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.
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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:
The Royal Gorge Bridge is the world's highest suspension bridge, at 1,053 feet above the Arkansas River.
There is no such a thing. You are either a constructionist who believes the constitution is static or you don't. Liberal and conservative have nothing to do with it!
They sound like great nominees. I still would love to have Janice Rogers Brown. Maybe if Stevens retires after this term, we can get Judge Brown.
Yep. I wonder if we have a real appreciation for exactly what sort of "Great Wager" we have undertaken. If we lose this fight, we lose all of the progress and momentum that has been built over the last four decades. If we win...
From Richmond Medical Center, etc., et al. versus James Gilmore, etc., et al.,
I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy
It would seem more e likely that Alito would be, although I thought that was reserved for Yale undergrads. Alito graduated from Princeton, but went to Yale for law school.
Because his writing style is crisp and clear? Because he confronts colleagues when he believes they don't adhere to established law?
Been there, Done that. :D
...and they're so young, too!
If Specter is on board and personally committed to getting confirmation, it will make it harder for any other Republican moderates to pull any crap like the Gang of 14 nonsense.
I know Specter is not a favorite of Freepers, but he got Bork rejected and Thomas confirmed. We need his support. Badly.
She was only recently appointed to her appellate court position. Just a few months, IIRC.
Just out of curiousity...is there anything else conservatives here care about here other than Roe v. Wade? Because I have not heard one. I've never seen such tunnel-vision in my life.
Well, speaking for myself I believe America is facing no two greater threats today than Islamic terrorism and the attempt to create a judicial oligarchy. The constitution was written in plain language with clear roles for the federal and state governments and the people--also, for the three branches of the federal government. The Supreme Court (and, frankly, various Presidents, by allowing it to happen) have trampled on the clear intents of the Framers and there is no greater example of this than Roe v. Wade. For those of us who care deeply about the role of the court in America today, Roe v. Wade is the poster child for all that is wrong with it. And then taking SCOTUS out of the equation, heck, maybe I'm just funny this way, but I don't like baby killing.
We should WANT the fight!
Welcome it!
Make the dems and their RINO cohorts stand up against a strict constructionist. Right vs Left, lets do this!
If so, Judge Brown, seasoned by more than a year on the D.C. Circuit Court of Appeals, would be an in-your-face replacement for Ginsburg in a year or so. Also, the new Senate after the election of 2006 should have two more Republicans, four more if Michael Steele can pull it out in Maryland. That will make the confirmation of Judge Brown just a little easier.
Congressman Billybob
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