Speculation...

I was pursuaded by the predictions that Bush would nominate a woman for the O'Connor seat (I agreed that Owens was a likely pick) and then John Roberts for the Rehnquist seat. Obviously he has not followed that pattern.

After thinking about it I believe Bush has done the right thing by putting Roberts up now. His credentials make him a very difficult target (although his opponents surely will dig something up to pick a fight about) and I like that Bush is not bowing to this notion that there are "designated seats" on the court for a woman, or an ethnic or racial minority, etc. While the court may not see fit to strike down Affirmative Action at the University of Michigan there is no reason they have to practice it as well.

Anyway, it is possible that Bush is nominating Roberts now because Roberts is someone who is undoubtedly qualified and if there is a big fight over Roberts the Republican majority will certainly get him confirmed. After winning a bloody fight, surely the opponents of a "Trustee Court" will re-double their efforts to stop the next nominee. Thus, perhaps Bush is saving Owens or a female nominee for the Rehnquist seat. The Left will have a very difficult time filibustering the first female Chief Justice ever nominated. We know how Bush likes to make historical nominations (Colin Powell, Condileeza Rice etc.) and he values personall loyalty, so perhaps Owens will be the nominee for the next Cheif. It is all pure specualtion...but it is interesting to try to play chess along with the White House.

Bush names John Roberts to Supreme Court...Publius2000 endorses pick

All signs are that Roberts is a fine pick and will take his role as "Trustee" of the Constitution seriously. He seems to have impeccable credentials and is well respected by the sitting members of the court for his litigation skills that have been on display before them many times during his career. For constant updates on the confirmation prcoess visit Confirm Them.

Here is an excerpt from Bush's nomiation speech:

"Judge Roberts was born in Buffalo and grew up in Indiana. In high school, he captained his football team, and he worked summers in a steel mill to help pay his way through college. He's an honors graduate of both Harvard College and Harvard Law School. In his career, he has served as a law clerk to Justice William Rehnquist, as an Associate Counsel to President Ronald Reagan, and as the Principal Deputy Solicitor General in the Department of Justice...."

It is a great sign that he clerked for Rehnquist who has been a very good justice...I would only put Scalia above the Chief with Thomas very close or even with Rehnquist. Rehnquist has been a solid trustee of the Constitution, it seems likely that Roberts will be as well. It is rumored that Rehnquist was pushing for Roberts's nomination and I would doubt he would push for someone who would seek to undue the modest move back to sanity that the Rehnquist court has achieved in some very limited areas. Here is more from the address...

"In my meetings with Judge Roberts, I have been deeply impressed. He's a man of extraordinary accomplishment and ability. He has a good heart. He has the qualities Americans expect in a judge: experience, wisdom, fairness, and civility. He has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution and laws, not legislate from the bench."

Well Bush clearly believes that Roberts won't legislate from the bench. I am glad Bush is stating this clearly in his nomination speech. Some may be wonder why Bush didn't make this the center peice of his speech, but I understand the politics of the situation and while it would be nice for the President to take this moment to educate the American people on the virtues of judicial restraint and having justices that will be "trustees" of the Constitution rather than "activists" it is important to set the stage for a reasonable and civil confirmation process and the nomination speech is probably not the place for a lecture on sound judicial philosophy. In the end, Roberts seems like a fine pick and he certainly does not constitute an extraordinary circumstance, so the Gang of 14 Democrats will be hard pressed to argue for a filibuster.

Now let's sit back and see how and when Robert's opponents (NARAL, Schumer, Kennedy, Leahy, etc.) start attacking Roberts. At long last, Kennedy can now have reporters fill in that name.

Priscilla Owen...A Trustee of the Constitution?

Here is some encouraging background on Priscilla Owen. It comes from material submitted for her nomination to the 5th Circuit Court of Appeals by C. Boyden Gray. (Hat Tip to Confirm Them) The qualities described below seem to suggest that Owen would be a responsible and capable "Trustee" of the Constitution and not an "Activist" (See my previous post for this distinction).

"The Ninth Circuit’s recent decision to hold the pledge of allegiance
unconstitutional1 serves as a vivid reminder that the federal bench must be staffed by jurists who are committed to deciding cases according to the law, not their personal policy preferences (See Newdow v. U.S. Congress, No. 00-16423 (9th Cir. June 26, 2002). Judges are neither legislators nor constitutional drafters, and it is
an abuse of power to use the judicial office to impose one’s political views in the guise of legal interpretation.

Though startling, and inconsistent with America’s constitutional traditions, the Ninth Circuit’s ruling has provoked a nationwide civics lesson. The pledge decision presents an opportunity for the American people to reconsider what sort of judges should be confirmed to the federal bench. And at a more general level, it is an occasion
to revisit the issues of the judiciary’s proper role in a democratic system of government, and what is meant by “judicial activism” and “judicial restraint.”

Ultimately, judicial restraint is an appreciation for the judiciary’s limited powers, and a reluctance to usurp prerogatives that the Constitution assigns or reserves to the other branches of government. In particular, restrained judges:
1. adhere faithfully to binding precedent issued by higher courts, especially
the United States Supreme Court;
2. defer to the policy choices the legislature enacts into positive law, and
refrain from substituting their views for those of the legislature;
3. interpret the Constitution and laws enacted by the legislature as intended
by those who wrote them;
4. respect the traditional authority of trial courts, which are in the best
position to assess the credibility and demeanor of witnesses, to make
factual findings;
5. uphold the right of individuals to take actions which the law permits them to take; and
6. approach each case without any preconceived notions, or reflexively
siding with any one litigant.

Judged by any of these criteria, Justice Priscilla Owen of the Texas Supreme Court, whom the President has nominated to a vacancy on the U.S. Court of Appeals for the Fifth Circuit, undoubtedly is a restrained and principled jurist. Time and again, in her opinions Justice Owen has stressed that the function of a court in interpreting legal text is to give effect to the intent of the lawgiver. Justice Owen consistently has interpreted Texas statutes in light of the binding precedents of the United States Supreme Court. She has deferred to the enactments of the Texas Legislature, denying
that judges legitimately can interpret statutory language to reflect their own political or ideological commitments. And she has declined, as an appellate judge, to meddle with the traditional prerogative of the trial courts to make findings of fact.


The discussion below demonstrates Justice Owen’s fidelity to these and other jurisprudential pillars, a fidelity that earned her a unanimous “well-qualified” rating from the American Bar Association, the highest rating a judicial nominee can possibly achieve. We agree that Justice Owen is superlatively well suited to occupy a seat on
the Fifth Circuit, and we urge the Senate to approve her nomination as soon as possible."

You can read the rest of this recommendation here...
And There is more on Owen Here...

Court Speculation...

Here is a prediction by Quin over at Confirm Them as to the nominees and the order. Only time will tell...

"Two weeks ago, I predicted the order of nominees would be Priscilla Owen, then John Roberts (for Rehnquist), then Gonzales. I still stand by that prediction — even though Joy Clement remains VERY much in the running, or at least was in the running still late last week. The president personally has asked top Louisiana politicians about Clement, supposedly, and his college roommate is a big booster of hers, supposedly. But here’s why I’m predicting Owen and then Roberts and then Gonzo: Bush prizes personal loyalty and also puts high value on having a personal sense of somebody’s character (sometimes he’s wrong, as with Putin). And there’s this quote in an AP story this morning: “I’ve got some people, perhaps in contention, that I’ve already spent time with, that I know. In other words, I’m familiar with some people that are being speculated about in the press. And so I don’t need to interview those.” To my knowledge, there are only four short-listers who he knows well personally: Owen, Gonzales, Cornyn, and Roberts. (Roberts, apparently, is known to W through Roberts’ work in the Bush 41 administration, for which W was the omni-present, unpaid, highly involved enforcer for his father.) Unlike Pryor and J.R. Brown, Owen did quite well on her final cloture vote, and she received, I believe, 58 votes for confirmation. She was endorsed for the 5th Circuit even by the Wash Post. She puts the Dems on the spot on the filibuster, but probably will (barely) avoid one — and if the Dems DO try to filibuster, I guarantee that McCain, Graham, DeWine and probably Warner and Specter WILL use the constitutional option on her behalf. In short, she is confirmable — and she’s a personal friend of the Bushes, and very very bright.
So she gets on. Then Rehnquist, satisfied, retires — and Bush rewards him by picking his former clerk, Roberts, who Bush knows and likes, and who is supprters even by Seth Waxman.
I’d still pick Alito, by the way, but I don’t get to pick."

War on Two Fronts...

This is a must read by one of my favorite thinkers/writers Victor Davis Hanson. Also my friend Pastorius has a good write up on this piece over at CUANAS Enjoy...

(excerpt)
...So it is not true to say that Western civilization is at war against Dark Age Islamism. Properly speaking, only about half of the West is involved, the shrinking segment that still sees human nature as unchanging and history as therefore replete with a rich heritage of tragic lessons.

This is nothing new.

The spectacular inroads of the Ottomans in the16th century to the gates of Vienna and the shores of the Adriatic were not explainable according to Istanbul’s vibrant economy, impressive universities, or widespread scientific dynamism and literacy, or even a technologically superior and richly equipped military. Instead, a beleaguered Europe was trisected by squabbling Protestants, Catholics, and Orthodox Christians — as a wealthy northwest, with Atlantic seaports, ignored the besieged Mediterranean and Balkans and turned its attention to getting rich in the New World.

So too we are divided over two antithetical views of the evolving West — Europe at odds with America, red and blue states in intellectual and spiritual divergence, the tragic view resisting the creeping therapeutic mindset.

These interior splits largely explain why creepy killers from the Dark Ages, parasitic on the West from their weapons to communications, are still plaguing us four years after their initial surprise attack.

"The fault, dear Brutus, is not in our stars/But in ourselves, that we are underlings."


Read the whole thing...

Kennedy Saves the Republic...

From Scrappleface:

"July 02, 2005
Kennedy Slams Unnamed Supreme Court Nominee
by Scott Ott

(2005-07-02) -- Sen. Ted Kennedy, D-MA, today criticized President George Bush's as-yet-unnamed replacement for retiring Supreme Court Justice Sandra Day O'Connor as a "brutal, Bible-thumping, right-wing ideologue who hates minorities, women and cocker spaniels."

"He or she is clearly outside the mainstream of American values," said Sen. Kennedy. "President Bush has again ignored the Senate's 'advice and consent' role, forcing Democrats to filibuster this outrageous nominee."

The Massachusetts Senator said his aides have already discovered "reams of memos" showing that the man or woman Mr. Bush will appoint has "a history of abusing subordinates, dodging military service, hiring undocumented workers, spanking his or her children and rolling back the clock on human rights to the days when the Pharaohs ruled Egypt with an iron fist."

The Senator's office issued a news release to the media documenting the allegations against the potential high court judge, with a convenient blank line allowing reporters to fill in the nominee's name as soon as that information is leaked."

This piece is supposed to be satire...if only it were.

It's the Judicial Philosophy Stupid...Pt II

The left openly advocates nominating justices based on their political ideology or policy preferences. This is nothing new, and this insistence on ideological purity or "litmus tests" for judicial nominees and the resulting actions by the Court of implementing their policy views over and above the plain meaning of the Constitution is what is slowly eroding the authority of the Constitution as a written document that enumerates and limits the power of the Federal government. This is nothing new and there are volumes written about it. I will surely have more to comment on by the left's disregard for written constitutionalism.

However, it is similarly disturbing that in their zeal to restore the Court to its Constitutional moorings, some conservatives lapse into "policy speak" and seem to be evaluating potential justices based on the results of their rulings rather than the philosophy that undergirds them. Again the debate over the next justice should focus on whether or not they will be a "trustee" of the Constitution rather than an "activist." Here are some examples of Conservatives using a policy criteria to evaluate potential nominees over at Confirm Them.

From someone commenting on Confirm Them:

"I am surprised I have not heard more about Senator Reid’s comments regarding Mel Martinez for SCOTUS. He is Hispanic (Cuban), the same age as Garza (58), and devoutly pro-life (his wife as given an award by a crisis pregnancy center if I remember correctly). He also backed the marriage amendment and is against the government use of racial classifications. Most importantly, POTUS is comfortable with him and likes his life story."

Here is a conservative arguing the Martinez should be considered as a potential nominee because he has the correct policy views. He is pro-life, backed the marriage amendment, and is against racial preferences. Those are apporpriate criteria for a Senator, but not good criteria for a Justice to the Supreme Court. What are Martinez's views on how to properly interpret the Constitution? Does he believe he is bound by a plain meaining of the text of the Constitution when making rulings? It is important to make these arguments based on Martinez's judicial philosophy and not his policy views.

Here is another one from Confirm Them via RedState

"Well placed sources are telling RedState that various business interests are lining up in opposition to Michael Luttig as a possible appointment to the Supreme Court.

According to the sources, Luttig tacks too much to the Scalia position when it comes to government regulation. The source says that business interests are concerned that Judge Luttig might be too willing to accept government regulation — more so than the business community would like. Luttig, it seems, sees eye to eye with Scalia on the United States v. Mead Corporation decision and would give, in the opinion of certain business interests, too much deference to an adminstrative body’s regulations arising from ambiguous legislation under a Chevron analysis."

By all accounts Luttig would be a fine Justice who would be a trustee of the Constitution however conservative business interests oppose him because he might not have the correct policy views on government regulation? This is absurd. If conservatives do not reject policy preferences as a basis from which to evaluate potential Justices, then who will? I am certainly not naive; as a political scientist I know that interests exist and they seek to influence governmental policy if they can. I am not surprised that business interests are seeking to oppose a given conservative nominee, but I simply reject their shortsightedness. Americans left, right, Republican, Democrat, of whatever stripe, must return to a standard for Justices that holds their judicial philosophy as the most important criteria for a position on the Court. We must articulate the importance of nomiating Justices who will be trustees or we will slowly see the Constitution recede into the swirling waters of activism and petty policy debates. We are already seeing this cancer eat away at the confirmation process. When just 20 years ago Scalia was confirmed 98-0 and now he could not get nomiated without a bloody and expensive confirmation "campaign." Something has gone terribly wrong.

As we have let our Court engage in policy making. As the Court has be come a sitting legislature, and at times a sitting Constitutional convention the stakes have become too high for both the left and right to allow the process to proced along congenial lines. The United States are still a democratic republic and Americans are demanding that the Court be more accountable given its policy making posture. This implicit move towards accountability is putting immense stress on a confirmation process not designed to be engulfed in a nationwide political campaign with all of its excesses and corseness.

I will continue to hammer this point as much as necessary. Americans must reject political ideology as a basis for choosing Supreme Court nominees. We need trustees of the Constitution, not activists (either liberal or conservative) and conservatives of all people need to elevate their discussions about the next nominee. They need to avoid talking in terms of political ideology and elevate the discussion to focus on judicial philosophy.

If conservatives won't then who will?

It's the Judicial Philosophy Stupid...

The punchline from the Clinton election in 1992 was "It's the Economy Stupid." Which was meant to highlight Bush Sr.'s purported ineptitude regarding Domestic issues...

Well with regard to the upcoming Supreme Court battles, we should remember that "It’s the Judicial philosophy stupid” as opposed to political ideology.

As the ripples of the Sandra Day O'Connor's resignation continue to inspire debate and discussion, it is important to make one thing clear. Most media commentators are speaking in terms of "liberal" versus "conservative" nominees. These terms serve only to confuse not clarify the issue. These terms most commonly refers to the policy preferences of potential nominees on key issues or in other words it refers to their political ideology. These terms do not translate well into the area of Constitutional philosophy. The terms "liberal" and "conservative" are often used as shorthand for judicial philosophy because the nuance of jurisprudence is so varied and often confusing.

Perhaps some more useful terms might be between "activists" and "trustees". Activists, (whether liberal or conservative) would see their role as a justice to actively pursue their policy preferences, or their vision of a just society from the bench, sometimes at the expense of the Constitution. A trustee would see their role as to preserve the authority of the Constitution by putting their notions of justice or their policy preferences aside in order to simply interpret the Constitutional text as faithfully as possible. Sometimes these judges are called "originalists," "strict Constructionists," or "textualists." I advocate the term trustee because it focuses on their primary responsibility which is to preserve the Constitution and faithfully interpret it. Originalism or strict constructionism merely serve as the best means of achieving the end of preserving our written Constitution.

Activists put the preservation of a written Constitution behind the immediate need to pursue a given vision of justice, or the wisest policy in a given case. Their activist posture may come from a good heart or benign motives, but by ignoring or glossing over the authority of the Constitutional text they do more long term harm than short term good. Ultimately they undermine the ability of a sovereign people to constrain their government by outlining Constitutional boundaries in a written text.

Thus, I simply do not want a conservative justice appointed...I want a "trustee"...someone who sees the job of Supreme Court Justice as the guardian of a public trust with that trust being the United States Constitution. I want them to see their sole function as a Justice to preserve and protect the Constitution during their tenure. This will not ensure they will always make the right decision, but it will go a long way in preventing them from intentionally making the wrong decision merely because they don't like the outcome dictated by a plain reading of the Constitution's text.

In the end, our focus should be on their judicial philosophy and not their political ideology.

There is much more to be said on this issue and I am sure the coming weeks will provide ample time to comment…