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.
This is the fight that Schumer and Kennedy et al, do NOT want. I hope that whoever Bush taps has nerves of steel and a strong set of convictions in order to endure the abuse and terror of his questioners on the committee. This is the WAR we've wanted for decades.
Owl_Eagle
”You know, I'm going to start thanking
the woman who cleans the restroom in
the building I work in. I'm going to start
thinking of her as a human being”-Hillary Clinton
(Yes, she really said that
Peggy Noonan
The Case Against Hillary Clinton, pg 55)
bring it on.
Either would make my heart go pitterpat.
Good catch! BTTT
If these reports are true, then its reassuring. But I do wonder, what happened to consideration of Emilio Garza and Edith Jones?
They are only a couple of yrs older than Alito, and have actually had the courage to publicly criticize Roe. It would be sad to think it is that public criticism that has taken them off the list.
What the @%@#^#&!
Well let's hope so. Let's have that "bruising" fight. I want bare knuckles, split lips and busted noses, missing teeth, ripped ears, broken ribs, and katy-bar-the-door until we get this settled! No more of these disgusting Souters, Ginsbergs, Breyers or Kennedy's. Enough is enough.
("Denny Crane: Gun Control? For Communists. She's a liberal. Can't hunt.")
Too bad the President didn't look at our own FreeRepublic poll for the best choice.
Nicknamed Scalito, Alito is going to make Schumer upchuck and Teddy drive off a bridge.
Let's roll!
He was also part of the blood sacrifice demanded to allow a vote on some other judges earlier this year.
I don't approve of blood sacrifices and I hold a special contempt for those who give them.
Hey McCain, Graham, Warner,Snowe, Collins, DeWine and Chafee, UP YOURS!
If President Bush nominates either man, we'll see whether the seven RINOs in the Gang of 14 will do the honorable thing or not. If they do, the filibuster of judicial nominations will disappear in a puff of smoke. If not, then our course will be obvious, and, ultimately, the Republican Party will be spoken of in the past tense.
It's that serious.
Either one would "make my day".
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