Fifteen years ago, New Jersey Senator Frank Lautenberg called Samuel Alito “impartial, thoughtful and fair” and offered whole-hearted support for his confirmation.

Today, though, Flip-Flop Frank is singing a different song.

“Fifteen years ago, I supported Samuel Alito to be a judge based on his record as the United States Attorney for New Jersey, but his tenure on the appeals court has been marked by troubling decisions. Judge Alito has demonstrated a hostility to fundamental civil rights, and his record on the bench must be closely scrutinized by the Senate.

“New Jersey has a proud tradition of producing great judges, most notably former Supreme Court Justice William J. Brennan. Justice Brennan was chosen for the Supreme Court based on his legal knowledge and wisdom, unlike what we see today, in which nominees are chosen based on litmus tests that cater to narrow ideological groups.”

OK, Senator -- which "fundamental civil rights" has Judge Alito demonstrated a hostility towards? Given your statement, it should not be hard for you to produce a detailed list with copious documentation.

Or could it be that the litmus test in question comes from "narrow ideological groups" on the Left, those that want abortion on demand and perpetual racial preferences -- in other words, the Democrat base?

Posted by: Greg at 03:01 PM | No Comments | Add Comment
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CBS White House Correspondent set a new low in journalism today – he even outdid his Dan Rather, one of his predecessors.

CBSNEWS Chief White House correspondent John Roberts described the President’s selection of Judge Samuel Alito as “sloppy seconds” during today’s press gaggle with White House Press Secretary Scott McClellan.

John Roberts: “So, Scott, you said that -- or the President said, repeatedly, that Harriet Miers was the best person for the job. So does that mean that Alito is sloppy seconds, or what?”

Scott McClellan: “Not at all, John.”

The all-knowing, all-seeing Matt Drudge provides this tidbit of information for us.

”Sloppy seconds” is described in the United Kingdom’s A Dictionary of Slang as:

Noun: “A subsequent indulgence in an activity by a second person involving an exchange of bodily fluids. This may involve the sharing of drink, or more often it applies to a sexual nature. E.g. ‘I’m not having sloppy seconds, I want to shag her first.’”

Talk about an inappropriate no-class comment.

UPDATE: As pointed out in the comments on this thread, Roberts has apologized.

“At the morning White House gaggle, I used an unfortunate choice of words in a question to Scott McClellan. Please be assured that there was no perjorative intent to my question. I was merely attempting to reconcile past statements about Harriet Miers with the President's new nominee for the Supreme Court.

The early morning White House gaggle is an informal, free-wheeling and often irreverent forum, which is not broadcast and generally not publicly available.

Obviously, my tone this morning was a little too casual.

As we all experience from time to time, it was one of those 'oops' moments which we wish we could rewind and re-record.

I apologize to anyone who took offense to my poor choice of words. I can assure you I meant none."

Not only did he do so in the statement released by CBS, but heoffered his apologies to Scott McCllena at a press briefing as well.

"Scott, on the subject of rude, my apologies for my unfortunate choice of words this morning to you."

Not only that, but he has even posted a response to some of the comments that appeared on the CBS PublicEye blog.

After reading some of the posted comments in response to my apology, I remain deeply troubled and wanted to take a moment to try to clear this situation up.

I can assure you that in no way did I intend to use the phrase 'sloppy seconds' in either a sexual connotation or a perjorative way. Rather, I was thinking 'second choice' - or 'second best'. If Harriet Miers was the "best person for the job" - then - where did that leave Alito? It was a poor choice of words, for which I am deeply sorry.

Many posters seem to think that it is indicative of an 'agenda' or 'reveals my true thinking' about the White House. That is simply not the case. I goofed. And I freely admit it. The words had barely escaped my lips when I cringed and thought 'oops - that was a stupid thing to say'.

Again, the forum was informal and is never broadcast, so I my linguistic guard was down. I uttered a phrase that is used colloquially these days to describe a number of situations. At no time did the sexual connotation ever enter my mind, but I agree, it has no place at the White House.

I have offered my apologies to Scott McClellan, and he has graciously accepted. Scott and I have a good working relationship and he is confident that I meant nothing untoward.

And I offer a humble apology to anyone who took offense upon reading the text of my question. Journalists must be held to high standards, and in this case, I fell short.

You can be confident that it will not happen again.

With highest regards,

John Roberts
Chief White House Correspondent
CBS News

Fine, he sounds contrite and the explanation is plausible. We've all put our foot in our mouths from time to time. We'll have to give him a break on this one.

Posted by: Greg at 10:53 AM | Comments (1) | Add Comment
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Following the Miers debacle, the President has nominated Judge Samuel A. Alito Jr. to the US Supreme Court. While not my preferred candidate, he certainly fell on what I would call my “top five” list of possible successors.

Samuel A. Alito Jr., 55, is a jurist in the mold of Justice Antonin Scalia. Nicknamed "Scalito," or "little Scalia," by some lawyers, the federal appeals court judge is a frequent dissenter with a reputation for having one of the sharpest conservative minds in the country.

Educated at Princeton University and Yale Law School, Alito was nominated by President George H.W. Bush to the U.S. Court of Appeals for the 3rd Circuit in 1990. He had worked for the Justice Department in the Reagan administration and served as U.S. attorney for the District of New Jersey.

The linked Washington Post piece offers further links to some of Alito’s more significant opinions while on the bench – including his dissent in Planned Parenthood v. Casey. He writes well, logically, and bases his opinions on solid constitutional and statutory grounds. I therefore concur with my brother and sisters on the right in supporting this selection.

I think Mark Levin puts it best.

I have known Judge Alito for two decades. We served together in the Meese Justice Department, where he worked in the Solicitor General's Office and was considered the sharpest of Charles Fried's assistants. He is every bit as smart and personable as Chief Justice John Roberts. He is an expert on constitutional law. And he obviously has a longer judicial record, so his judicial philosophy is well-known. Judge Alito is soft-spoken. He is his own man (efforts in the media this morning to paint him as "Scalia-lite" or "Scalito" are intended to fire-up the leftwing base). If he is not qualified to serve on the Supreme Court, then no conservative is qualified.

So letÂ’s get the hearings scheduled and the votes taken. Sandy wants to get back to the ranch and her ill husband, and an ideal candidate is ready to take her place.

Posted by: Greg at 10:50 AM | No Comments | Add Comment
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I found this piece from back in July, talking about a candidate for the Supreme Court who I could support – and who would be hard for the Democrats to oppose. She is Michigan Supreme Court Justice Maura Corrigan.

Corrigan, a justice on one of the country's most conservative state courts, may have just what some Republicans are looking for: practical experience away from the bench and a firm commitment to judicial restraint.

As First Lady Laura Bush and other court watchers urge the president to replace Sandra Day O'Connor with a woman, Corrigan could be an attractive choice—perhaps without the nasty confirmation battle that is almost certain with some of the more outspoken candidates on the list.

"On the Michigan scene, as far as I can see, I've never heard or read that people think that she's an extremist," said Robert Griffin, a former U.S. senator from Michigan who also served with Corrigan on the Michigan Court of Appeals. "She's very competent, does a very good job."

A mainstream conservative. A woman. Oh, yeah – she’s Hispanic, too.

Her pre-judicial resume is impressive, though not elitist. Her career as a judge has included repeated reelection by the people of Michigan, which should make it clear difficult for Democrats to tar her as an extremist.

Corrigan graduated from Marygrove College, a Catholic liberal arts college in Detroit, and received her law degree from the University of Detroit in 1973. She served as a law clerk at the Michigan Court of Appeals for one year before becoming an assistant prosecuting attorney for the state. In 1979, she became the chief of appeals in the U.S. attorney's office in Detroit, where she worked for a decade, eventually becoming the chief assistant U.S. attorney. In 1989, Corrigan moved to a private law firm in Detroit, Plunkett & Cooney, where she specialized in defending local governments in criminal and civil rights cases, said Mary Massaron Ross, a lawyer at the firm.

Ross said few lawyers in the firm were surprised when Michigan Gov. John Engler appointed Corrigan to the state Court of Appeals in 1992. Corrigan was twice elected by Michigan voters to that court and then was nominated by the Republican Party in 1998 for an open seat on the Michigan Supreme Court—a seat that she won. From 2001 to 2004, she served as the court's Chief Justice and has presided over what some describe as one of the most conservative state courts in the country.

Corrigan has been at the center of a court that is clearly grounded in the textualist approach favored by Justice Scalia.

Since 1999, four of the seven justices on the court, including Corrigan, have strongly emphasized their commitment to following legislative intent through "textual analysis," a philosophy of judicial restraint championed by U.S. Supreme Court Justice Antonin Scalia and the Federalist Society, a conservative legal group. In a 2004 article, Corrigan criticized activist judges for relying on an "antidemocratic premise that judges just know better . . . . The constant temptation in judging is to be expedient, to reach out and fix what appears to be wrong. I know that I was not elected as chief justice of the Michigan Supreme Court to be a philosopher-king."

The court's four conservative justices make up the core of the court's 5-2 Republican majority that almost always prevails. The split on the court has led to many heated dissents from the court's two liberal justices. Some criminal-defense lawyers say the court's philosophy has made it difficult for them to win appellate cases, yet other observers say the court's rulings have become much more predictable and consistent since 1999.

"The court is a court that sees its role as having a more limited perspective than the courts in the 1970s and 1980s because it gives great deference to legislative intent," said Patricia Boyle, a former justice on the Michigan Supreme Court.

That takes care of the judicial philosophy issue. Sounds like exactly what was promise during the 2004 election. In Justice Corrigan we would get a justice who recognizes the limitations of the judiciary envisioned by the Founders.

There is one additional bonus. Maura Corrigan is a state judge, not a federal judge. She will bring with her a different perspective from the current crop of justices, all of whom have been federal judges at the time of their appointment to the High Court. In that she will bring on a perspective that will disappear with the retirement of Justice OÂ’Connor. That is a benefit, as I see it.

So, my conservative brothers and sisters – what do you think?

Posted by: Greg at 12:11 PM | Comments (3) | Add Comment
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Consider this post.

Ms. Miers Withdraws

I think Ms. Miers has been unfairly treated by many who have for years urged fair treatment of judicial nominees.

She deserves great thanks for her significant service to the country. She and the president deserved much better from his allies.

No, Hugh, Miers was not ill-treated by most of us who criticized her. She was weighed in the balance and found wanting as a nominee for the Supreme Court by many people, and they exercised their right as Americans to speak out.. If anyone treated her unfairly, it was President Bush. Miers was the wrong person at the wrong time for the wrong job. I would have supported her nomination to the District Court or the Circuit Court – but I do not believe she was ripe for the Supreme Court.

I will agree with one point – Miers does deserve our thanks for her service to the country. She has made significant contributions to the success of the Bush aadministration – but accepting the nomination is not one of them. Her decision to withdraw is.

Posted by: Greg at 12:10 PM | No Comments | Add Comment
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TodayÂ’s editorial on the Miers withdrawal strikes exactly the right note.

No conservative should be in a celebratory mood now that Harriet Miers has withdrawn her nomination. For one thing, reasonable conservatives who considered her unqualified for the Supreme Court conceded that she has had an accomplished career and that she has served the president loyally and, for the most part, well. Gloating would be unseemly. For another thing, the object of conservative agitation against Miers was to get a solid justice confirmed. So the conservative opponents of her nomination have not yet won a victory.

I am pleased that the nomination has been withdrawn. I hope to see a good nomination made – but will be content to see the confirmation of a justice whose writings and career show him or her to be a competent, thoughtful expert in the law who has demonstrated a devotion to constitutional principles. That is the sort of nomination I expect of the George W. Bush – and I expect it to be one that conservatives on both sides of the tracks can support.

Posted by: Greg at 12:08 PM | No Comments | Add Comment
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What are GOP Senators saying about the Miers nomination? It does not sound supportive to me.

"I am uneasy about where we are," said Senator Jeff Sessions, an Alabama Republican on the Judiciary Committee who had so far expressed only support for the president's choice. "Some conservative people are concerned. That is pretty obvious."

Senator John Thune, Republican of South Dakota, called Republican sentiment toward Ms. Miers's nomination "a question mark."

"There is an awful lot of Republican senators who are saying we are going to wait and see," he said.

Senator Norm Coleman, a Minnesota Republican in the political middle of his party, said he needed "to get a better feel for her intellectual capacity and judicial philosophy, core competence issues."

"I certainly go into this with concerns," Mr. Coleman said.

And these are the ones who are commenting publicly.

Posted by: Greg at 01:43 PM | No Comments | Add Comment
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What are GOP Senators saying about the Miers nomination? It does not sound supportive to me.

"I am uneasy about where we are," said Senator Jeff Sessions, an Alabama Republican on the Judiciary Committee who had so far expressed only support for the president's choice. "Some conservative people are concerned. That is pretty obvious."

Senator John Thune, Republican of South Dakota, called Republican sentiment toward Ms. Miers's nomination "a question mark."

"There is an awful lot of Republican senators who are saying we are going to wait and see," he said.

Senator Norm Coleman, a Minnesota Republican in the political middle of his party, said he needed "to get a better feel for her intellectual capacity and judicial philosophy, core competence issues."

"I certainly go into this with concerns," Mr. Coleman said.

And these are the ones who are commenting publicly.

Posted by: Greg at 01:43 PM | No Comments | Add Comment
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Coming back from teaching my night class this evening, my father and I had a discussion of the Harriet Miers nomination. We've not talked about this nominee up until now, but I was not at all surprised to find that neither of us is enthused about the pick.

During the course of the conversation, I realized that there are a lot more reasons for rejecting Miers that have come to light in just the last few days.

At one key juncture after another, Miers has faltered where Roberts glided. Her courtesy calls on the Judiciary Committee's top two senators prompted conflicting tales of curious comments that she may or may not have made. Her answers to the committee's questionnaire included a misinterpretation of constitutional law and were deemed so inadequate that the panel asked her to redo it. She revealed one day that her D.C. law license had been temporarily suspended -- and said the next day that the same thing had happened in Texas -- because of unpaid dues.

Now I'm told that ther edues issue is not a big deal -- especially since they are often handled by the lawyer's firm rathat than the lawyer, and that most government lawyers in DC are not members of the DC Bar. But it is the cummulative effect of these missteps that is troubling. Harriet Miers has, quite bluntly, failed to look competent.

Mr. President -- Harriet Miers is no doubt a wonderful human being and a great friend. She is also, in my estimation, a fine lawyer. But she has been a bad pick from Day One. Now she appears to be in a free-fall. Withdraw the nomination, please, and find another individual to fill this vacancy.

Not just for the sake of the country.

But also for the sake of your friend.

Posted by: Greg at 05:04 PM | No Comments | Add Comment
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I was starting to warm to the idea of Harriet Miers on the Supreme Court. I now have to reject that possibility, given that she has indicated that she sees the Federalist Society as too political, but does not see the NAACP as being political at all!

Q. Ms. Miers, are you a member of any predominantly minority organizations, such as the NAACP, Black Chamber of Commerce, Urban League or any other predominantly minority organizations?

A. Women minorities?

Q. Well, maybe predominantly racial and ethnic minorities?

A. No.

Q. . . . . In your capacity as an at-large member do you think being involved in such organizations might assist you in having a perspective that – bring a perspective to your job that you don’t have?

A. I attend meetings designed to give me that input. However, I have tried to avoid memberships in organization s that were politically charged with one viewpoint or the other. For example, I wouldn’t belong to the Federalist Society any more than – I just feel like it’s better to not be involved in organizations that seem to color your view one way or the other for people who are examining you. I did join the Progressive Voters League here in Dallas during the campaign as part of the campaign.

Q. Are you active in the PVL now, do you intend to be?

A. No, I am not.

Q. Do you think the NAACP and Black Chamber of Commerce are in the category of organizations you were talking about?

A. No, I donÂ’t. . . . .

Transcript of Trial, Roy Williams et al. v. City of Dallas, No. CA-3-88-152-R, pages V-46 to V-47 (U.S. Dist. Ct., N.D. Tex. Sept. 11, 1989).

Posted by: Greg at 12:39 PM | No Comments | Add Comment
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LetÂ’s split the Ninth Circuit. No, not because it is the goofiest of liberal courts in the land, but because it is too large and to slow to really be effective.

The Ninth Circuit, which covers nine states, is considered the largest of all U.S. Circuit Courts. It is larger than the 1st, 2nd, 3rd, 4th , 5th , 6th , 7th , and 11th Circuits combined. The Ninth Circuit contains the fastest growing states in the U.S.

According to the Census Bureau, by 2010, the population of the states the Ninth Circuit covers will grow to over 63 million.

The court's increasing caseload negatively impacts the judges' ability to stay on top of legal developments, Murkowski said. It handles more cases than any other Circuit. Last year alone, 14,272 cases were filed.

The Ninth Circuit is the only circuit in which all judges do not review panel decisions, and it allows the court to be comprised of 11 members compared to the full 28 members. Every other Circuit requires a review by its full panel, thus resulting in the need for only six members of the 28 to have a majority opinion, Murkowski added.

As it stands now, the average time to get a final disposition of an appellate case in the Ninth Circuit is about five months longer than the national average.

Anything would be an improvement over the current system.

Posted by: Greg at 02:09 PM | Comments (1) | Add Comment
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Former Congressman Bob Barr offers this observation, which in many ways mirrors mine. We don’t think that Harriet Miers is anything other than a smart lady and a fine lawyer – but we just don’t see her as having a clearly defined judicial philosophy or a deep concern for the constitutional law issues that are the bread-and-butter of Supreme Court cases.

I know there have been lawyers who have served with distinction on the Supreme Court — men like Lewis Powell, Abe Fortas and even the outstanding Louis Brandeis — whose first judicial job was on the U.S. high court.

The parallels really don't hold up well, Mr. President, because all of those justices actually had well-known records of serving in professional and academic venues in which they were called on repeatedly to issue opinions on complex matters involving constitutional and judicial issues.

Miers, despite have blazed a pioneering trail as the first woman head of the Texas Bar Association, is not possessed of such a record. Indeed, even though her defenders in your administration have noted that her duties as White House counsel necessarily include dealing with matters involving constitutional issues, you have already made it clear you will refuse to allow public or even Senate access to White House documents relating to her official duties.

Thus, even if there existed a paper trail irrefutably establishing that Miers' legal reasoning were every bit as profound as Justice Brandeis', we'll never know, because you refuse to show us the proof.

Moreover, the issues on which your counsel's constitutional bona fides might be established necessarily would relate to a fairly narrow range of matters, and all would necessarily involve justifications for your exercise of certain powers (torture, suspension of habeas corpus, defense of executive privilege). After all, that's what White House counsels are paid to do — find ways to justify whatever power a president wants to claim.

I’ll say it quite clearly – if this were a District Court nomination, I would be strongly supportive of a Miers nomination. I’d fight hard for a Circuit Court confirmation, too. But elevation to the Supreme Court requires an almost intangible something more – and I just don’t see this nominee as possessing it.

May God bless Harriet Miers – and may he keep her off this honorable court.

Posted by: Greg at 02:06 PM | Comments (1) | Add Comment
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Not if you consider the implications of this statement from Judiciary Chairman Arlen Specter.

Senator Arlen Specter, the chairman of the Senate Judiciary Committee, who presides over confirmation hearings, offered a blunt assessment that was yet another sign that the nominee faced an uphill battle on Capitol Hill. Though Mr. Specter called Ms. Miers "intellectually able," he said she had a "fair-sized job to do" to become fluent in the language of constitutional law, which will be essential for senators who want to examine her judicial philosophy in deciding whether to confirm her.

"She needs more than murder boards," Mr. Specter, Republican of Pennsylvania, said in an interview, referring to the mock question-and-answer sessions most nominees use to prepare for their confirmation hearings. "She needs a crash course in constitutional law."

Excuse me, but shouldn't a candidate for the highest court in the United States already be "fluent in the language of constitutional law"? Shouldn't she (or he) be sufficiently well-versed in the field that there is no need for a "crash course in constitutional law"? Can any candidate described in this manner be said to be ready for the Supreme Court?

Sounds like Specter has supplied us with another "Hruska moment".

Please, Mr. President, withdraw this nomination.

(Hat Tip -- Southern Appeal)

Posted by: Greg at 01:02 PM | No Comments | Add Comment
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Columnist EJ Dionne attempts to argue that many on the right are being hypocritical in their use of Harriet Miers' religious affiliation as a tool to discern her judicial philosophy.

Shortly after Bush named John Roberts to the Supreme Court, a few Democrats, including Sen. Richard Durbin, D-Ill., suggested that the nominee might reasonably be questioned about the impact of his religious faith on his decisions as a justice.

Durbin had his head taken off. "We have no religious tests for public office in this country," thundered Sen. John Cornyn, R-Texas, insisting that any inquiry about a potential judge's religious views was "offensive." Fidelis, a conservative Catholic group, declared that "Roberts' religious faith and how he lives that faith as an individual has no bearing and no place in the confirmation process."

But now that Harriet Miers, Bush's latest Supreme Court nominee, is in trouble with conservatives, her religious faith and how she lives that faith are becoming central to the case being made for her by the administration and its supporters. Miers has almost no public record. Don't worry, the administration's allies are telling their friends on the right, she's an evangelical Christian.

Dionne, of course, may have a minor point in noting the hypocrisy of objecting to Durbin's questions while offering assurances based upon Miers' evangelical Christianity. But he is is wrong on the much more substantial question of religious tests -- for neither the Durbin question nor the evangelical assurance constitutes a religious test of any sort -- and certainly not as understood by the Framers of the Constitution.

I pointed this out some months back, responding to an editorial in the New York Sun.

Now we all know that these religious questions are primarily a proxy for questions about abortion and the religion clauses of the First Amendment. Again, these are proper areas for scrutiny. If a hypothetical nominee were, for example, a member of the Christian Identity Movement (White Supremacy dressed up with a facade of theology), would it not be proper to inquire about the nominee's ability to uphold the Fourteenth and Fifteenth Amendments to the US Constitution, as well as the Civil Rights Acts enacted pursuant to them? Of course it would -- and the failure of the nominee to give "the right answers" would be a more than sufficient basis for rejection without running afoul of Article VI.

But how does that square with the many weighty and serious quotes from the Founders regarding religious tests for office?

Coxe, in his examination of the Constitution ("No religious test is ever to be required of any officer or servant of the United States. The people may employ any wise or good citizen in the execution of the various duties of the government") to William Lancaster of North Carolina ("... we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it" ) to Luther Martin ("there were some members so unfashionable as to think that a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that in a Christian country it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism") to Edmund Randolph ("A man of abilities and character, of any sect whatever, may be admitted to any office or public trust under the United States"), the Founders debated the religious test from every angle and then, by an overwhelming margin, excluded it.

The answer, of course, is to understand what constituted a religious test in the mind of an educated American in the latter part of the eighteenth century -- to strictly construe the original intent of the text at the time of its writing and adoption. These were men whose context was fundamentally British, and whose historical points of reference were usually those which came from that heritage. It is no accident, for example, that the rights protected in the Bill of Rights are a reaction to the abuses of the British monarchs over the previous two centuries. Viewed in that context, the prohibition on religious tests is designed to prevent the imposition of "test oaths" which excluded members of certain sects from holding public office or exercising certain rights. The most famous of these were the anti-Catholic oaths which forced individuals to repudiate certain tenets of the Catholic faith and the authority of the pope. Those who refused to take such an oath were barred from public offices and faced certain restrictions on their liberties. Such is not the case with Durbin's questions, which could NEVER rise to the level of a "religious test" in the sense intended by the Founder. Durbin's refusal to vote for a candidate because of those views also does not violate the religious test provision, any more than my refusal to vote for a Satanist does.

Mr. Durbin insisted to reporters last week that he wasn't interested in applying a "litmus test" to judicial nominees. The senator told Judge Roberts, "If you will be honest and forthcoming, you're going to find a warm reception from our side of the aisle, even if we disagree with you on any given issue." But two days later, Mr. Durbin went on NBC's "Meet the Press" to say that if Judge Roberts did not find an implied right to privacy in the Constitution, on which the right to abortion is based, "It would disqualify him in my mind."

Now notice, please, that Durbin's basis for giving or denying his vote is NOT religious, but is instead based upon constitutional interpretation. That is a legitimate basis for a Senator to use in making a decision. After all, a nominee who stated that he believed that Plessy is right and Brown is wrong would merit rejection. While I disagree with Durbin's litmus test (and it is a litmus test, despite his protestation to the contrary), I don't have a problem with rejecting a nominee on the basis of jurisprudential principles, regardless of the source of the "deeply held personal beliefs" which lead to such a conclusion. I wish we on the conservative side had made a practice of doing so over the last few decades.

I'll say about Miers what I said about Roberts -- to the degree that inquiries and assertions regarding her religious beliefs are the basis for discerning a judicial philosophy and/or her basic competence to do the job of a Supreme Court Justice, there is no religious test being imposed.

(Another commentary on Dionne at Captain's Quarters)

Posted by: Greg at 05:30 AM | Comments (2) | Add Comment
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What else can one conclude based upon this statement from todayÂ’s news conference?

Asked by a reporter if she was "the most qualified" person he could find in the country, he said, "Yes, otherwise I would not have" named her.

Dare I suggest a list of other candidates better qualified for the Supreme Court than Harriet Miers?

1. Janice Rogers Brown
2. Priscilla Owen
3. Michael Luttig
4. John Cornyn
5. Edith Jones
6. Consuel Callahan
7. Maura Corrigan
8. Alberto Gonzales
9. Manuel Miranda
10. Miguel Estrada
11. Robert Bork
12. Ted Olson
13. Edith Clement
14. Emilio Garza
15. J. Harvie Wilkinson
16. Bill Pryor
17. Samuel A. Alito
18. Michael W. McConnell
19. Larry D. Thompson
20. Karen Williams

And those are just the Republicans who spring to mind – I won’t get into the liberals who, while repulsive to me in terms of judicial philosophy, are much better qualified, folks like Alan Dershowitz and Larry Tribe.

Posted by: Greg at 03:24 PM | No Comments | Add Comment
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Arlen Specter inadvertently summed up a part of my problem with Harriet Miers.

When asked about a timetable for hearings, Mr. Specter suggested that it would in part be up to Ms. Miers, who will have to study "so that she would have the grasp of these very complex decisions."

The Supreme Court is not a place for someone to learn on the job. If she lacks a grasp of Supreme Court jurisprudence, I would have to argue that she is not particularly qualified for the job of Supreme Court justice.

After all, would you want your doctor to have to study up on anatomy before your surgery?

UPDATE: This story popped into my head yesterday as I considered the Miers nomination.

It is reminiscent of the 1970 nomination hearings for Nixon's nominee Judge G. Harold Carswell. Sen. Roman Hruska (R-Nebraska), defended Carswell against the charge that he was "mediocre," declaring "Even if [Judge Carswell] is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they -- a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Has Arlen Specter supplied us with the “Hruska Moment” of this nomination battle?

Posted by: Greg at 03:23 PM | Comments (1) | Add Comment
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Arlen Specter inadvertently summed up a part of my problem with Harriet Miers.

When asked about a timetable for hearings, Mr. Specter suggested that it would in part be up to Ms. Miers, who will have to study "so that she would have the grasp of these very complex decisions."

The Supreme Court is not a place for someone to learn on the job. If she lacks a grasp of Supreme Court jurisprudence, I would have to argue that she is not particularly qualified for the job of Supreme Court justice.

After all, would you want your doctor to have to study up on anatomy before your surgery?

UPDATE: This story popped into my head yesterday as I considered the Miers nomination.

It is reminiscent of the 1970 nomination hearings for Nixon's nominee Judge G. Harold Carswell. Sen. Roman Hruska (R-Nebraska), defended Carswell against the charge that he was "mediocre," declaring "Even if [Judge Carswell] is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they -- a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Has Arlen Specter supplied us with the “Hruska Moment” of this nomination battle?

Posted by: Greg at 03:23 PM | Comments (1) | Add Comment
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This piece caught my eye while researching Harriet Miers. It involves her position on the issue of gay rights, as indicated on a survey submitted to a homosexual group when she ran for city council in Dallas in the late 1980s.

Miers answered "Yes" to the survey question, "Do you believe that gay men and lesbians should have the same civil rights as non-gay men and women?"

She was noncommittal on several other questions, saying, for example, that she would be willing to discuss the need for a law prohibiting discrimination in housing or public accommodations against people who had AIDS or were HIV-positive.

Asked whether qualified candidates should be denied city employment because they are gay or lesbian, she said, "I believe that employers should be able to pick the best qualified person for any position to be filled considering all relevant factors."

She answered "No" without elaboration when asked whether she believed, both as a citizen and a legislator, that criminalization of the private sexual behavior of consenting adult lesbians and gays should be taken out of the Texas criminal code.

She said Dallas had a responsibility in AIDS education and treatment and that she favored more money being spent in that area "assuming need and resources. I do consider the AIDS illness as a serious total community problem." She underlined "total."

Now I donÂ’t know how her views have changed over the last 15-20 years. IÂ’m told she underwent a religious conversion experience sometime during that period. But it does raise a red flag for me. Does she believe that these issues should be taken out of the political arena via judicial decree, or does she recognize that her policy preferences are not constitutional law? Will she be an activist on these issues, or will she, like Justice Felix Frankfurter, hew to the Constitution despite her liberal policy preferences while still in the political arena? After all, one can support non-discrimination laws as politically desirable while not seeing that policy as mandated by the Constitution.

But I guess that is where my problem comes from. There is no record of rulings, no history of scholarly articles, that give us any clue as to the restraint of activism of a hypothetical Justice Miers. She is a cipher on such matters. And for that reason I continue to oppose her nomination for the court.

Posted by: Greg at 02:00 PM | No Comments | Add Comment
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Well, the president made his second nomination to replace Sandra Day OÂ’Connor.

President Bush named White House Counsel Harriet Miers, 60, to be associate justice of the U.S. Supreme Court today.

Miers, who was Bush's personal attorney in Texas, was the first woman elected president of the Texas Bar Association and was a partner at the Texas law firm of Locke Liddell & Sapp before coming to Washington to work in the Bush administration.

The announcement came just two hours before Chief Justice John G. Roberts Jr. formally took his seat as chief justice of the United States on the high court's opening day of the 2005 term.

Miers would replace retiring Justice Sandra Day O'Connor, generally considered the decisive swing vote on many close issues before the court.

If confirmed by the Senate, Miers would be a rare appointee with no experience as a judge at any level. Initial searches of news archives also suggested that Miers has not been an outspoken advocate for or against any particular issue.

The response of the Democrats in this instance bothers me a great deal. They are too accepting and too gracious.

Reaction from Democrats was noncommittal but not negative, mostly because of who she isn't (a prominent conservative judge similar to some of those on the White House short list) than who she is.

Vermont Sen. Patrick J. Leahy, the top Democrat on the Senate Judiciary Committee, said Miers has been a Bush loyalist and that "it is important to know whether she would enter this key post with the judicial independence necessary when the Supreme Court considers issues of interest to this administration."

But White House spokesman Scott McClellan told reporters that both Republican and Democratic senators suggested Miers by name to the president.

One Democrat who appeared pleased by the choice was Senate Minority Leader Harry Reid (Nev.).

"I like Harriet Miers," said Reid, who had voted against John Roberts as chief justice in Roberts' confirmation vote last week, in a statement. "In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer."

Later when meeting with Miers at the Capitol, Reid noted that 39 other people have been appointed to the Supreme Court without having experience as a judge. He praised her experience as a trial lawyer, an occupation he shares with her.

"So anyone with that background makes me feel good -- someone who has been a courtroom, tried cases, answered interrogatories, done all those things that lawyers need to do," Reid said.

I don’t like it when the opposition is so tepid – we needed a candidate who pissed-off the Left, not one who provoked such a low-key response. That leads me to wonder what they know that we don’t, or what dirt they have on her.

I am, to say the least, disheartened. Not because of the failure of the president to nominate a Hispanic or a sitting judge, though those things trouble me. Rather, I am upset by the lack of credentials on the part of this nominee after the excellent choice of John Roberts for the Court

This is not an individual with the necessary credentials to serve on the Supreme Court. While she may be a superior lawyer, that does not necessarily lead to the belief that she will be a superior judge. She lacks a significant scholarly record. She is a bit older than I would prefer to see. Quite simply, this is a case of “insider-ism” run wild.

National Review puts it well in todayÂ’s editorial on the selection.

Harriet Miers could turn out to be a solid conservative justice, with an intellect and commitment to constitutional rectitude to match Antonin Scalia. The president may believe that she is, and is likely to remain, a solid legal conservative. In accepting the nomination, she said, “It is the responsibility of every generation to be true to the Founders’ vision of the proper role of the courts in our society.” That is something of a platitude; but it is, at least, the right platitude.

When the American Bar Association came out for legal, and subsidized, abortion, Miers argued that members of the organization should be allowed to vote on it first. Perhaps she would have similarly democratic inclinations — and a similar willingness to buck elites on moral issues — on the Supreme Court.

But none of this adds up to persuasive evidence that Miers would pull the Court, and its constitutional law, back toward its proper source. John Roberts was a “stealth nominee” in that he did not have declared positions on such questions as the constitutionality of affirmative action and anti-abortion laws. But Roberts possessed stellar professional qualifications, had impressed everyone who came in contact with him, had written well-reasoned judicial opinions, and had conservative legal heavyweights willing to vouch for his soundness.

These things are either not present, or are present to a smaller degree, in MiersÂ’s case. Being a Bush loyalist and friend is not a qualification for the Supreme Court. She may have been the best pick from within BushÂ’s inner circle. It seems impossible to maintain that she was the best pick from any larger field. It seems highly unlikely that she will be the kind of justice who, in combination with Roberts, Scalia, and Thomas, will attract additional votes by the sheer force of her arguments. This nomination was a missed opportunity.

Harriet Miers is not the sort of nominee that we were promised by the president. She lacks the experience and record that a Supreme Court nominee needs to inspire the confidence of the American people. It is my profound hope that this nomination is withdrawn or defeated so that a more acceptable candidate may be put forward.

OTHER VOICES:
Michelle Malkin (Twice)
Captain's Quarters
Q and O
The Moderate Voice
All Things Beautiful
Southern Appeal (multiple times by different contributers to that outstanding blog)
Blogs for Bush (several times)

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Gwendolen Davey was a bright, motivated kindergarten teacher in at Chambers Elementary School Houston's Alief ISD. She was engaged to be married. One afternoon, she went out to walk her dog and never made it home.

Breanna Zipf was a 17-year-old drug user with a history of blackouts and seizures. She had no driver's license because of her medical condition, which could cause her to lose consciousness behind the wheel and wreck any vehicle that she was driving. Breanna stole her mother's rental car so that she could make a run to a local fast food restaurant.

Their paths crossed when Breanna blacked out after running a stop sign while speeding and ran Ms. Davey down on the sidewalk near her home. Breanna then got out of her car and walked home without making any attempt to render aid to her victim.

On Thursday, Breanna Zipf was convicted of murder. This is a good thing.

On Friday, though, the same jury gave a sentence that constituted a manifest injustice.

One day after convicting Breanna Zipf of murder for a traffic accident that killed a kindergarten teacher, a jury decided Friday that she should serve 10 years' probation.

Zipf, 18, wept after state District Judge Brock Thomas announced the sentence.

Her father said he was glad she would avoid prison.

The father of her victim, however, said he had expected the teen to serve prison time.

"I don't like it very much," said Robert Davey, whose daughter, Gwendolen Davey, was run down July 23, 2004, by a car Zipf was driving.

Thomas will announce the conditions of Zipf's probation in a hearing Monday.

That this irresponsible, self-indulgent little murderer will be permitted to walk the streest where she ran down an innocent woman and left her to dies is an outrage. It is my hope that Judge Thomas will impose the toughest possible conditions upon Breanna Zipf -- conditions that will make it likely that this killer will eventually screw up and do at least part of the 10 years behind bars.

And I urge the Texas legislature to fix this law. No more probation for murderers.

Posted by: Greg at 03:46 AM | Comments (1) | Add Comment
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Colorado Senator Ken Salazar is a lying political hack who will break his word to the voters of Colorado and his fellow senators if President Bush nominates either of two highly qualified female jurists to the Supreme Court.

Saying President Bush sometimes acts "like a king," Sen. Ken Salazar warned Friday that he would vehemently oppose Bush's next Supreme Court pick if it turns out to be one of two controversial U.S. Circuit Court judges or someone else he considers an unqualified ideologue.

During a conference call with reporters, Salazar said he would oppose Janice Rogers Brown or Priscilla Owen, two circuit court judges the U.S. Senate recently installed on the bench following a blistering confirmation process.

By singling out Brown and Owen, Salazar made his most specific warning to the White House yet, calling for more advance consultation before the president makes a nomination to replace retiring Justice Sandra Day O'Connor.

"This president, frankly, sometimes acts like a king," Salazar said. "He's imperious. He believes he controls Washington and controls our country, and does so sometimes in a way that, it's his way or the highway, and doesn't take into account what other people are thinking...when they have a different point of view or are (from) a different party."

Salazar wants the president to take an unprecedented step of publicly releasing its so-called "short list" of Supreme Court candidates before making an official nomination, which could come at any time.

"I have never filibustered a judicial nominee and I hope that I never have to," Salazar said. "I'd hope that if the president does move forward with someone like Janice Rogers Brown, many Republicans would join us in basically telling the president, 'No, we won't accept somebody who is professionally unqualified and is an ideologue...'"

But hold on, Senator – you told the voters of Colorado that you would give nominees an up or down vote. You also signed on to an agreement that specifically allowed Owen and Brown to be confirmed to their respective appellate seats and promising not to use the filibuster. Are you telling us that your word to your fellow senators is no good – and that you allowed two “unqualified” nominees to be placed on the federal courts when you made that agreement? Oh, and by the way, on what basis do you call them unqualified, given their many years of distinguished judicial service on the highest courts of their respective states – as well as their approval by the ABA, which leading Democrats once called the “gold standard” for judicial nominees?

No, Ken, it is clear that you are a partisan hack who lacks the integrity to abide by his word. Resign from office, sir, and allow the people of Colorado to elect someone worthy to serve in the Senate.

Posted by: Greg at 12:15 PM | Comments (2) | Add Comment
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Stephen Markman supplies us with a vocabulary list of words and phrases to use to discern judicial activism. Some examples follow.

Spirit of the Law: Where the actual language of the law is incompatible with the policy preferences of a judge, it is not uncommon for a judge to claim that the “spirit of the law” nonetheless compels the preferred result. A judge may invoke such a “spirit” as a basis for decision-making as if somehow, via this necromancy, that which is not within the law may be conjured into it. Opinions relying upon a "spirit," nowhere incorporated in the actual language of the law, should be scrutinized carefully.

Balancing: The process of “balancing” rights and interests is predominantly a legislative, not a judicial, function. When, in the course of interpreting the law, a judge purports to engage in a “balancing” determination, more often than not he has misconstrued one of the allegedly-competing rights or interests. Concluding that one interest or right is entitled to a 30-percent weight, instead of a 70-percent weight in the “balancing” process not only constitutes an essentially standard-less, legislative decision, but it also implicitly concedes that neither of the rights or interests established by the lawmaker will be accorded full respect.

Public Policy: A judge will often resort to “public policy” as a basis for disregarding the words of the law. Unless such policy is grounded in the actual words of some law, this is simply another way for a judge to replace the determination of the lawmaker with his own determination of what the law ought to be. The most reliable basis for ascertaining “public policy” is for a judge not to examine his own sense of conscience, but to examine the principle repository of such policies in a democratic society, the actual enactments of representative, public bodies.

Notice, please, that each of these is based upon the premise that something other than the text of the Constitution or the law in question is superior to the text or texts being examined. That ultimately becomes the judge’s sense of what ought to be, rather than the views of the legislative and executive branches of government or of the people themselves. Thus, to take one example, the spirit of the laws forbidding racial discrimination requires racial discrimination as a matter of implementing a public policy of affirmative action, which balances the rights of minorities to preferential discrimination in a manner that outweighs the rights of non-minorities to non-discriminatory under the Constitution and the nation’s civil rights laws.

Posted by: Greg at 11:40 AM | Comments (2) | Add Comment
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Stephen Markman supplies us with a vocabulary list of words and phrases to use to discern judicial activism. Some examples follow.

Spirit of the Law: Where the actual language of the law is incompatible with the policy preferences of a judge, it is not uncommon for a judge to claim that the “spirit of the law” nonetheless compels the preferred result. A judge may invoke such a “spirit” as a basis for decision-making as if somehow, via this necromancy, that which is not within the law may be conjured into it. Opinions relying upon a "spirit," nowhere incorporated in the actual language of the law, should be scrutinized carefully.

Balancing: The process of “balancing” rights and interests is predominantly a legislative, not a judicial, function. When, in the course of interpreting the law, a judge purports to engage in a “balancing” determination, more often than not he has misconstrued one of the allegedly-competing rights or interests. Concluding that one interest or right is entitled to a 30-percent weight, instead of a 70-percent weight in the “balancing” process not only constitutes an essentially standard-less, legislative decision, but it also implicitly concedes that neither of the rights or interests established by the lawmaker will be accorded full respect.

Public Policy: A judge will often resort to “public policy” as a basis for disregarding the words of the law. Unless such policy is grounded in the actual words of some law, this is simply another way for a judge to replace the determination of the lawmaker with his own determination of what the law ought to be. The most reliable basis for ascertaining “public policy” is for a judge not to examine his own sense of conscience, but to examine the principle repository of such policies in a democratic society, the actual enactments of representative, public bodies.

Notice, please, that each of these is based upon the premise that something other than the text of the Constitution or the law in question is superior to the text or texts being examined. That ultimately becomes the judgeÂ’s sense of what ought to be, rather than the views of the legislative and executive branches of government or of the people themselves. Thus, to take one example, the spirit of the laws forbidding racial discrimination requires racial discrimination as a matter of implementing a public policy of affirmative action, which balances the rights of minorities to preferential discrimination in a manner that outweighs the rights of non-minorities to non-discriminatory under the Constitution and the nationÂ’s civil rights laws.

Posted by: Greg at 11:40 AM | Comments (2) | Add Comment
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Only about 17% of summoned jurrors show up for duty in the Houston area. That cna cause serious problems with holding trials.

Here's what one local county did.

Dozens of people avoided contempt of court charges and possible fines by agreeing to appear for jury duty in the next 90 days.
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A Fort Bend County judge summoned the people to court and asked them to explain why they didn't appear for jury duty last month.

"The intent is not to generate fine money for Fort Bend County but to get people to comply with the process," state District Judge Thomas Culver said Friday to about 120 people in the courtroom.

Almost all the potential jurors said they never received the jury duty summons, while one person said she was in Louisiana doing relief work in the aftermath of Hurricane Katrina.

The decision to summon the no-shows to court was made because on Aug. 23, the county did not have enough people to fill juries for the day's trials. Bailiffs had to roam courthouse hallways and press into service whomever they could find for jury duty.

It was the first time in several years the county ran short of jurors. But Culver said judges have been concerned recently that fewer people are appearing for jury service and the decision was made to summon all the people who did not show up for the Aug. 30 jury call and have them explain why they were absent.

State law says failing to appear for jury duty can result in contempt of court charges with fines ranging from $100 to $1,000.

"I am going to defer the contempt of court and a $200 fine if you will agree to appear within 90 days for jury duty," Culver told almost every person who stood before him Friday.

So remember -- SHOW UP!

Posted by: Greg at 03:09 AM | No Comments | Add Comment
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Well, weÂ’ve already got the first opportunistic government official filing suit against the insurance industry in the wake of Hurricane Katrina.

The attorney general of Mississippi sued five major insurance companies on Thursday, alleging that they're cheating Hurricane Katrina survivors.

The five companies are divisions of Nationwide Mutual Insurance Co., State Farm Fire and Casualty Co., Allstate Property and Casualty Co., the United Services Automobile Association and Mississippi Farm Bureau Insurance.

The suit is the opening shot in what's expected to be a protracted legal battle over homeowner and business claims after the nation's most devastating storm.
Attorney General Jim Hood sued in state court in Jackson, Miss., alleging that the insurance companies are skirting claims by insisting that damage to homes was caused by flooding, which isn't covered under homeowner policies.

"Is it right to write in the fine print a provision that takes away the reason for the contract in the first place?" Hood asked in an interview after filing suit. "You can't put this stuff in fine print and bankrupt half the coast and say, `Oh well, they should have known.'"

Interestingly, one of these companies is my insurance company, so I am familiar with their practices. When I bought my house, four blocks from Galveston Bay, I was EXPLICITLY told that the policy didnÂ’t cover flood damage. I was EXPLICITLY told I needed to get flood insurance to cover such damage. So when the next hurricane rolls up the Texas coast towards Houston, IÂ’m covered, whether the water comes from above through a hole in the wall or roof (homeownerÂ’s policy) or from below as the water rises (flood policy).

For whatever reason, these people didnÂ’t get the message. Now they want their policies to cover excluded damage, and you have a politician trying to get money out of these companies on behalf of those who did not act in a proactive manner. Look at Mississippi.

FEMA officials have acknowledged that 60 percent of the affected property owners in Katrina's zone of destruction may lack federal flood insurance. To rebuild, they'll have to take out low-interest government loans.

For the 40 percent who have flood policies, the federal government pays claims of up to $250,000 for residences and $500,000 for commercial property. It doesn't cover living expenses until a home is rebuilt.

In Mississippi, there were only 42,320 flood policies in place at the end of last year, a fraction compared with a hurricane-prone state such as Florida, with more than 1.8 million flood policies.

Ahhhhhhh – I see. Folks decided to save a buck, figuring that they would continue to dodge the bullet. Now they want someone else to pay for their choice not to spend the money to protect themselves. Got it.

Toss this suit out of court – with extreme prejudice. And sanction those who filed it.

Posted by: Greg at 12:12 PM | No Comments | Add Comment
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Another California judge has ruled the Pledge of Allegiance unconstitutional.

Reciting the Pledge of Allegiance in public schools was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist who lost his previous battle before the U.S. Supreme Court.

U.S. District Judge Lawrence Karlton ruled that the pledge's reference to one nation "under God" violates school children's right to be "free from a coercive requirement to affirm God."

Karlton said he was bound by precedent of the 9th U.S. Circuit Court of Appeals, which in 2002 ruled in favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools.

However, I detect one flaw in the argument made by the judge.

Since the Supreme Court tossed out the Newdow case on the standing issue, shouldn't that have vacated the entire set of rulings on the case, including the Ninth Circuit decision? Doesn't that mean that the ruling by the Ninth Circuit was nullified and of no effect? And wouldn't that mean that the decision of the Nith Circuit has no precedent value whatsoever?

Judge, you weren't bound by anything except your own predilections.

More at Michelle Malkin, Ankle Biting Pundits, How Appealing, California Conservative, Stop The ACLU, Deep Freeze, Double Toothpicks, and Jawa Report

Posted by: Greg at 08:29 AM | Comments (11) | Add Comment
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John Roberts hit a homerun with this quote.

"The Constitution is the court's taskmaster and it's Congress' taskmaster as well."

If he had included the executive branch in there, it would have been a grand slam.

Remember -- every branch can check the other two, within the limits set by the Constitution. The ultimate arbiter is not the courts, but the Constitution itself.

Posted by: Greg at 07:49 AM | No Comments | Add Comment
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Just so you don't forget what happens to private individuals when the government wants to seize their property to give to other private interests.

A group that won a Supreme Court victory allowing it to seize property for private development is telling some residents to vacate their homes in the latest flash point in a nationwide controversy.

Representatives of the homeowners accused the quasi-public New London Development Corp. on Tuesday of reneging on a promise not to seize the properties while lawmakers considered changing the state's eminent-domain laws.

State House Minority Leader Robert M. Ward (R) called for a special session to enact a moratorium on property seizures, and homeowners vowed to continue fighting.

"They're going to have to pry my cold fingers from the house," said Michael Cristofaro, who received one of several vacate notices sent this week.

Gov. M. Jodi Rell (R) and state lawmakers had urged local governments to refrain from seizing property for development. Rell also favors a special session on the issue, a spokesman said.

But because the state had previously sanctioned the city's use of eminent domain for the Fort Trumbull neighborhood, it was unclear whether lawmakers could make New London delay its plans.

The notices order the property owners and tenants to vacate within 30 to 90 days and start paying rent to the development corporation during that period, according to the Institute for Justice, a Washington-based group representing the homeowners. If residents do not comply, the agency has the option of pursuing an eviction in court.

The Supreme Court ruled 5 to 4 in June that New London could take homes in Fort Trumbull to build a privately owned hotel and office space. The court also said states are free to ban the taking of property for such projects.

And by the way -- the "just compensation" that the property owners are to be paid will be pegged to the 2000 market-value of the propeties (when the homeowners and other property-owners filed suit against New London), not the value of the property today. That makes it unlikely that any of the displaced families or busineses will be able to remain in the community, while the city will receive 2005 market value from the private developers.

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I just found this in my site log.

Referring Link: http://www.google.com/search?hl=en&q=wallace b. jefferson&btnG=Google Search

Host Name: wdcsun26.usdoj.gov

IP Addres: 149.101.1.126

Countr: United States

Region: District Of Columbia

City: Washington

ISP: US Dept Of Justice

Who is Wallace B. Jefferson? He is the Chief Justice of the Texas Supreme Court.

The link takes you to this old post of mine from November.

Does it mean anything?

After all, I hear there is an opening on the US Supreme Court -- and a second African-American justice on the Court could mend some storm-damaged fences.

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Conservative criticism of the judiciary has been called a threat to judicial independence and un-American by American liberals, who see the judicial branch as the only way of enacting their preferred policies over the objection of the American people.

What do these liberals have to say about this comment from an Ohio abortionist?

[Akron Women's Medical Group executive director Carol] Westfall didn't mince words about the decision issued late Thursday by U.S. District Judge Sandra Beckwith in Cincinnati. That decision upheld a 1998 state law that requires teenage girls to obtain parental consent before getting an abortion.

It also requires adults seeking abortions to meet in person with a doctor at least 24 hours beforehand to get a description of the procedure and information about alternatives. Under the former law, that information could be given over the phone or by videotape.

It was the 24-hour requirement that was causing problems at the local clinic.
``This ruling came out at quarter to five on a Thursday night. It was impossible to get a hold of these patients,'' Westfall said. ``My opinion is, the judge should be lynched.''

Excuse me? Lynched? For making a ruling you find inconvenient to your business interests? DoesnÂ’t your threat against the life of a federal judge compromise judicial independence?

I look forward to Ms. WestfallÂ’s indictment and arrest.

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The New York Times published five sets of five questions for Judge Roberts in todayÂ’s edition, set forth by various legal professionals. Some are mundane, some are arcane, and some are actually pretty good. IÂ’d like to highlight some of them.

From Stanford Law professor Kathleen Sullivan:

2. As a student of history, you know that the past is not always prologue. What are three constitutional issues you think will be more important by 2020 than any on which we are focusing now?

From former attorney general Dick Thornburgh:

5. Do you believe that it would further citizens' understanding of our judicial process if arguments before the Supreme Court were to be broadcast or televised live?

From Ron Klain, a former Democrat Judiciary Committee staffer and Clinton judicial selection director:

4. In a memo you wrote in 1981, you criticized affirmative action "preferences" based on race, calling them "objectionable." If preferences given to those born into families that have suffered past discrimination are objectionable, what is your view of preferences given to those born into the families of privilege - namely, the preferences that many universities give to the families of their alumni?

5. Chief Justice William Rehnquist held an annual Christmas celebration in the Great Hall of the Supreme Court, complete with avowedly religious carols, despite periodic objections from some of his colleagues and non-Christian law clerks. As chief justice, will you continue with this practice, and do you find it at odds with the spirit of the court's edicts regarding church and state?

From Marshall University Professor and John Marshall biographer Jean Edward Smith:

1. Chief Justices John Marshall, Charles Evan Hughes and Earl Warren were extraordinarily effective working with colleagues from diverse backgrounds and with differing political views. Can you think of any characteristics these men may have shared that facilitated this?

3. Is it important for a chief justice to have had judicial experience?

5. One of John Marshall's first actions upon becoming chief justice was to take his colleagues out of their multicolored robes and put them in simple black. Do you intend to revert to that tradition, and retire that Gilbert and Sullivan chief justice costume William Rehquist designed?

From the Instapundit himself, University of Tennessee Law Professor Glenn Harlan Reynolds:

1. The Ninth Amendment provides that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Do you believe that this language binds federal courts, or do you believe - as Robert Bork does - that it is an indecipherable "inkblot?" If the former, how are federal courts to determine what rights are retained by the people? On the other hand, if the Ninth Amendment does not create enforceable rights, what is it doing taking up one-tenth of the Bill of Rights?

3. Could a human-like artificial intelligence constitute a "person" for purposes of protection under the 14th Amendment, or is such protection limited, by the 14th Amendment's language, to those who are "born or naturalized in the United States?"

5. Is scientific research among the expressive activities protected by the First Amendment? If not, is Congress free to bar research based solely on its decision that there are some things we're better off not knowing?

From a purely intellectual standpoint, I love many of the questions that appeared. I encourage readers to look at them all, if only for the fun of having fodder for discussion and rumination.

Posted by: Greg at 10:37 AM | No Comments | Add Comment
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Robert Novak seems to think that Judge Priscilla Owen of the Fifth Circuit Court Of Appeals is the leading candidate for Supreme Court.

With Senate confirmation of Judge John G. Roberts Jr. as chief justice virtually assured, the struggle for the Supreme Court returns to replacing retiring Justice Sandra Day O'Connor. The belief in legal and political circles is that President Bush will name a conservative woman, and the front-runner is federal Appellate Judge Priscilla Owen (5th Circuit, Austin, Texas).

According to White House sources, Bush met secretly with Owen last week. While not decisive evidence, this was no mere get-acquainted session beginning a long exploration. He knows and admires his fellow Texas Republican. The countervailing political pressure on Bush is to name a Hispanic American, and Attorney General Alberto Gonzales is a Texas Republican the president knows and likes even better than he does Owen. But signals last week he might name Gonzales probably should not be taken seriously.

Novak notes that Owen's four months on the appeals court is more than what David Souter had when he was nominated by the first Bush -- and that she has over a decade of experience on the Texas Supreme Court. A negative is that she just survived a very close confirmation vote, having been filibustered for four years by Senate Democrats, though her recent confirmation could be a positive given the deal to end the filibuster. This analysis from the Supreme Court Nomination Blog in July lays out some interesting arguments in favor of her nomination.

Posted by: Greg at 11:15 PM | No Comments | Add Comment
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When the man is right, he's right. And on the issue of appointing Alberto Gonzales to the Supreme Court, he is definitely right.

``I believe it's a little too soon for Attorney General Gonzales to move up,'' Specter, a Pennsylvania Republican, said on NBC's ``Meet the Press'' program. ``He's an able fellow, but we just went through a tough confirmation hearing, and my sense is that the national interest would be best served if he stayed in that job right now.''

The confirmation fight was bruising, but ultimately some folks voted for him because a president is really entitled to have the peopel he wants in the Cabinet. An appointment to the Supreme Court will draw much more fire -- and would very likely be defeated even without the opposition of members of the political right who are concerned about the former Texas Supreme Court justice's judicial philosophy.

For the sake of the country, sir, pick somenone else.

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The speculation is out there. Will President Bush replace Sandra Day O'Connor with a Hispanic or a woman? Thre are some of both on everyone's list -- but over at RedState.org, we are hearing that the eventual choice may not be a that was widely mentioned.

That got me to asking about possible nominees who fill BOTH categories. Why not a Latina?

If the President does go that direction, there are a few possible nominees with the experience.

Judge Sonia Sotomayor, who's sat on the 2nd U.S. Circuit Court of Appeals in New York for seven years, often is mentioned, though far down the list. A Princeton University and Yale Law School graduate, she worked as a prosecutor in New York and was put on the federal bench by President George H.W. Bush. Maybe it works against her that President Bill Clinton promoted her to the appellate court.

If Bush wants his own appeals court judge, he might consider Consuelo Maria Callahan, who has as much time on the 9th Circuit as Supreme Court nominee John G. Roberts Jr. had on the D.C. Circuit. Callahan graduated from Stanford University and Pacific McGeorge School of Law in Sacramento (where Justice Anthony Kennedy once taught), then worked as a prosecutor and judge in California.

If he prefers Ivy Leaguers, Bush could try U.S. District Judge Cecilia Altonaga, whom he appointed in 2003. After graduating from Yale Law School, she worked as a Miami-Dade County prosecutor and was appointed to a state circuit court seat by Gov. Jeb Bush before moving to the federal bench.

Altonaga has dealt with a case involving a nativity scene on public property and a lawsuit over same-sex marriage laws. She even sentenced a child pornographer to 100 years in prison. (Full disclosure: In 1984-85, she lived a floor above me in a Yale residence.)

I'll toss the question out there to folks -- what do you know about these judges? Are any of them Supreme Court material?

Posted by: Greg at 03:28 PM | No Comments | Add Comment
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I read the Washington Post's editorial on Jose Padilla with great interest -- given that it essentially concedes the correctness of yesterday's ruling which effectively says that Padilla may be detained until the end of the conflict with al-Qaeda.

And strangely enough, I found myself -- sort of -- in agreement with the position that the paper takes at the end of the article, namely that the time has come to prosecute Padilla.

At this stage, there is no good reason to keep holding Mr. Padilla in a status that raises so many troubling questions and that risks so much. His intelligence value is exhausted, and he would be as disabled from rejoining the fight in a federal prison as in a military brig. Instead of trying its luck before the Supreme Court, the administration ought to seek congressional legislation to regulate such cases. In the immediate term, it should file criminal charges against Mr. Padilla, if it continues to insist he is a dangerous terrorist. Allowing Mr. Padilla a full opportunity to defend himself in a regular criminal proceeding would not only protect liberties, it would avoid another damaging setback for presidential war powers by the high court.

So yes, I retract my support for Padilla's indefinite detention and lend my support for an immediate trial. But whereas the Post envisions a civilian trial for this al-Qaada operative, I propose instead the Executive Branch dispose of this case as was done with the Nazi saboteurs in Ex Parte Quirin. Yeah, that's right -- a military trial.

Padilla's crimes are essentially those of an enemy fighter acting unlawfully to make war upon the United States. Under American law and all international law precedents, a military court is the appropriate place to handle such a case. Supreme Court precedent makes it clear that this in no way violates the Constitution, and military courts are subject to the essential due process requirements of the Constitution. Furthermore, it would be a travesty of justice for one who entered teh US intent on making war upon it to be subject to greater legal protection than our own military personnel who have sworn to uphold, protect, and defend this country and its Constitution.

So let's begin the prosecution of Padilla (or should we be super-sensitive and call him by his chosen name, Abdullah al-Muhajir) before a military court -- to be followed, one should sincerely hope, by a swift and speedy execution upon his conviction.

(Hat Tip -- The Southern California Law Blog

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Look at this incredible statement from DNC Chair Howard Dean. It appears that he believes that opposing the policies advocated by the Democrat Party makes you opposed to equality and a bad American. The bold-face type is mine.

DEAN: My point is that John Roberts has a record. John Roberts appears to be a wonderful, decent, family person, but, again, we get back to the question about whether you really care and whether you have compassion. It's not enough to say you care.

It's what you've done. John Roberts' legal career has been about taking away every protection for young girls and women who want to participate in sports, for African-Americans and Hispanics, who want the equal same right to vote as everybody else, for taking away for women who believe they should determine what kind of health care they have, instead of having politicians do it.

His entire legal career appears to be about making sure those folks don't have the same rights everybody else does. That's probably not the right thing to do two weeks after a disaster, where certain members of society clearly did not have the same protections that everybody else did because of their circumstances. Americans are fair people and they want a sense of justice. I know Judge Roberts loves the law. I'm not sure he loves the American people.

Let's clarify what Howard is talking about here.

Roberts differed with liberals on how Title IX should be applied. He questioned whether one provision of the Voting Rights Act -- a section requiring FEDERAL APPROVAL for every change in district lines, election dates, and polling place locations in some states but not in others, such as Vermont -- should be renewed. And he is a Catholic who really believes in the sanctity of human life -- and has worked to protect the First Amendment rights of pro-life protesters.

Based upon these mainstream political positions, Howard Dean contends that John Roberts hates the American people.

Based upon these mainstream political positions, Howard Dean is questioning the patriotism -- the Americanism -- of a sitting federal judge.

Shame!

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I donÂ’t agree with the legal philosophy of Professor Lawrence Tribe, but I think his column on Chief Justice Rehnquist does a fine job of explaining what the greatest legacy of the recently departed jurist may be.

RECENT events might change the direction of the winds that moved America toward the point Justice Rehnquist comfortably occupied from his earliest days on the court. How the new court will tack with or against those winds will be Topic A at the forthcoming confirmation hearings, as it should be. But Topic B had better be the ability of the new justices to help the court earn the respect of all who take part in its proceedings or are affected by its rulings - which means everybody. Chief Justice Rehnquist was a master at that mission. For that, and for the steadiness of his leadership, I will always remember him with profound gratitude and admiration.

Well said, sir.

And certainly a cut above the hatchet-wielding hate-speech of your colleague at Harvard.

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John CornynÂ’s speculation on the new nominee is probably dead on target.

President Bush's nomination of John Roberts for U.S. chief justice opens the door to a likely appointment of a Hispanic or a woman to the post now occupied by outgoing Justice Sandra Day O'Connor, Texas Sen. John Cornyn said.

Cornyn is a member of the Senate Judiciary Committee, which will conduct confirmation hearings on Roberts and Bush's eventual nominee to replace O'Connor. Roberts was initially nominated for O'Connor's post, but Bush said Monday that he wants the conservative appeals court judge to replace Chief Justice William Rehnquist, who died Saturday.

As Bush begins a new search for an O'Connor replacement, Cornyn said, "it's highly likely" the president will appoint a woman or Hispanic, "or potentially even an Hispanic woman." Asked whether Bush is less likely to name an Anglo man to that position, Cornyn said, "that would be my guess."

Cornyn, a Republican, declined to suggest specific nominees. At least three Texas Hispanics -- U.S. Attorney General Alberto Gonzales, and Emilio Garza and Edward Prado, both members of the 5th U.S. Circuit appeals court -- have been prominently mentioned as possible nominees. Texan Edith Hollan Jones, another 5th Circuit judge, is also a potential contender.

Cornyn, a former Texas Supreme Court justice, was mentioned as a potential candidate in the first-round search but said he has no indication that he is a prospect now.

Does anyone know about Prado?

Also, hereÂ’s hoping that Cornyn is selected to replace John Paul Stevens if the justice dies or retires (he is older than the recently deceased Chief Justice).

Posted by: Greg at 01:18 PM | Comments (1) | Add Comment
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Just a little over twelve hours ago, I wrote this.

There is also, of course, speculation on a possible replacement. I think any number of things could happen, from elevating a sitting justice to the center chair, making Roberts the nominee for Chief Justice, recess appointing O'Connor to the Chief Justiceship (unlikely), or the selection of a candidate from off the Court. I'm genuinely not sure what the President will do, but there are any number of combinations of scenarios. Let's give the matter some time to clarify itself.

I had no way of knowing it, but John Roberts was already meting with George W. Bush in the residence of the White House. First thing this morning, the President made and announced a change of plans -- John Roberts is the nominee to replace his friend and mentor, Chief Justice William Rehnquist (whose death is still difficult to wrap my mind and heart around).

I think this is a good choice, designed to ensure a bit of stability at the Supreme Court.

First, there is absolutely no reason that John Roberts cannot be confirmed by the start of October -- it may sound mundane, but the paperwork and investigations are complete for this nomination. The White House says, and I cannot doubt, that this possibility was already in mind at the time of Judge Roberts' appointment to be the Associate Justice seat held by Sandra Day O'Connor.

Second, this move avoids the problems that exist with an eight member Court. Given that Justice O'Connor made her resignation conditional upon the confirmation of a successor, this "upgrade" of the Roberts nomination will result in a full Supreme Court on the first Monday in October. O'Connor will therefore stay on until a replacement is found and confirmed, and there will be no 4-4 decisions (case affirmed, but no precedent value) or reargument of cases after the new member joins the Court.

Third, it allows the casting of a wider net for nominees. The president now has some breathing room to look at potential nominees. A successor to Justice O'Connor need not be selected before Thanksgiving -- or even before Easter. While she was ready to move on, I suspect that Sandra Day O'Connor will have no objection to staying on the Supreme Court for the entire first term of the Roberts Court, in large part out of consideration for the man who was such a key part of her own confirmation process during the Reagan Administration. In the interim, certain recently confirmed appellate judges (Judge Janice Rogers Brown, for example) will have had time to prove themselves as ready to "step-up" to the Supeme Court.

The article from teh AP contains two items I want to comment upon. The first regards the role of the Chief Justice, and the desire to keep its power and authority out of the hands of Justice John Paul Stevens.

Getting a new chief justice of Bush's choosing in place quickly also avoids the scenario of having liberal Justice John Paul Stevens making the decisions about whom to assign cases to and making other decisions that could influence court deliberations. As the court's senior justice, Stevens would take over Rehnquist's administrative duties until a new chief is confirmed.

I've got to disagree there. While a Chief Justice can assign opinions where he is in the majority, any justice can write and circulate an opinion. The chambers of Justice Scalia, for example, churn out a great many dissenting and concurring opinions. But as students of the Supreme Court know, the mere fact that the initial assignment goes to a particular justice does not prevent another justice (even one in the original minority) from garnering enough votes to become the author of the eventual majority opinion. Add to that the process of negotiation that goes into securing a majority, and the influence of the Chief Justice in making assignments is less a factor than it might appear. Also, the bulk of the Chief Justice's extra duties are administrative -- overseeing the day-to-day functioning of the Court. Those tasks don't significantly change, regardless of the judicial philosophy of the chief justice.

Also, there is an error in the article.

The last time a president chose a chief justice outside the court was half a century ago, when Earl Warren was selected by President Dwight D. Eisenhower.

Wrong! Richard Nixon nominated Warren Burger to sit in the center chair in 1969. He was not a Supreme Court Justice, but a federal appellate judge.

But while we are on the subject of Earl Warren, his tenure as Chief Justice should slam the door on critics who say Roberts lacks the judicial experience to succeed Rehnquist. Warren, after all, had never been a judge prior to becoming chief justice -- but is generally counted as a great or near-great justice by court historians.

As usual, great stuff may be found by Michelle Malkin. The crew at Southen Appeal is also checking in this morning. So is ConfirmThem.com, with several good posts. The Supreme Court Nomination Blog also posts several pieces, as does SCOTUSBlog.

Posted by: Greg at 02:17 AM | Comments (1) | Add Comment
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When Richard Nixon appointed William Rehnquist to the US Supreme Court, he was something of a non-entity. The big name was Lewis Powell, nominated with him for the court's other opening. Little did anyone suspect that Rehnquist would turn into one of the giants of the Court, not only in terms of his leadership if the Court away from the liberalism of the Warren Court, but also in terms of his role as a historian of the Court.

Chief Justice William Rehnquist passed away last night after a battle with thyroid cancer that moved a nation.

A Republican appointed by President Nixon and elevated to chief justice by President Reagan, Rehnquist began as an outspoken conservative and a lone dissenter on the high court. But through the years, as more conservatives joined him on the bench, he found himself shaping the majority of a court that often split 5-4.

A strong defender of states' rights, he viewed the powers of the federal government as clearly defined and extremely limited. In his opinion, liberal justices too often crossed the line between interpreting the law and forming public policy.

He voted consistently against affirmative action, dissenting in cases upholding the use of busing to integrate public schools, and in 1983 was the sole dissenter in a case that upheld the federal government's policy of denying a tax deduction for Bob Jones University because of its racist policies.

He voted against the right to an abortion in the landmark 1973 case of Roe v. Wade, arguing states' rights, and pushed to overturn the decision the rest of his career.

He also argued against the notion that the Constitution demands separation between church and state, writing that the idea "should be frankly and explicitly abandoned."

He voted consistently to give police more powers and to limit the rights of criminal defendants. In his court opinions and in public speeches, he endorsed speeding up the criminal appeals process, especially in death penalty cases.

He presided over the impeachment trial of President Clinton, and after the 2000 presidential election, he sided with the majority in a controversial 5-4 decision that sent George W. Bush to the White House.

I first learned about the Chief Justice when I was a kid reading Woodward and Armstrong's classic study of the Supreme Court, The Brethren. Rehnquist struck me as the most human of the bunch, whetehr it was because he would join the clerks on the roof of the Supreme Court building to blay basketball on "The Highest Court In The Land" or because, when other justices didn't understand a National Lampoon cartoon about SCOTUS decisions about pornorgraphy, he sent his cleks out to get copies for his college-age children. Even his eventual affectation of gold stripes on his judicial robe (which I hope becomes a part of Supreme Court tradition) made Rehnquist seem to be something of a whimsical character. The dignity with which he endured his recent health issues is to be admired.

With heaings on the nomination of Judge John Roberts to succeed Justice Sandra Day O'Connor prepared to begin on Tuesday, there is speculation on a possible postponement. Given that Rehnquist will lie in repose in the Supeme Court Building on Tuesday and Wednesday prior to his funeral at the National Cathedral and burial at Arlington Cemetary, I would not be surprised to see a postponement until Thursday.

Sadly, the partisan buzzards are already circling. Alan Dershowitz insulted the Chief Justice's memory on FoxNews before the body was even cold, redefining terms and airing long-refuted charges about Rehnquist without even a hint of shame. The intellectial lightweights at places like Democratic Underground are not even cloaking their hatred in a veneer of scholarship like that pathetic excuse for a Harvard don did. Both forms of distespect for the dead are equally repulsive.

There is also, of course, speculation on a possible replacement. I think any number of things could happen, from elevating a sitting justice to the center chair, making Roberts the nominee for Chief Justice, recess appointing O'Connor to the Chief Justiceship (unlikely), or the selection of a candidate from off the Court. I'm genuinely not sure what the President will do, but there are any number of combinations of scenarios. Let's give the matter some time to clarify itself.

ADDENDUM: Here is a link to a number of quotes about the Chief Justice. Also, Michelle Malkin has a good post on her blog. Additional info at Blogs for Bush and GOPBloggers. Many links about Chief Justice Rehnquist from ConfirmThem.com

UPDATE: Just when I thought Dershowitz couldn't sink any lower, he resorts to slandering the dead using anonymous sources.

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