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.

Posted by: Greg at 07:20 AM | No Comments | Add Comment
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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.

Posted by: Greg at 01:48 PM | No Comments | Add Comment
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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.

Posted by: Greg at 01:04 PM | No Comments | Add Comment
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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.

Posted by: Greg at 02:25 PM | No Comments | Add Comment
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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

Posted by: Greg at 11:38 AM | No Comments | Add Comment
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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!

Posted by: Greg at 04:46 AM | No Comments | Add Comment
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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.

Posted by: Greg at 01:27 PM | No Comments | Add Comment
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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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After all, these guys are opposing Judge Roberts based solely upon ideology, not competence or qualifications.

In a letter to Sens. Arlen Specter of Pennsylvania and Patrick Leahy of Vermont, the Republican chairman and ranking Democrat, respectively, on the Senate Judiciary Committee, 160 teachers of law from 63 institutions stated their opposition. They said it was based on Roberts' memos as a Reagan administration lawyer, the briefs that he signed as deputy solicitor general in the George H.W. Bush administration and his rulings on the U.S. Court of Appeals for the District of Columbia Circuit.

That record, the letter said, suggests that Roberts "holds a limited view of Congress' authority to enact key worker, civil rights and environmental protections and a similarly narrow view of the vital role our courts and our government play in safeguarding individual rights, especially civil and women's rights."

At a news conference, Duke University Law School professor Erwin Chemerinsky said Roberts was "likely to be much more conservative than O'Connor" and could overturn narrow decisions upholding affirmative action, the right to privacy and separation of church and state.

In other words, there is no question of fitness for the Supreme Court, simply an objection based upon philosophy. Since the ABA has given the judge its highest rating, this letter is simply a disgrace.

And i love the justification these folks use to justify the rejection of Judge Roberts -- the rejection of Robert Bork, generally considered to be the nadir of confirmation politics and the classic example of the destruction of a highly qualified judge based upon ideological considerations.

Chemerinsky compared O'Connor's departure from the court with the 1987 retirement of moderate Justice Lewis Powell. The Senate rejected Judge Robert H. Bork, then-President Ronald Reagan's first nominee to replace Powell, and the seat eventually went to the moderate conservative Justice Anthony Kennedy.

Fine -- just wait for us to Bork any future liberal nominee -- as should have been done to Ruth Bader Ginsburg.

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Thurgood Marshall was one of the greatest Supreme Court litigators of all time – certainly the greatest of his generation. His place would have been secure in history even if he had not become the first African-American elevated to the US Supreme Court, where he was, in my opinion, a mediocre justice because his ability to use his extraordinary talents as an advocate was constrained by his role as a judge.

On the basis of principle, Marshall refused to accept honors from his home state of Maryland or the city of Baltimore. Yet the name of Baltimore’s airport will be changed to Baltimore-Washington International Thurgood Marshall Airport. Only one member of the state’s Board of Public Works objected. But I think it is important to note WHY he objected – and that his objection was rooted in respect for Marshall’s principles.

All that was left yesterday was approval from the state's Board of Public Works. But state Comptroller William Donald Schaefer (D), as usual, had something to say about it.

"This is wrong, and it shouldn't be done," Schaefer told the original sponsor of the proposal, Del. Emmett C. Burns Jr. (D-Baltimore), during a lengthy and at times tense public exchange.

Although the name change won broad support this year in the General Assembly, the comptroller suggested that those who objected were forced to remain silent rather than face accusations of racial insensitivity.

"Nobody who is politically wise votes against this, and you know why, and so do I," Schaefer (D) told Burns at a meeting of the three-member panel, which eventually passed the measure, with Schaefer abstaining.

Schaefer said Marshall had in the past resisted being honored in Maryland, a state that denied him admission to law school because of his race. Schaefer, 83, a former governor whose position is up for reelection next year, said he was annoyed by Marshall's reluctance to attend the 1980 dedication of a statue in his likeness erected in downtown Baltimore, the city where the justice was born in 1908.

"He just didn't like Baltimore, and he so expressed it," said Schaefer, who was mayor at the time.

Justice Marshall is a man whose legacy deserves respect. I may have fundamental problems with his jurisprudence, but I would never allow that to undermine my respect for his civil rights work and the legacy of equality that goes with that work. But I find it fundamentally wrong to bestow honors upon him in death that he would have rejected in life.

Their response of the so-called civil rights leaders is exactly what one would have expected.

Civil rights leaders hailed the result, calling it fitting recognition for Marshall's contributions as a lawyer, activist and judge. When the governor signed the bill in May, Burns called it "the second-happiest day of my life," behind his wedding day. "Our purpose is to honor a great man," he told the crowd that day. "Generations yet unborn will ask the meaning of this -- and will be told that this governor, this lieutenant governor, this legislature chose to honor one of its own, a son of Maryland who changed the nation for all of America."

Yesterday, Burns tried mightily to contain his outrage at Schaefer's remarks. Burns attempted to tell Schaefer that many other cities, including Jackson, Miss., New Orleans and Atlanta, had named airports for prominent black innovators.
"You're doing it because others have done it?" Schaefer snapped.

"We did it because it's the right thing to do," Burns replied curtly.

So the forces of political correctness and the politicians who pander to them rammed through the proposal to rename the airport, despite the fact that rejecting it would have really been the right thing to do.

After all, how does one honor a hero by going against the principles he practiced during his life?

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