Balkinization  

Saturday, October 29, 2005

Justices Alito and Luttig?

JB

This Chicago Tribune article suggests that President Bush has narrowed his choices to replace Justice O'Connor to two, Samuel Alito of the 3rd Circuit and Michael Luttig of the 4th Circuit.

Both men would be acceptable to President's conservative base, but both would also set off a protracted struggle with Senate Democrats, who would regard each as too conservative. Of the two, Luttig has a somewhat higher profile and would probably face stronger opposition than Alito.

Either Alito or Luttig would delight the members of the conservative intelligentsia who were so disappointed by the nomination of Harriet Miers. The President, however, cannot simply please his base if he wants to succeed. He must calculate whether he will get significant opposition from the Gang of 14 (GO14). If Republicans in the GO14 would support both men and if the Democrats in the GO14 would not support a filibuster, either man will be confirmed as the Republicans have 55 votes in the Senate.

That is the President's favored scenario. An alternative scenario is that because the President has been politically weakened, a few Republicans in the GO14 would seek a more moderate nominee in the mold of Sandra Day O'Connor and would join with the Democrats to form a center coalition that would oppose the nomination. In that case, the President could not count on the support of 55 Republican votes. The key point here is that the Senators in the GO14 could, if they wanted, form the nucleus of an independent centrist powerbase that could challenge a President who is already reeling from a series of political setbacks.

The real issue is whether they will want to do this.


Comments:

I believe that it’s quite possible that some democrats in the GO14 (Mod Squad) will consider either a nomination of Alito or Luttig to the Sup. Ct. as an “extraordinary circumstance,” given both Judges’ conservative (some say extreme) reputations. I’d say the odds are at least 50/50 with Luttig, and perhaps a little less with Alito.
If this occurs, it could trigger a filibuster.

If Democrats filibuster, how do you think Republicans on the Mod Squad would react? Could Republican leaders get all or some of them to support the nuclear option? Anyone care to predict what Republicans on the Mod Squad (John McCain, Lindsey Graham, John Warner, Olympia Snowe, Susan Collins, R. Michael DeWine, or Lincoln Chafee) would do? Seems to me that this is the $64 Million question.
 

FWIW, I disagree. I don't think that either Luttig or Alito hits the "extreme" level of a Janice Rogers Brown, and I think that's where Bush will have to go to set off the G-14---not just conservative, but nutty.

Much as I hate to say it, we Dems lost in 2000 and 2004, and that means we don't get moderates. We get conservatives.
 

Good point. From what I understand, though, Luttig is on the "Democrat Filibuster List," while Alito is not. However, if Luttig is nominated, I don't know if the Dems would have the guts to filibuster if they thought it would hurt their poll numbers.

Alito is more confirmable for other reasons, too-- FWIW, Here is what some are saying on confirmthem.com...

"Word has it the pick has all but been made, and accepted.

"It is Alito.

"He has flown into Washington just recently and was on the short list previously, having been the runner up to Miers, some claim.

"His intellect, frankly, is superior to that of Luttig. His interview went better, and his charming personality will ensure confirmation over Luttig’s confrontational (and some say arrogant) demeanor. He is so likeable it is automatically disarming, even more so than was the case with Roberts.

"Alito is quieter, but more conservative than Luttig, who is closer to Roberts, both in temperment and connections, than many realize. Alito will be less bound by stare decisis and will work easier with others on the court over time than the two, given their respective people skills.

"Alito on the court will resemble Clarence Thomas during argument phases, saving his commentary for dissents or joined opinions. Alito has served for 13+ years on a relatively liberal appeals court, and has not drifted left a bit. He is unlikely to do so on the high court.

"Luttig, with connections to more the “center-right” Roberts, whom he would work with daily, is somewhat less of a sure thing. His “super stare decisis” comments, often quoted here, comes to mind.

"Alito is also more qualified legally overall, compared to Luttig, if one checks the record very closely."

Should be fun to watch.
 

I just saw the "super stare decisis" comment, which I pass along for any others so uninformed as myself:

Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 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."

That would indeed seem to make Luttig toast. And alas, "likability" is probably "enough to satisfy the Senate" these days. God knows, the Roberts hearings did not display top-notch legal minds at work.
 

Anderson: Your above prediction about the Dems choosing not to filibuster either potential nominee appears to be correct. Unfortunately it looks like Conservatives are already "getting out if front" of this one. The insiders in several prominent conservative think tanks are getting ready to make the argument that Dems on the Mod squad (Mod standing for moderate) could only plausibly filibuster if the nominee is unqualified or is a bad person; not because of judicial philosophy. They plan to advance the argument that the President, almost unilaterally, gets to choose Sup. Ct. Justices because he won the election. Also, both Conservatives and Progressives seem to think that Dems will try to avoid a messy political fight right before the '06 campaigning starts.

This is just another example of Conservatives getting way out ahead of Progressives in framing an issue. The PR battle could be won or lost within a week of the nomination.

In my view, Progressives could make an even stronger argument than the Conservatives are preparing to make. They could argue that Dems in the Senate should consider the person's Judicial philosophy when deciding whether to filibuster. This makes sense to me--after all its the Judicial philosophy that would drive opinions. And, the future Justice will have a life appointment, and will affect every one of us. Also, up through the 1950s nominees reportedly sank or swim on their judicial philosophy. The first Sup. Ct. nominee to be rejected by the Senate (George Washington's pick of John Rutledge, a “founder”) was not confirmed because the Senate disagreed with the nominee’s position on the Jay treaty. It seems that the 1795 Senate (who should have been aware of the founders’ "original intent") made it clear that the Senate confirmation process should include an examination of a nominee's political views. For the first 150 years of our history, the thinking was that someone way out of the mainstream shouldn't be confirmed. Winning an election by a few percentage points does not give a President a blank check to put an extremist on the bench! Advice and Consent has to mean something, doesn’t it?

It looks like the Dems will get off to a slow start again, though, and letting Conservatives frame this issue. It will then be uphill battle for Progressives, if they later want a knock-down drag out fight. Frankly, I don't understand why they would chose NOT filibuster Luttig or Alito (who is reportedly even more conservative than Luttig). They should paint the future nominee as an extremist (if she/he is in fact one). If the Dems aren't going to fight for this, what will they fight for? Dems need to go on the offensive on this--attack. Counterpunching is for boxers--and even in boxing counter-punchers usually lose.

What are the Dems afraid of? Filibustering won't hurt their poll numbers too badly...if it does it won't for long. Most mainstream Americans don't really understand the confirmation process and the filibuster anyway. The American people care much more about gas being at a record high while the Bush-supported oil companies make record profits while also raking in huge tax breaks and subsidies from Republicans. However, it doesn't look like the Dems will get out in front on the gas price issue either. Conservatives are even taking the lead on the "Scooter" Libby issue by framing the indictment as bitter "criminalization of Conservative politics." Why don’t the Progressives take the gloves off? Conservatives have.
 

It can scarcely be considered an "extraordinary circumstance" when an at least nominally conservative President, with a conservative Senate, nominates a conservative to the Supreme court. Annoying as hell to liberals, maybe, but not the slightest bit extraordinary. You don't like it, try winning some elections.

I suspect the attempt to fillibuster any nominee who'd already been confirmed to the circuit court level would be regarded by enough of the Republican gang members as a violation of the pact, to make the nuclear option feasible again.
 

I suspect the attempt to fillibuster any nominee who'd already been confirmed to the circuit court level would be regarded by enough of the Republican gang members as a violation of the pact, to make the nuclear option feasible again.

Right, because there is no difference whatsoever between a Circuit Court judge and a Supreme Court justice in terms of being bound by precedent.

Annoying as hell to liberals, maybe, but not the slightest bit extraordinary. You don't like it, try winning some elections.

I agree. Lifetime appointment to the third branch of government should be a purely majoritarian process, as the Founders intended. George Washington won the election! Rutledge should be confirmed! And election-winner George W. Bush picked Harriet Miers, who therefore deserves an up-or-down vote on the floor of the Senate.

So, anyway, given that Bill Clinton won the 1992 and 1996 elections, it would have been a shame if, purely hypothetically, Orrin Hatch had handed him a list of acceptable Supreme Court nominees, while holding up over sixty of his other judicial appointments. It would have been a shame if a core group of Republican senators had attempted to filibuster two of Clinton's judicial nominees in 2000. Luckily, all of that only happened in reality, not in brettland where we all live.

Or perhaps IOKIYAR is in the preamble to the Constitution, and I just missed it.
 

Cause I feel like I'm the worst,
so I always act like I'm the best.
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