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.
#96 - I certainly agree with you there. Wasn't it John Roberts who wrote that Roe v Wade was "BAD LAW" to begin with?
Roe vs. Wade is:
A) Unconstitutional.
B) The result of judicial activism of the worst sort.
C) Unpopular.
D) At odds with numerous established principles of law, such as the legal concept of paternity.
E) In conflict with science, including an entire discipline known as fetal medicine.
It would not in any way be judicial activism to overturn Roe. Judicial restraint means respecting the constitutional limits on the court's power. If the court had no power to render Roe in the first place (and it didn't) then overturning Roe is anti-judicial activism, not judicial activism. Overturning Roe would be an act of judicial restraint.
Send up a conservative nominee. If he is rejected, send a MORE conservative nominee and let the dems know they only get farther right the longer it takes. We will win. Hell, US Grant won the freakin Civil War with that strategy.
Exactly. Arguing that overturning Roe would be judicial activism is like arguing that returning a stolen car to its rightful owner is theft. Judicial activist rulings have stolen our Constitution from us. Overturning those rulings, and thus giving us our Constitution back, is not judicial activism.
Being from Texas,in fact from a hometown thirty miles from his, I like Luttig.
LET'S TAKE OFF THE GLOVES AND LET'S RUMBLE!!!!
#####Can the SC make an unconstitutional decision? Since the SC is the final arbiter of what's constitutional, aren't their decisions constitutional by definition? Interesting question.#####
If the Supreme Court can interpret the Constitution to say anything they want, then there's no point in having a written document. All we need are nine judges with a warrant to rule over us. The founders assumed good behavior on the part of the courts. It's why Hamilton thought it would be the least dangerous branch. It's also why they gave Congress the power to limit court jurisdiction.
#####Reversing court decisions is very unusual. Sometimes circumstances must warrant it, but we should understand this is likely to be activist.#####
I still don't see how you can maintain that reversing an activist ruling would itself be activist.
#####If you thought Kerry's flip flop was bad, what about the law? Do we really want the court to go flipitty flop whenever a new judge is appointed?#####
No, but who's fault is it that we're even discussing the need to overturn a bunch of bad rulings? Is it not the fault of the leftist activist judges who have used the courts for several decades to impose their personal views on the entire nation? Your argument is that a "conservative" should be someone who conserves liberal activist rulings once their handed down. The result is a court that constantly moves leftward with no restraint whatsoever.
#####Just because a decision is unpopular doesn't mean we want the court to be flip flopping very often.#####
True, but the fact that Roe is unpopular is icing on the cake! :-)
TYPO ALERT: who's = whose & their = they're! :-)
You're falling for the Left's attempt to redefine judicial activism. Overturning a past bad, constitutionally-unfounded decision like Roe is not activism at all. Doing away with an activist decision is not activism. It could only be honestly called activism if after overturning Roe, the justices then issed an edict banning abortions. But of course there is no thought that they would do that. Instead they would simply return the matter to where it belongs -- the states -- and would not mandate any outcome.
And don't fall for this nonsense about the importance of precedent. The pre-Roberts Sup Court had no such regard for precedent when it struck down state sodomy laws in Lawrence vs Texas, after upholding them less than 20 yrs earlier back in the late 80s. They had no regard for precedent when they struck down captial punishment for teenage minors, again, after having upheld it back in the 80s. In both of these cases, the law was 'settled' until the Sup Court decided they didn't like it.
So clearly, precedent only matters to this Sup Court when it protects a liberal decision, otherwise it should be tossed aside in favor of the changing values of society...as divined by the Sup Court.
And you are correct in that there is much speculation that Roberts will be some new type of SCOTUS judge, i.e. one who will be reluctant to overturn precedent, such as with Roe, but who will refrain from voting in favor of similarly absurd, unconstitutional decisions on other matters; or to put it another way, who would not support setting bad precedent on future issues, like say, gay marriage. In short, he would accep the damage that has been done, but would not contribute to future activism.
If this is truly Roberts, then he would be unique, because generally a pro-Roe judge is terrible on most other social/cultural issues. And that gets to your point about there being too much focus on Roe. You're right that it isn't the only important question, but it goes to a general question of judicial philosophy. You can find decisions by pro-Roe O'Connor and Kennedy where they didn't side with the Left on a social issues (the Boy Scouts case is the last one I can think of where the conservatives won), but generally, they seem to have become more liberal on these issues over time. Obviously, support for Roe doesn't denote support for other liberal positions, but a person inclined to support Roe is simply more likely to be of a mindset that supports similar activism on other issues. Do you doubt that O'Connor and Kennedy would vote to impose gay marriage/civil unions?
So if Roberts does prove this speculation correct, then he'd be unique, but my guess is that he will end up on side or the other; the originalist/restrained block with Scalia and Thomas, or the activist wing of the rest.
But if I'm wrong, then while I'd still prefer another Scalia, I would still be relieved if he were to help restrain the Court on future cases.
We may disagree on some owen, and agree on much, but this is not one of them; We SHOULD nominate someone 'far right', because it doesn't matter if these people say we will loose this one or that one, it is BETTER To win the moral argument even if we do not win the physical one becuase (Which if we stand on principle I say that we normally will win anyway, I believe that people ~RESPECT~ this position). Beside most of these Senators will go with 'the changing winds of doctrine'-per Ephesians of the Bible, they CAN be swayed ~Either~ our way or the ~Enemies~, and I prefer our way which I know is possilbe by doing what is right and nominating a true Strict Constructionist, and fighting (and including haiving faith in the Lord God), then I know that anything is possible ;).
Good talking to you- God Bless-
Jeremy
President Bush to Honor Rosa Parks Monday by Nominating Janice Rogers Brown
Judicial activism is when the Court issues decisions with no Constitutional justification. Roe was such a decision, therefore overturning it would simply be righting a past wrong of the Court. Overturning Roe only makes law in the sense that it does away with the bad law made by Roe.
My lack of regard for precedent has been formed by such things as I cited before, in how the Court points to it as sacrosanct only when it is convenient. When it gets in the way of some new leftist decision, then to hell with precedent!
As to gay marriage/civil unions; by "or would they just vote not to block them" do you mean to suggest a possible decision whereby the High Court issues a ruling that bans gay marriage? There is absolutely no reason to think that the Sup Court (or any justice on it in even a dissent), or any federal court, would issue such a ruling, mainly because there are no groups claiming that the Constitution forbids gay marriage/civil unions. So yes, the correct ruling would be, as you say, not to block them, but also not to impose them in any way. The correct ruling -- one we could be fairly confident that Scalia and Thomas would render -- would be that there is no Constitutional right to such arrangements, and so it is therefore for the people and/or states to decide. So on that we seem to agree, but I suspect that O'Connor and Kennedy would not agree, and would istead vote to create a new right, thereby taking the power away from the states.
I may be wrong about O'Connor and Kennedy, but I just can't see them ruling otherwise after Lawrence vs Texas, even though they went out of their way to say that such a decision does not mandate gay marriage. I consider that caveat to be meaningless, and no obstacle to future activism.
As to Congress; well they haven't passed a law banning gay marriage in the country. They have instead tried to protect the states by passing the federal DOMA which says one state does not have to recognize the gay marriages performed in other states. So again I'd agree that Congress should not define marriage for the entire nation. For federal purposes, however, I do think Congress should be the authority on defining marriage, as they did with the other main component of the federal DOMA.
Looks like we got blood.
No, it would overturn a notorious case of judicial activism.
Of course, Roe vs Wade is a judicial construct. Judicial conservatism does not suggest that rulings should not be overturned; it mandates that the court's reach respects legislative perogatives.
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