Posted on 10/30/2005 7:50:40 AM PST by XR7
WASHINGTON — Rebounding from the failed nomination of Harriet Miers to the Supreme Court, President Bush is poised to select between two of the nation's leading conservative federal appeals-court judges — both with deep backgrounds in constitutional law — for what promises to be a bruising Senate confirmation battle.
With an announcement expected today or Monday, administration officials have narrowed the focus to Judges Samuel Alito of New Jersey and Michael Luttig of Virginia, sources involved in the process said. Both have sterling legal qualifications and solid conservative credentials, and either would set off an explosive fight with Senate Democrats, who are demanding a more-moderate nominee to replace Justice Sandra Day O'Connor.
Sources close to the process cautioned that Bush could pick someone else, noting that he had wanted to name a woman to replace O'Connor. Priscilla Owen of Texas, another federal appeals-court judge, is a distant possibility, administration sources said.
But administration sources and others involved in the process — outside the handful in Bush's tight inner circle who were weighing the selection this weekend at Camp David — said a nominee other than Alito or Luttig would be a surprise.
"Those are the only two names anyone is aware of," said a source who asked not to be identified.
The conservative legal community that ardently opposed Miers' nomination — and helped force her withdrawal Thursday — would embrace either judge, although Luttig is more well-known and would win most-enthusiastic support.
Luttig also could provoke the most opposition, at least initially, from Democrats who already are threatening to filibuster any nominee they consider too conservative.
The White House is focusing on Alito and Luttig because both men have the judicial experience and intellectual heft Miers' opponents felt she lacked for the critical O'Connor vacancy. Both are so well-versed in constitutional law that they could handle senators' questions deftly. Miers, a nonjudge, did not impress key senators in private meetings and struggled in practice sessions designed to prepare her for confirmation hearings.
Both men would have strong support from Republican senators and prominent conservatives who were lukewarm or outright hostile to Miers.
With the Miers nomination, conservatives believed Bush squandered a historic opportunity to nominate a heavyweight who could help change the direction of the Supreme Court. Conservatives have criticized the court — and O'Connor as its key swing vote — as too liberal on social issues such as abortion and affirmative action and too willing to take on policy matters that they believe should be left to legislatures.
"If the president decides to go with a noted conservative judge, and you're looking at someone of the caliber of Sam Alito or Mike Luttig, then you're talking about people at the top tier of constitutional jurisprudence," said Jay Sekulow, chief counsel of the American Center for Law and Justice.
Alito and Luttig also have been vetted thoroughly, so a debate on their nominations would focus on their conservative judicial philosophies and views on the law, sources involved in the process said.
Numerous other candidates were either too little-known or inexperienced to energize the base or, more significantly, had personal or potential ethical issues that could give Democrats additional fodder to oppose them, sources said.
Multiple sources said they expected an announcement this afternoon or early Monday. The White House is eager to put the Miers nomination behind it and shift attention from the indictment of I. Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, for obstruction of justice, perjury and making false statements.
By picking Alito or Luttig, Bush would electrify supporters who revolted over the Miers nomination.
"They are widely respected among the bench and bar nationally for being careful jurists, faithful to the Constitution and proponents of judicial restraint," said Wendy Long, chief counsel of the Judicial Confirmation Network, a conservative legal group that did not embrace Miers. "They have so much in common substantively that their differences are more stylistic."
Alito, 55, has been on the Philadelphia-based federal appeals court for 15 years; Luttig, 51, has been on the Richmond-based appeals court for 14 years. Both worked as lawyers in the Reagan and George H.W. Bush administrations. Alito was the U.S. attorney in New Jersey before his appeals-court nomination; Luttig had worked in a prominent law firm.
"In some ways, they're a lot alike. They are both brilliant, and they don't go out of their way to show you that," said John Nagle, a Notre Dame Law School professor and associate dean who knows both men. "They are really personable guys to be around, but in different ways."
Alito, who grew up in Trenton, N.J., and is the son of two public-school teachers, is more reserved and soft-spoken. He often is called "Scalito" because his intellect and Italian heritage draw comparisons to Justice Antonin Scalia. But Alito's personality and self-effacing manner are completely different from those of the boisterous and, at times, bombastic Scalia.
Luttig, who grew up in Tyler, Texas, where his father was a petroleum engineer, is more outgoing. In some ways, he is more like Scalia, for whom he clerked when Scalia was on the federal appeals court. Like Scalia, Luttig's writing style is crisp and clear, and he is willing to confront colleagues when he believes they don't adhere to established law. As a result, his decisions sometimes cannot be considered conservative.
"Mike has been more aggressive in his opinion writing and not shied away from expressing things," Nagle said. "Mike has a reputation for being more provocative, but my sense is it's always been a passion for getting the law right."
By nominating either judge, Bush would draw Republicans into a more-traditional battle with Democrats, who have indicated they will oppose either man, primarily because of opinions they have written on abortion regulations. Both would face tough scrutiny on whether they would vote to overturn Roe v. Wade, the landmark Supreme Court ruling that said women had a constitutional right to an abortion.
Alito is widely perceived as easier to confirm than Luttig, but could be more controversial on the abortion issue. Alito wrote a dissent in a 1991 case that would have upheld a Pennsylvania law requiring women to notify their husbands before obtaining an abortion unless they were worried about their safety or believed the husband was not the baby's father.
Luttig has voted to uphold abortion regulations, including a Virginia parental-notification law. But he also wrote in a 2000 case that a Supreme Court decision upholding a woman's right to an abortion was "super-stare decisis."
Stare decisis is a legal principle that means "let the decision stand," and it constrains courts from readily overturning precedent. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., who supports abortion rights, referred approvingly to Luttig's "super-stare decisis" language during the confirmation hearings for Chief Justice John Roberts.
Alito and Luttig also have a well-defined conservative philosophy that courts should take a back seat to legislatures on social issues. Roberts also articulated that courts should have a limited role in society.
*Excuse me: I mean that we not cow-tow to democrats or liberal :)!
Threatening to filibuster. pffft. Do it to it, Dimkopfs.
Anyone selling tickets? I'd pay good money to see those events. Although I'd prefer they both drove off a bridge. Something like the Royal Gorge Bridge:
That's funny. Driving over that bridge would make me upchuck. :o)
It's not just Conservatives who have what you call tunnel-vision. The Libs have been screeching for years in fear that Roe v. Wade may be overturned. IMO, the reason this particular ruling is so important is not because it's about abortion; rather, it was a turning point for the Supreme Court as far as judicial 'activism'. Constitutional law experts have said for years that it is weak, yet it has been allowed to stand.
It seems to me that a good attorney could argue for 'anything goes' based on that privacy premise. Smoking and possession of marijuana, for example.
I don't know...Specter has already said that he will vote to get the nominee out of committee regardless of what he thinks of them personally. Once the nominee is to the floor, the vote is ours to influence and we'll likely win. And at least if we lose, the RINOs are on record and can be embarrassed and worn down by repeated, qualified, constitutionalist nominees.
I don't think we're in any profound disagreement. It's all a matter of extent. How far right do you want to nominate. Each increment too far right loses GOP Senators in addition to all Dem Senators.
The FR rockstars tend to be rather far to the right, even if we define the center to be GW Bush. That sort of thing loses battles needlessly, because you could have had a small victory, rather than a large loss.
Grutter v. Bollinger, Gonzales v. Raich, Lawrence v. Texas, Kelo v. New London...
How's that for a few? I had them all on my tag line for a while as examples. Any new SCOTUS appointee needs to have a record that would tend to show they'd reject these lameass precedents.
If not, are we making the dangerous mistake of letting the left define the candidate before we do?
Awesome rant though!!! You should call Bush and tell him all that PERSONALLY! ;)
That's what I've been trying to tell people!
http://washingtontimes.com/national/20041129-010523-1935r.htm
"They have something to worry about, and they need look no farther than Tom Daschle," said Sen. John Cornyn
Nebraska
Florida
New Mexico
N Dakota
http://www.janegalt.net/blog/archives/005372.html
No "we" don't, a clique of 7 RINO Senators holds the balance of power in the Senate. They can throw a close partisan vote whichever way they think their constituency would want.
It will take 50 Republicans plus Cheny to change the Senate rules to allow cloture by a simple majority. I am not at all certain that "we' have that many votes if this next confirmation process comes down to a pro-life vs pro-abort catfight.
I'm NOT saying "we" should back away from a fight, I'm just saying that winning that fight is not a sure thing. But Bush and the GOP owe it to the conservative/religious base to fight for a strict constructionist nominee and do everything possible to win that fight.
Bravo Puroresu. This would be the effective option.
No, another USSC decison can overturn Roe. If stare decisis is carved in stone we would still be living under the Dredd Scott decision.
A decision that flies in the face of hundreds, if not thousands, of years of civilized western law and which has NO basis AT ALL in the text of the Constitution should and must be overturned.
I hope Edith Jones is NOT off the list. This is one time that the Republicans can perhaps get their act together and stick TOGETHER. IF the Democraps try a filibuster it should soundly fail. IF there are some RINO's who want to spoil the soup, then let the Republicans do what they said they WOULD DO, employ the nuclear option!! For ONCE can the Republicans not go wobbly!!
#####Overturning Roe at this point would take the very judicial activism conservatives despise.#####
Why do you say that? How is overturning an unconstitutional ruling "judicial activism"? You've been listening to Chuck Schumer & Arlen Specter's Orwellian argument that reversing judicial activism is itself judicial activism.
#####Wouldn't it take a constitutional amendment to change this now?#####
No, it wouldn't.
Good points! President Bush needs to call in a few favors from the likes of Specter. Specter owes him. McCain wants the GOP presidential nomination too much to side with the Rats this time. He knows he seriously hurt himself joining the Gang of 14 Ratfinks the first time. Graham & DeWine have been frightened back into line as well.
It's not a sure thing, of course. Nothing is, but we need to let the Rats know we're willing to fight.
After what was done by Conservative organizations during the Miers nomination the Republicans had better NOT back away from a SHE CAT FIGHT NO way NO how!! IF they do, these RINO's should be done away with by the voters once and for all. They are the biggest headache of the Republican Party and the Conservative movement. They have been the proverbial thorn in the Ass for years. IF I were in Senate I'd be about ready to be rid of that thorn. It's getting painful to even WATCH. Conservatives need to learn HOW to fight. That is one thing the Democraps over them - they stick together like glue and they are therefore able to accomplish things with a lot more ease. The only thorn the Dem's had should have been a republican. !!!
First the Court carved an exception for graduate schools, then public transportation, then for colleges, etc. Finally, it struck it down and reversed it for all remaining purposes. I expect a similar pattern here, that the Court will carve away at Roe for partial birth abortion, for parental notification, for interstate transportation for abortions, etc.
Of course, what I suggest will only happen after the NEXT appointment of a Justice, AFTER this one. The replacement of one of the hard-wired liberal-Democrat Justices.
Congressman Billybob
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