But a lifetime appointment with no accoutability?

Souter.
2.28.2007 5:55pm
Cliff:
The Democrats would beat up on Alberto Gonzales cause he still believes that it's okay for our government to carry out torture.

You think they'd put a man like that on the supreme court?
2.28.2007 5:56pm
Cornellian (mail):
Only 22 comments on the confirmthem page in 2 days? It is just to show how discouraged conseratives grassroots are in general and with Bush. If a similar Q&A were posted in months prior to June 2005

Well to be fair to confirmthem.com, two years ago they had a wide open comment policy like VC. Today they have an annoying and intrusive registration process you have to go through to post comments. When they switched over, the comment stream was reduced to a trickle almost immediately, and never recovered. Probably a lesson for bloggers everywhere.
2.28.2007 6:21pm
Oren (mail):
If it happens in 2008, Leahy will stall until the election no matter what the nominee. (IMHO)
2.28.2007 6:22pm
Cornellian (mail):
If it happens in 2008, Leahy will stall until the election no matter what the nominee. (IMHO)


Unless the nominee IS Leahy, heh.

Seriously though, then the challege for Bush would be to come up with a superstar pick like Roberts so that the Republicans could make stalling the nomination an issue in the 2008 election.
2.28.2007 6:25pm
Just an Observer:
Only 22 comments on the confirmthem page in 2 days?

Confirmthem.com suffered a massive loss of commenters a few months ago after a software change that tied them into RedState.com. One now has to be registered in good standing at RedState to comment at Confirmthem.

I asked the RedState mods to kill my months-old login because I could not stomach the anti-intellectual goon tactics that threatened or killed logins if commenters did not pass an arbitrary litmus test for loyalty to The Party. The prevailing ethos was something like this: "The fact that you disagree with us on this issue is evidence that you are not competent to comment here, so you are expelled from the island for incompetence." It's their sandbox, and their echo chamber.

The mods at Confirmthem never displayed such tactics, but their site is tied into RedState's authentication.
2.28.2007 6:27pm
joseph (mail) (www):
I think if Bush nominated an ultra-conservative candidate, he will put Republicans in a win-win situation. If Dems stall out the nominee and won't allow a Senate vote, then Republicans can use it as an election year issue for both the Senatorial and Presidential elections. If he/she is confirmed, then conservatives get a friendly Supreme Court justice. Not a bad situation if Republicans play their cards right.
2.28.2007 6:38pm
Bobbie (mail):
Joseph, since most of the country isn't "ultra conservative," how would that win them votes?
2.28.2007 6:50pm
Don Miller (mail) (www):

[Speculation has been that Crapo's name was mentioned because he, like Reid, is a Mormon.]


Lifelong Idaho resident, multigenerational Mormon family , voter for Crapo.

First time I have ever been aware of Crapo's religious faith. Don't know why, just never crossed my mind.

This kind of information is the reason I keep coming back to Volokh's (grin).

Seriously though, as cool as it would be to have someone from Idaho on the SCOTUS, and as much respect as I have for Mike Crapo, he isn't someone I would have picked as a candidate. I don't know what Harry Reid was thinking. Frankly, I can say that frequently when it comes to Harry Reid.
2.28.2007 6:51pm
Shelby (mail):
Of those floated in this thread, Rogers is the only one I'd have any interest in seeing nominated. Thus, she will definitely not be nominated.
2.28.2007 6:52pm
Cornellian (mail):
I'm still holding out for an EV nomination.
2.28.2007 6:54pm
David Maquera (mail) (www):
I think Mike McConnell should be the next SCOTUS nominee.
2.28.2007 7:19pm
Andrew Hyman (mail) (www):
Regarding Steve Lubet's comment on the possibility of a perpetual filibuster of a SCOTUS nominee, I agree with Orin that such is very unlikely. The public wouldn't stand for it, plus the GOP would completely shut down the Senate (Se. McConnell has already sai so). The GOP would let the filibuster last exactly 4 days (the length of the so-called Fortas filibuster), before completely shutting down the ship of state.

Regarding Ramza's comment on the dearth of comments at confirmthem, as a blogger there it's a concern. But Cornellian and Just and Observer are 100% correct that the implementation of a registartion policy id the main culprit, and I continue to make subtle and non-subtle inquiries about getting rid of it (assuming a good spam filter is used instead).

Witness and JeremyR, those are valid concerns.

And, Alkali, confirmthem has already utilized Theyre-Not-Entitled-To-An-Up-Or-Down-Vote-And- Whatever-You-Do-Dont-ConfirmThem.com during the Miers nomination. :-)
2.28.2007 7:26pm
Steve Lubet (mail):
Orin sez:


Imagine Stevens retires and Cornyn is nominated, and all attention is focused on the Supreme Court. Would 40 Senators really refuse to let their very own colleage have a vote? And would the public go along with a filibuster that keeps the Supreme Court at merely 8 members, unable decide any close cases thanks to the even number? I guess I find that pretty unlikely.


First, Stevens is not going to retire during the Bush presidency. Alas, he might pass away.

Second, damn right 40 Democrats might deny their colleague a vote, if it will determine the makeup of the Supreme Court for the next generation. Please recall that Senate Republicans were not exactly courtly to Democrats for most of the preceding 12 years.

Third, sure the public would go along with the filibuster of a perceived extremist, and both JRB and Cornyn have vulnerable paper trails.

Finally, only 12 Democrats face reelection in 2008, so that leaves 39 who can filibuster without fear (or 38 if you don't count Lieberman). So only a couple more are necessary to the filibuster, with more than enough votes coming from safe seats (MA, IL, RI, NJ).
2.28.2007 7:30pm
Steve Lubet (mail):
Strategically, Bush's best choice for the Supreme Court would be Joe Lieberman. No way for the Dems to deny confirmation, since he would then turn Republican out of resentment. And CT Gov. Rell is a Republican, so his replacement would restore the Republican majority to the Senate.
2.28.2007 7:32pm
Dilan Esper (mail) (www):
Steve Lubet is right about Cornyn. Orin is too focused on the procedural spin-- "deny their Senate colleague a vote". It's much simpler. Bush is ridiculously unpopular. He's not going to be able to push through ANY right-wing choice through a Democratically-controlled Congress. Who is going to punish the 40 Senators for filibustering?

Bush is going to have two choices-- leave the seat vacant or appoint someone no farther to the right than Sandra O'Connor.
2.28.2007 7:50pm
Anderson (mail):
When I read Greenburg's speculation about Janice Rogers Brown, I could not help recalling how Judge Brown recently advertised her deference to executive war powers, which Bush probably cares more about than most any other issue.

Word. She wants it, baby. She's "libertarian" right up to the point where it comes to telling the President "no."

I am also puzzled to think that I live in the same space-time continuum as anyone who thinks that the Democrats would allow Gonzales to sit on the Supreme Court. He wouldn't get out of Judiciary.
2.28.2007 7:54pm
Cornellian (mail):
First, Stevens is not going to retire during the Bush presidency. Alas, he might pass away.

He's probably slipped an earmark into some 300 page bill on agricultural subsidies that will require taxpayers to foot the bill for his funeral, at a 300% markup, at a funeral home owned by one of his relatives.
2.28.2007 7:54pm
OrinKerr:
Steve,

I think our views of how Congess works and how the American public would respond are pretty divergent. Among other things, different people have different views of what makes someone an "extremist," so the label "perceived extremist" is easier to say than to apply. (Interesting question: In a public poll, who would the American public say is the most "extremist" Justice?) And what happens when the Republicans shut down the Senate until there is a vote -- are you sure that the American people embrace a filibuster? You seem pretty confident, but my instincts point in a very different direction.
2.28.2007 7:58pm
NickM (mail) (www):
Filibustering a sitting Senator's nomination is a bad idea if it succeeds. You now have one very upset Senator with the ability to filibuster (by the old-style long speech from the Senate floor) EVERYTHING that the people who filibustered his nomination want to do.

Nick
2.28.2007 8:06pm
Steve:
There is not going to be a filibuster. If anything, the Dems would vote the nominee down in committee. Bork's precedent of insisting on a floor vote despite a negative vote in committee is the historical exception rather than the rule.

A truly divisive nominee simply loses the floor vote, since there's likely to be more squishy R's than D's in the run-up to the 2008 election. I don't see Cornyn as truly divisive, however. A lightweight, maybe, but Miers got nominated, and the social cons won't veto Cornyn like they did with Miers.
2.28.2007 8:08pm
stickler:
Senator Cornyn is a reasonable choice if the main criteria is to confirm a conservative. But Greenberg has repeatedly said -- and I believe she knows what she's talking about on this -- that the next nominee will be a woman (with the one slight exception that it could be Estrada, who has said he doesn't want to be nominated).

Greenberg previously has also said that the three women most likely to be nominated are Brown, Owen and Sykes, with Mahoney in the wings as an option, especially in 2008. Of those four, Brown definitely will create the most excitement among social conservatives. She's who they most wanted for the O'Connor seat. Even if Brown's nomination was defeated by the democratic senate, that would create a great election issue in 2008, not only for the Presidential race but also for the individual races in the Senate.

That's why I expect Brown will get nominated even if the opening comes in 2008 (which is where I disagree with Greenberg, who thinks it then will go to Mahoney).
2.28.2007 8:24pm
DRJ (mail):
John Cornyn graduated from Trinity University, a highly regarded liberal arts college, and St. Mary's Law School, a far less prestigious institution. I think that would hurt him more except his biography includes an advanced degree (Masters at Law) from the University of Virginia.
2.28.2007 8:25pm
frankcross (mail):
I really don't think the Dems would take a hit with the public for leaving the Court at 8, especially if they can spin the alternative as being the end of Roe, etc.

Cornyn is an odd case, difficult to confirm notwithstanding senatorial friendship. As a Senator, he has been very hard right, with lots of material for the left to highlight in confirmation. But as a Texas judge, he had decisions that may be to liberal for the right to swallow. And his educational pedigree may hurt, at least according to Greenburg's telling of past nominations.
2.28.2007 8:40pm
Dilan Esper (mail) (www):
Prof. Kerr:

You need to stop thinking procedurally ("oh, that filibuster is going to make it look like they are denying the nominee a vote") and start thinking POLITICALLY. George W. Bush is the lamest of ducks for the next 2 years. At this point, he couldn't get anything much beyond a Thanksgiving Day proclamation through Congress. No voter is going to punish a Democratic Senator for blocking anything associated with Bush at this point.

And as long as that stays the case, there's no reason why the Dems won't filibuster, unless they can get a nominee who's going to reaffirm Roe.
2.28.2007 8:40pm
DaveN (mail):
For those of you who have not read Supreme Conflict, I recommend it heartily. It also gives some insight into what the Bush White House would look for in any future Supreme Court vacancy.

Justice Stevens is certainly the most likely to go in the next year or so--but for those who think he would have to die to be replaced, I would note that Justice Douglas retired during the Ford presidency--and Ford had led an impeachment drive against him.

Likewise, I am sure it rankled both Justices Brennan and Marshall to retire during the Bush41 Presidency, knowing that their successors would be more conservative than they were (remember, "everyone" thought David Souter was going to be a justice similar in outlook with Anthony Kennedy).

Finally, while most people applaud John Roberts' selection as Chief Justice, Supreme Conflict makes the argument that he was nominated for Chief mainly because he was already cruising toward confirmation to the O'Connor seat. Had Chief Justice Rehnquist died or retired before Justice O'Connor retired, there likely would be a different Chief Justice today.
2.28.2007 8:44pm
Andrew Hyman (mail) (www):
Steve, no SCOTUS nominee is going to get stuck in the Judiciary Committee. Here's how it works: the Dems in the Judiciary Committee try such a stunt, and the GOP makes a motion on the floor to discharge the nominee from Committee. If the Dems on the floor then attempt to filibuster the discharge motion, then the filibuster would last four days, at which point the GOP shuts down the Senate. The only this might not happen would be if Bush nominates Carol Channing, and even then the nominee might make it out of Committee.
2.28.2007 8:46pm
PubliusFL:
joseph: "I think if Bush nominated an ultra-conservative candidate, he will put Republicans in a win-win situation. If Dems stall out the nominee and won't allow a Senate vote, then Republicans can use it as an election year issue for both the Senatorial and Presidential elections. If he/she is confirmed, then conservatives get a friendly Supreme Court justice. Not a bad situation if Republicans play their cards right."

Along the lines of your win-win "strategery": Say Bush nominated someone like Brown to fill a 2008 vacancy, per stickler. That would give Giuliani the opportunity to win some credibility with GOP conservatives -- if the Dems filibuster her, Giuliani could support her nomination and say that he will renominate her if Democratic filibustering keeps a Court seat open past the election.
2.28.2007 8:51pm
Steve:
Tell me, do you consider it a "stunt" to vote against a Democratic nominee, or only a Republican one? Republican partisans have been in a constant process of discovering new rights in the advice and consent process ever since the 2000 election, but I'm fairly certain it's still permissible to vote "no" in committee.

Most people thought Bork would withdraw when he lost the vote in the Judiciary Committee. He insisted on toughing it out, and lost the floor vote, but traditionally most nominees have given it up at step one. That was my only point, and it's really not that controversial.

Your overwhelming degree of confidence that the Republicans would shut down the Senate after exactly four days of filibustering, as if you've been secretly briefed on the battle plan, is rather humorous. Since I already predicted there won't be a filibuster, there's really no point to this bravado.
2.28.2007 8:59pm
Arvin (mail) (www):
Cornyn?? He of box turtle fame?
It does not affect your daily life very much if your neighbor marries a box turtle. But that does not mean it is right. Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife.

I sincerely hope Eugene is kidding, or that there will be no more retirements until 2009.
2.28.2007 9:01pm
Steve:
Janice Rogers Brown only got 56 votes on her confirmation to the D.C. Circuit.

6 of those Republicans have now been replaced by Democrats.

At least 4 more (Coleman, Collins, Smith, Sununu) are expected to face tough reelection battles in blue/purple states.

While I don't want to throw cold water on anyone's fantasies of a showdown at high noon, the most likely scenario is that she would simply get a floor vote and lose. Perhaps that would still be a useful outcome for the GOP, I don't really know. But I wouldn't expect any heroic measures to be employed to stop her.
2.28.2007 9:13pm
Steve:
Arvin, the box turtle thing is just a little joke we have. Cornyn didn't actually say that.
2.28.2007 9:14pm
Redman:
Cornyn is a politician, not a jurist. Far more likely that he will be a GOP Veep nominee than a supreme court nominee.
2.28.2007 9:15pm
Nola1L:
About the "commitment to gender diversity" bit...

The Ediths (Jones and Clement) will be attending a Federalist Society event at my school next Wednesday, and I'm looking forward to talking with Judge Clement in particular about her interview with El Presidente.
2.28.2007 9:28pm
Byomtov (mail):
the label "perceived extremist" is easier to say than to apply.

But it's pretty easy to apply, accurately, to Brown, who is unable to see a meaningful distinction between the New Deal and the Bolshevik revolution.
2.28.2007 9:33pm
Arvin (mail) (www):
Steve: (re: Cornyn's Box Turtle)

From what I remember, it was in the text of a speech he was giving to the Heritage Foundation, which was released to the press beforehand. I do recall that it was reported he DID cut that part out of his oral speech, but it was in what was given to the press.

(And sorry, Professor Kerr, didn't mean to confuse you for Eugene.)
2.28.2007 9:38pm
Andrew Hyman (mail) (www):
Tell me, do you consider it a "stunt" to vote against a Democratic nominee, or only a Republican one?


Steve, it wouldn't necessarily be a stunt for a Democrat to vote against a GOP SCOTUS nominee in committee. What would be a stunt would be to additionally refuse to report the nominee to the floor. When's the last time that happened to a SCOTUS nominee?

All I'm saying is that if it were to happen, then doubtless a discharge motion would be filed on the floor. That has nothing to do with the Advice and Consent Clause. It's simply a Senate rule. Then the Democrats would have to decide whether to filibuster the discharge motion. If they decide to filibuster the discharge motion, then the GOP can filibuster everything else that comes before the Senate, and can additionally refuse unanimous consent for routine business, until such time as the filibuster of the discharge motion is ended. All of this is in the Senate rules, and it has virtually nothing to do with the Advice and Consent Clause.
2.28.2007 9:39pm
Steve:
Yes, I don't think the Democrats would refuse to report the nominee to the floor, assuming the nominee took the Bork route and insisted on a floor vote.

However, since we're indulging hypotheticals, it's virtually unprecedented for a judicial nominee to be discharged from committee. It's far from a given that 50 votes could be rounded up for a procedural action that's never been executed in living memory.

The minority party has a lot of ways to screw up the orderly functioning of the Senate, and the presence of that implicit threat is one of the things that tends to keep matters humming along. However, you seem unduly confident that the Republicans "would" blow everything up in a wide range of scenarios. While that's an option they would have in their pocket, it remains to be seen if they would actually go that route.
2.28.2007 9:54pm
OrinKerr:
Dilan writes:
Prof. Kerr:

You need to stop thinking procedurally ("oh, that filibuster is going to make it look like they are denying the nominee a vote") and start thinking POLITICALLY.
Dilan, putting the blindingly obvious in all caps really isn't necessary. We're just disagreeing on the politics, or, as you would say, we're disagreeing about THE POLITICS. I think you're misunderstanding the politics here, and you think I am. No need to pretend that disagreement reflects failure to even recognize the question.
2.28.2007 9:56pm
stickler:
In response to Steve and the fact Brown only got 56 votes and even some of those Republicans are gone . . .

That's true, but there are some other wild cards out there that could make things play out differently if Brown is nominated for the Supreme Court. The main batch of wild cards is the group of conservative democratic senators that voted against her to the COA but who might vote for her in the high profile vote for the SC. This would include several southern democrats like Landrieu and Byrd (and maybe some more) as well as some western democrats like Johnson (who voted for Alito) as well as some others of those also. And then another batch of wild cards is the group of conservative democrats that were just elected in 2006.

So, all in all, I think she has a valid shot at getting confirmed -- depending on how she comes across at her hearings and how that plays back in the home states of these conservative democratic senators.
2.28.2007 9:59pm
Dilan Esper (mail) (www):
Professer Kerr:

The American public doesn't much care about filibusters, up or down votes, the Advice and Consent Clause, the Senate rules, or any other procedural arguments about judicial nominees. That's what I mean by saying that your post is too concerned about procedure. You think procedural fairness has some political impact. It doesn't. I might add, it didn't when the shoe was on the other foot and the Republicans were making up Constitutional law in support of the nuclear option.

But I also don't think that you are thinking "politically" in another sense. Let me make my position more clear. If George W. Bush pulled out of Iraq tomorrow, he might be able to get any nominee he wanted through the Senate in the fall if Stevens retired or died by the end of the current term. But since Bush is not going to do that, his Supreme Court nominations are complete toast (unless the Democrats actually believe the nominee will vote their way on the Court).

What you seem to have not factored into your analysis is the obvious political fact that George W. Bush has no political capital whatsoever. The only reason any Democrat ever has to go along with a Bush program is if there are political consequences for not doing so. This is why Democrats supported his tax cuts and military policies when he was popular.

Now, he is one of the most unpopular Presidents in modern history. You are portraying it like people will be evaluating whether it is fair to deny judicial nominees this or that Senate procedure. But that's not what is going to happen at all. Bush can't force Democratic Senators to vote for his initiatives, because none of them can possibly lose reelection because they oppose Bush. Therefore, they can vote in complete lockstep the rest of the way.

Trying to evaluate the success of ANY Bush initiative in Congress from here on out without taking into consideration the fact that Bush is one of the most unpopular presidents in American history is, for all intents and purposes, ignoring the political issues that will frame any debate, and that includes a debate over judges. Since you didn't even mention this in your analysis and instead focused on a rather minor procedural argument of no importance to the public, I had valid grounds to assume that you were not taking this into account, rather than that you had taken it into account and dismissed its importance.
2.28.2007 10:24pm
Dilan Esper (mail) (www):
"That has nothing to do with the Advice and Consent Clause. It's simply a Senate rule."

I don't get this. The advice and consent clause permits the Senate to confirm a nominee or deny him or her confirmation pursuant to its rules. So the Senate's rules, including committee evaluation, cloture, and everything else, have everything to do with the advice and consent clause, because they provide the procedures through which the Senate gives its consent.
2.28.2007 10:27pm
Bob from Ohio (mail):
The nominee will be Consuelo María ("Connie") Callahan of the 9th Circuit.
2.28.2007 10:33pm
BobNSF (mail):
One assumes that Cornyn would have to recuse himself from cases involving box turtles.
2.28.2007 10:36pm
therut:
I want Janice Rogers Brown. I would just LOVE to watch Ted Kennedy and Schumer during the hearing. They would explode. It might literally be the end of both of them.
2.28.2007 10:36pm
Dave Hardy (mail) (www):
I'm still holding out for an EV nomination.

If only for the confirmation questioning:

"I'd like to ask you about a blog post you did on April 3, 2006. Some of your commenters had questions, and so do I."

Of course, most recent confirmation hearings could be boiled down to:

1. Can we get you to tell us whether you would overrule or apply Roe v. Wade? and

2. Outside of that context, do you believe a legislature can do whatever it pleases?
2.28.2007 11:02pm
Respondent (mail):
One things for sure. If the Ginsburg drops out, Bush's 1st, 2nd, and 3rd choices would have to all be women. No John Cornyn there.
2.28.2007 11:12pm
Respondent (mail):
Sorry for the botched English. My last post should have read: "One thing's for sure. If Ginsburg" etc.
2.28.2007 11:20pm
Respondent (mail):
Bob from Ohio:
Callahan's upholding of a law requiring Catholic organization's health insurance plans to provide birth control would translate into widespread opposition from the religious conservative base.
2.28.2007 11:22pm
OrinKerr:
Dilan,

I certainly agree that the Iraq war is very unpopular, and that President Bush has low political capital as a result of it. I also certainly agree that the American public neither knows or cares about the details of Senate procedure. (You seem to think I don't realize these things, and I'm not sure why -- that's the second comment in a row in which you imagine me taking a position I haven't taken.) At the same time, I think you underestimate how the combination of the President's power and GOP votes in the Senate plays out in Supreme court nominations. In any event, given your debating style there doesn't seem to be much purpose in keeping this up.
2.28.2007 11:49pm
stickler:
From reading Jan Crawford Greenberg, Callahan doesn't seem to be on the White House radar. Greenberg doesn't mention Callahan as a possible nominee in her book, and neither has she mentioned Callahan in any of the blog questions she's been answering about possible nominees. And I certainly think Greenberg would know.

Callahan seems to be a pipe dream often put forth by democrats and by socially liberal republicans trying to get Bush to nominate a moderate in the vein of O'Connor and Kennedy. This pipe dream apparently (and fortunately) has no substance to it.
2.28.2007 11:50pm
Steve:
This would include several southern democrats like Landrieu and Byrd (and maybe some more) as well as some western democrats like Johnson (who voted for Alito) as well as some others of those also. And then another batch of wild cards is the group of conservative democrats that were just elected in 2006.

I didn't mean to suggest Brown's defeat was a done deal. But the GOP was counting on conservative Southern Democrats to get Bork through, as well, and it didn't quite work out that way. And folks like Landrieu and Byrd aren't nearly as conservative as those old-school Dems.

As for the "conservative" Dems elected in 2006, heh.

The real question, to my mind, is: if Brown is an underdog to get confirmed, does Bush even care? It's not like his W/L record goes in the history books. It would certainly make the base a lot happier for the 2008 elections if he nominated a favorite of theirs (but again, we have to ask if he cares). If Brown gets nominated and gets defeated, is it a "good" loss for the GOP?
2.28.2007 11:50pm
SlimAndSlam:
Respondent: No need to apologize; I didn't even recognize your English as being botched. These days, Ruth Bader G. indisputably is The Ginsburg.

(Of course, if Douglas Ginsburg had been confirmed back in the eighties, he'd be The Ginsburg by right of seniority, and she'd be stuck being The Other Ginsburg. There are worse fates.)
2.28.2007 11:55pm
More about Cornyn (mail) (www):
From the "no one is going to care about this except me but everyone should care deeply" department, Cornyn is the author of a strange bit of legislation that helps the U.S. along the way towards the formation of the NorthAmericanUnion, aka joining the U.S., Mexico, and Canada into an EU-style superstate. Details at my link, and search for his name at my site for more on him.
3.1.2007 12:15am
Andrew Hyman (mail) (www):
Dilan, Steve wrote above: "Republican partisans have been in a constant process of discovering new rights in the advice and consent process ever since the 2000 election, but I'm fairly certain it's still permissible to vote 'no' in committee."

I responded to Steve: "That has nothing to do with the Advice and Consent Clause."

You then said: "I don't get this. The advice and consent clause permits the Senate to confirm a nominee or deny him or her confirmation pursuant to its rules."

I was merely trying to point out (in my reply to Steve) that the scenario I described does not involve discovering any new rights in the Advice and Consent Clause. Rather, it is straightforwardly based on the Senate Rules. Of course, you are correct that the advice and consent clause permits the Senate to confirm a nominee or deny him or her confirmation pursuant to its rules.

Moreover, if Harry Reid can muster 51 votes to blow up the Senate rules, that is permitted by the Constitution as well.
3.1.2007 1:00am
Jonesy:
Cornyn would be filibustered or would lose a vote, and so would Janice Brown (this is the all important swing seat). I dont know much about Mahoney. I think theres even some republicans that would vote against Cornyn and Brown.

I dont think Stevens is going to retire anyhow though. He's very active from what I understand, and seems committed to keep some kind moderate balance on the court.
3.1.2007 1:10am
Steve:
I was merely trying to point out (in my reply to Steve) that the scenario I described does not involve discovering any new rights in the Advice and Consent Clause.

If we really must revisit the entire argument, I had said that the Democrats would vote "no" on an objectionable candidate in the Judiciary Committee, and you labeled that a "stunt," which I was taking issue with in a snarky way.

While I think that's all sorted now, it still seems to me that your position - that the Democrats are required to give any nominee a floor vote, even in the absence of clear majority support - is yet another leap forward from the position the GOP took during the nuclear option debate, and quite obviously another "long-standing tradition" at odds with everything that happened prior to 2000. Be that as it may, I continue to believe the Democrats will give any SCOTUS nominee a floor vote.
3.1.2007 1:25am
Brian G (mail) (www):
I'd like to see JRB, just for the comedy and watching black groups find hilarious ways to oppose the first African-American woman nominated to the Court. Plus, we'd get the fun of Aunt Jemimah and the Gone With The Wind lady cartoons like we get for Condi Rice every now and then.
3.1.2007 3:51am
Ron Mexico:
Cornyn is quite unpopular right now in his home state, especially compared with Hutchison, the other Senator. And there are plenty of good reasons...
3.1.2007 11:02am
Bob from Ohio (mail):
The President wants to nominate a Latino. He wants someone to get confirmed. Callahan meets all the requirements. Opposition from social conservatives is not as important as it once was. Callahan, from all accounts, has a winning personality and has experience as both a state and federal judge. Her background against child abuse helps her with the "uncaring conservative" attack.

Ms. Greenberg puts Janice Rogers Brown as a leading candidate. Talk about pipedreams. So, I really do not take her views all that seriously. If she was fed that by the White House, it was disinformation at best. Brown got 56 votes in a GOP senate, she gets about 44 now. No need to fillibuster her. While I am not a "social liberal" by any stretch of the immagination, I can count. So can the White House. Callahan, is confirmable and preety darn conservative, isolated cases to the contrary. (Isolated cases that can be easily and correctly spun as just following the law. Is there any real doubt that under current case law, the Catholic Charities case was correctly decided?)
3.1.2007 12:31pm
DaveN (mail):
The more I think about it, the more I think Bob from Ohio is right. Both Patrick Leahy and Diane Feinstein said VERY nice things about Judge Callahan when she was nominated to the Ninth Circuit--which would make it very hard for them to oppose her now.
3.1.2007 1:17pm
Dilan Esper (mail) (www):
Professor Kerr:

I assumed you placed too much importance on procedural issues because your post talked about procedural issues about blocking nominees and didn't address the President's low approval ratings, which seem to me to be far more important.

If you believe that the President can get a nominee who will overturn Roe through a Democratically-controlled Congress at a time when he is this unpopular, I think you are mistaken. But I want to make clear, I inferred the things I did from your post because you didn't address what seems to me to be the single most important factor governing Bush's ability to get a nominee through, and instead focused on things that I don't think the American people care that much about (and you now concede you aren't sure the American people care that much about either).

Given the position that you are taking in the comments (which I still disagree with but does indicate you are taking into account the President's low popularity), I think you might have worded the original post differently to make that cleara.
3.1.2007 1:41pm
Phil (mail):
Viet Dihn
3.1.2007 6:05pm
stickler:
Re Callahan -- DaveN and Bob from Ohio

It's true Leahy and Feinstein have said good things about Callahan and would support her nomination to the Supreme Court. It's also true that Boxer supports her too as does Reid, who put Callahan on his list of five good names he gave to the President to nominate from back when O'Connor's seat opened up. There's no doubt at all that the democrats would confirm her. They'd be thrilled if she were nominated.

And that's exactly why Bush will not nominate her. He's not head of the democratice party. Social conservatives will not tolerate her nomination, and that's likely why Jan Crawford Greenberg has made no mention of her nomination.

The argument Bob from Ohio makes that Greenberg must have been feed disinformation that Callahan isn't under serious consideration makes absolutely no sense, especially since everything else Greenberg has written in the book is not based on disinformation. What would be the point of the White House giving Greenberg disinformation about Callahan? It's an empty, absurd statement with no basis in anything except deception.

As is the statement that opposition from social conservatives is not as important as it once was. Social conservatives makeup 40 to 45% of the Republican vote in major elections. In the 2004 election, 80% of the social conservatives voting voted Repubican, and so not only did Bush win but the Republicans got 55 senators. Then in the 2006 election, only 71% of the social conservatives voting voted Republican. That small drop is what lost control of the senate.

Without retrieving this lost support from social conservatives in the 2008 election, the Republicans have no chance of retaining the White House much less regaining the senate.

That's why Callahan will not be nominated and it's why Greenberg didn't mention her as a viable nominee.
3.1.2007 6:07pm
Hans Gruber:
"I dont think Stevens is going to retire anyhow though. He's very active from what I understand, and seems committed to keep some kind moderate balance on the court."

The tendency for liberals to label very liberal justices or politicians as "moderate" never fails to amaze me. I mean, come on, if conservatives referred to Scalia as a moderate or being committed to "moderation," liberals AND conservatives would agree that is ridiculous. Stevens is no moderate; stop pretending that he is. Let me help you out a little bit, the two real moderates on the Court are Kennedy and Breyer.
3.1.2007 6:12pm
Mark Field (mail):

Stevens is no moderate; stop pretending that he is. Let me help you out a little bit, the two real moderates on the Court are Kennedy and Breyer.


It's all relative, isn't it? Stevens was appointed to replace Douglas. By comparison to Douglas, Stevens was a moderate. He was advertised as such at the time. The rightward shift of the Court since then didn't magically convert Stevens into a liberal; if you want to call him one, you have to specify the comparison.
3.1.2007 6:59pm
stickler:
Re: Steve -- possible democratic support for Janice Rogers Brown (wild cards)

These aren't sure things of course, but here are some democratic senators that could vote for Janice Rogers Brown to the Supreme Court, based on other votes they've made.

These four democrats voted for Alito: Ben Nelson (Neb), Tim Johnson (SD), Robert Byrd (WV), Kent Conrad (ND).

Mary Landriu (La) voted for Priscilla Owen and is up for reelection in a socially conservative state.

Ken Salazar (Colo) voted for William Pryor (I think he's changed his thinking since then, but he's still at least a remote possibility).

That's six of the old senators.

Then there's some possiblity that three of the new conservative democratic senators could vote for her. Jon Tester (Mont) ran as being a conservative democrat and made a point in the election to distance himself from Hillary Clinton. Bob Casey (Pa.) is pro life and is relatively conservative on social issues compared to the democrats he beat in the primary. Jim Webb (Va) was once a conservative Republican in Reagan's cabinet who now is very anti-war, but I'm not sure that anti-war stance translates into a vote against Brown.

So that's three more, nine total possible democratic wild cards who could vote for Brown.

It's probably enough to make it an interesting battle, and my personal opinion is she'd win it, if she gave a good performance at her hearing and won over the public.
3.1.2007 7:16pm
DaveN (mail):
As a fairly conservative Republican myself (including on some but not all social issues), I would have absolutely no heartburn over Judge Callahan being elevated to the Supreme Court. She is certainly one of the more conservative members of the Ninth Circuit--though I acknowledge that being called a conservative on that court might not be saying much.

Snark aside, a very quick down-and-dirty Westlaw check found that on 25 separate occassions, Judge Callahan has authored or joined a dissent from the denial of rehearing en banc.--including at least 3 cases subsequently reversed by the Supreme Court.

None of this suggests to me that she is a closet Democrat or that she wouldn't be a conservative Justice on the United States Supreme Court.
3.1.2007 7:33pm
stickler:
Democrats like Callahan. Republicans who are social liberals like Callahan (and there are a few social liberal Republicans in the senate, such as Specter and the two Maine senators, but they are a small minority). You, as you yourself have stated, are at least a partial social liberal (and that's like being partially pregnant, meaning a partial social liberal is a social liberal, no matter if you're conservative on other issues like crime, the economy, defense) so it's no surprise you like Callahan too. But, to use the words Greenberg used to describe Mahoney and why she wasn't strongly considered for the last two seats, Callahan "is not Bush's kind of conservative", meaning not a social conservative. And so Callahan will not be given serious consideration either. Calahan wasn't even mentioned by Greenberg in her book or in any of her blog interviews as being one of those under consideration at all, not for the last two seats and not for a future one.

Callahan for the Supreme Court is merely a democrat/social liberal republican pipe dream.

Social liberal Republicans, like yourself, can continue to push the idea of Callahan all you want, of course, but it will do you no good. Bush will nominate a social conservative.
3.1.2007 8:23pm
Steve:
These aren't sure things of course, but here are some democratic senators that could vote for Janice Rogers Brown to the Supreme Court, based on other votes they've made.

Well, fine, but obviously how they voted on Brown herself is the most relevant data point. The real issue is that if it would be a painfully difficult confirmation process, it's likely the nomination will simply go to someone else in the first place. Enough political capital goes into a Supreme Court nomination that you can't follow a "50% plus 1" strategy.
3.1.2007 8:37pm
DaveN (mail):
Gee, I must be a "liberal" because I am not a lockstep social conservative. I daresay that were I member of the United States Senate my ACU score would be close to 90 or 95 and my ADA score close to zero.

Under your definition, there very very few real conservatives out there (a term I use for myself by the way) since you seem to require absolute orthodoxy.

By the way, President Bush's positions on social issues are not 100% conservative either, by any definition.
3.1.2007 8:39pm
stickler:
Re: Steve
Yes, I basically agree with you that Brown's would be a tough confirmation (one I would like to see, for all kinds of reasons, some just sheer entertainment). But I disagree with you the nomination would go to someone else first because of that. Greenberg has said in blog interviews that the President's current thinking is that a good fight would fire up the base and that's why she thinks he'll nominate Brown. I agree it would. I also think there's enough of a chance Brown could get confirmed that it really wouldn't be some kind of public sacrifice. My guess is that she would be well aware of all this (and more) going in, and it then would be up to her whether or not she wanted the President to nominate her. If she did, I expect he would. (I'm going mainly on my reading of Greenberg — book and blogs).


Re: DaveN
You simply are mistating things. I, of course, didn't say you were a liberal. I said you were a social liberal, and the reason I said that is because you yourself said you were. If you also call yourself a conservative you likely do so for your views on some combination of crime, the economy and defense. Sure, that's fine.

My overriding point — which you try to distract from with the false impication that I referred to you as an overall liberal, which I clearly did not — is that the only people pushing Callahan for the Supreme Court are democrats and Republicans who are social liberals, and because of that Bush hasn't and won't give serious consideration to nominating her to the Supreme Court. ( I base that on my readings of Greenberg's book and her blog answers — in which she never even mentions Callahan, not one time, not in any scenario, not even as some distant possiblity, not past and not future, not ever.)
3.1.2007 9:16pm
Dave N (mail):
stickler,

No, you said I was a social liberal because some of my views on social issues mightbe considered liberal. I did not even say WHICH issues, because that is beside the point. The overwhelming majority of my stands on social issues are are conservative, a very few might be considered liberal. I will not go into which are which, but on most social issues I would not even be considered a moderate. But by your syllogysm, becasue I do not drink your Kool-Aid, bow to your exact gods, and follow your orthodoxy, I am a social liberal.

That, my friend, is frankly absurd. And I thought the Kos people had the monopoly on that kind of thinking.
3.1.2007 11:47pm
Jonesy:
I didnt mean Stevens was himself a moderate. I know he is essentially liberal. What I meant was that between the liberal block and the conservative block that you have a moderate balance.
3.1.2007 11:58pm
Steve:
It certainly would be foolish for the party that got crushed in the last election, and looks to be decided underdogs for as long as the war drags on, to look towards appealing to moderates by nominating someone like Callahan. Keep firin' up that base, boys.
3.2.2007 12:52am
Dilan Esper (mail) (www):
stickler:

Votes when the Republicans controlled the Senate, Bush was popular, and Roe did not hang in the balance, tell you nothing about how these people will vote in this situation. There's going to be huge Democratic Party discipline imposed with respect to the vote on ANY Bush nominee, and NO fear among any of these people that voting against Bush is going to harm them politically. Hence, just about any Bush nominee (other than someone who will actually uphold Roe) is going to start out with 48 votes against cloture. And there's no nuclear option anymore because the Democrats are in control. All this means no even potentially anti-Roe nominee is confirmable.
3.2.2007 1:31pm
Bob from Ohio (mail):
This may be a stale thread but I'll comment again anyway.

Rogers cannot get confirmed, period. There is zero chance that she can get 51 votes. President Bush will not waste his energy in "firing up the base" for her. If he could run in 2008, perhaps but he can't so it just will not happen.

Callahan is just about the most conservative person that can be confirmed. More importantly, she is a Latina. The President wants to make some history here, so that is why I think she will be nominated.

I am neither a Democrat nor a social liberal. In the best possible world, perhaps the President would nominate someone more conservative. We don't live in that world however. We live in a Democrat controlled Senate world with 5 or 6 squishy GOPers to boot.

Callahan is more conservative than Souter, Ginsberg, Stevens and Breyer and maybe even Kennedy. Isn't that good enough in the current political climate? If you say no, be prepred for disappointment.
3.2.2007 4:18pm
Katherine (mail):
Yes, a filibuster to preserve habeas corpus. Absolutely. Even of a fellow Senator. It's supposed to be our government, not a social club.
3.3.2007 4:53am
Thomas Alan (mail):
I don't agree that Callahan is the most conservative nominee we can get. Brown might be a pipe dream, but I do believe we can get Sykes or Clement confirmed without too much difficulty and each would be a huge improvement over Callahan.

You seem to be married to your theory though, so I'll leave you to it.
3.3.2007 7:09am