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Fri 17 Sep, 2004 05:41 am
Whichever candidate is elected president in November, he will appoint up to four new justices to the Supreme Court. I have read many articles mentioning this fact, and they often stress it in order to point out just how important this year's election is. So I would like to get an impression of the potential nominees on either side before the mud-fights in the press begin. But apparently I can't: few of the articles I mentioned -- in fact, none that I've read -- told me anything specific about whom the Democrats or the Republicans might nominate.
For the most part, I'm sure that's on purpose. Supreme Court appointments are inevitably partisan and frequently hostile, so it's obvious that neither side wants to harm their candidates' chances by naming their names too early. On the other hand, every field has its stars, every team wants their star judges appointed, and I bet that the legal community knows who the stars among the federal judges are on either side.
With this in mind, I have several questions for the legal experts who frequent this forum: Who, in your opinion, are the top four candidates a president Kerry would nominate? Who would be President Bush's top four choices? And where can I read some of the opinions they wrote so I get an impression of how they think?
I'm aware that you may not be able to answer these questions as precisely as I asked them. But I don't know anything about this subject yet, so any hunch you can give me would be helpful. Thanks!
Very cool!
That's
exactly what I had in mind, and I have lots of reading fodder for the weekend now. Thanks, Jespah!
-- T.
You're right, Thomas: candidates for the supreme court are never really known in advance. It's somewhat like candidates for pope: names are mentioned, but no one is actually running for office.
Jespah's links are the most extensive lists of potential nominees I've ever seen. The only person that has been mentioned frequently is Alberto Gonzalez, the White House chief counsel. He has, however, become embroiled in the "torture" memo debate, so his prospects are no longer as good as they once were. It's not surprising that, among the possible Bush nominees, are a number of judges from the 4th and 5th circuit courts: they are the most conservative federal appellate courts in the country. I imagine that a President Kerry would nominate judges from the 2d, 9th, and D.C. circuits, or perhaps judges from state supreme courts.
The question of potential Supreme Court nominees has become more urgent since I started this thread. And since many of the people on Jespah's lists are sitting judges in lower courts, I've been googling around for their names plus "delivered the opinion of the court" to get an impression of their decisions on constitutional laws. This Google search turned up decisions by the judges alright, but only few of them were cases bearing specifically on constitutional law. Does one of you know away to effectively narrow a Google search to constitutional law cases, or does an efficient search of that kind require a Westlaw account? (which I'm too stingy to buy)
Google isn't really your friend in this situation methinks.
If you know which judges you are looking for and what court they currently sit on you'd be better off, IMO, using Findlaw and searching the decisions of the appropriate court.
You can find the decisions of the District Courts and Courts Of Appeals through this page:
http://www.findlaw.com/casecode/index.html#federal
Once you select the court you want, you can do a search on the name you want in the "Full Text Search" option.
Thanks, Fishin! That looks a lot better.
Slate has another review of likely Bush nominees for the Supreme Court. It may not tell much new to the lawyers here, but it was interesting for me.
http://slate.msn.com/id/2121270/?nav=ais
George Bush will announce at 9pm EST today whom he will nominate to succeed O'Connor. The word is that it'll be
Edith Brown Clement.
Thomas: It looks like Judge Clement shares your views on the commerce clause:
Commerce Clause
GDF Realty Investments, Ltd. v. Norton, 362 F.3d 286 (5th Cir. 2004): Judge Clement joined Judge Edith Hollan Jones's dissenting opinion from the denial of rehearing en banc. The opinion argued that the Endangered Species Act could not be applied to protect a rare species of underground bug since this act of preservation was not connected with "any sort of commerce, whether tourism, scientific research, or agricultural markets."
Federalism
U.S. v. McFarland, 311 F.3d 376 (CA5 2002): A defendant who had been convicted of violating the Hobbs Act challenged his conviction on the grounds that the evidence against him was insufficient to establish a nexus to interstate commerce. Judge Clement joined Judge Garwood's dissent from the en banc opinion, arguing that Congress lacked power under the Commerce Clause to reach local robberies under the Hobbs Act.
Link
ABC News is saying (as of 6PM EST) that Clement has stated that she is NOT the nominee.
I guess we'll all know for sure in 3 hours...
It's Rogers. Here is an overview of his record, as copied and pasted from
the Slate article I linked to a couple of days ago. I hope to add links to the cases in question later today. (Edit: Just added some, but his "friend of the court" briefs are hard to Google. I would greatly appreciate any links to them that readers might PM to me.)
[b]John Roberts[/b]
[b]Age:[/b] 50
[b]Graduated from:[/b] Harvard Law School.
[b]He clerked for:[/b] Judge Henry Friendly, Chief Justice William Rehnquist.
[b]He used to be: [/b]associate counsel to the president for Ronald Reagan, deputy solicitor general for George H.W. Bush, partner at Hogan & Hartson.
[b]He's now:[/b] a judge on the U.S. Court of Appeals for the D.C. Circuit (appointed 2003).
[b]His confirmation battle:[/b] Roberts has been floated as a nominee who could win widespread support in the Senate. Not so likely. He hasn't been on the bench long enough for his judicial opinions to provide much ammunition for liberal opposition groups. But his record as a lawyer for the Reagan and first Bush administrations and in private practice is down-the-line conservative on key contested fronts, including abortion, separation of church and state, and environmental protection.
[b]Civil Rights and Liberties[/b]
For a unanimous panel, denied the weak civil rights claims of a 12-year-old girl who was arrested and handcuffed in a Washington, D.C., Metro station for eating a French fry. Roberts noted that "no one is very happy about the events that led to this litigation" and that the Metro authority had changed the policy that led to her arrest. (Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004).([url=http://pacer.cadc.uscourts.gov/docs/common/opinions/200410/03-7149a.pdf]PDF here.[/url])
In private practice, wrote a friend-of-the-court brief arguing that Congress had failed to justify a Department of Transportation affirmative action program. (Adarand Constructors, Inc. v. Mineta, 2001).
For Reagan, opposed a congressional effort?-in the wake of the 1980 Supreme Court decision Mobile v. Bolden?-to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act.
[b]Separation of Church and State[/b]
For Bush I, co-authored a friend-of-the-court brief arguing that public high-school graduation programs could include religious ceremonies. The Supreme Court disagreed by a vote of 5-4. (Lee v. Weisman, 1992)
[b]Environmental Protection and Property Rights[/b]
Voted for rehearing in a case about whether a developer had to take down a fence so that the arroyo toad could move freely through its habitat. Roberts argued that the panel was wrong to rule against the developer because the regulations on behalf of the toad, promulgated under the Endangered Species Act, overstepped the federal government's power to regulate interstate commerce. At the end of his opinion, Roberts suggested that rehearing would allow the court to "consider alternative grounds" for protecting the toad that are "more consistent with Supreme Court precedent." (Rancho Viejo v. Nortion, 2003) ([url=http://pacer.cadc.uscourts.gov/docs/common/opinions/200307/01-5373b.pdf]PDF here[/url])
For Bush I, argued that environmental groups concerned about mining on public lands had not proved enough about the impact of the government's actions to give them standing to sue. The Supreme Court adopted this argument. (Lujan v. National Wildlife Federation, 1990)
[b]Criminal Law[/b]
Joined a unanimous opinion ruling that a police officer who searched the trunk of a car without saying that he was looking for evidence of a crime (the standard for constitutionality) still conducted the search legally, because there was a reasonable basis to think contraband was in the trunk, regardless of whether the officer was thinking in those terms. (U.S. v. Brown, 2004) ([url=http://caselaw.lp.findlaw.com/data2/circs/dc/033069a.pdf]PDF here.[/url])
[b]Habeas Corpus[/b]
Joined a unanimous opinion denying the claim of a prisoner who argued that by tightening parole rules in the middle of his sentence, the government subjected him to an unconstitutional after-the-fact punishment. The panel reversed its decision after a Supreme Court ruling directly contradicted it. (Fletcher v. District of Columbia, 2004) ([url=http://caselaw.lp.findlaw.com/data2/circs/dc/015432a.pdf]PDF here[/url])
[b]Abortion[/b]
For Bush I, successfully helped argue that doctors and clinics receiving federal funds may not talk to patients about abortion. (Rust v. Sullivan, 1991)
[b]Judicial Philosophy[/b]
Concurring in a decision allowing President Bush to halt suits by Americans against Iraq as the country rebuilds, Roberts called for deference to the executive and for a literal reading of the relevant statute. (Acree v. Republic of Iraq, 2004) ([url=http://pacer.cadc.uscourts.gov/docs/common/opinions/200406/03-5232a.pdf]PDF here[/url])
In an article written as a law student, argued that the phrase "just compensation" in the Fifth Amendment, which limits the government in the taking of private property, should be "informed by changing norms of justice." This sounds like a nod to liberal constitutional theory, but Roberts' alternative interpretation was more protective of property interests than Supreme Court law at the time.
I am not sure I understand the abortion entry: Was he saying that a doctor at a federally funded hospital may choose not to talk about abortion, or that he may not choose to talk about it? The latter would strike me as repressive to the point of absurdity, the former as conservative in a non-alarming way. Otherwise, based on this description, I think I kind of like Mr. Roberts. I don't altogether agree with his constitutional view of civil rights, but it doesn't rise to the point where I have a serious problem with it. On the other hand, I certainly agree with his Commerce Clause and Takings Clause jurisprudence. Bush could have picked a much worse judge.
Thomas wrote: I am not sure I understand the abortion entry: Was he saying that a doctor at a federally funded hospital may choose not to talk about abortion, or that he may not choose to talk about it? The latter would strike me as repressive to the point of absurdity, the former as conservative in a non-alarming way.
The case was based on a federal rule stated that funds given to clinics under Title X of Federal Code could be "used in programs where abortion is a method of family planning." The clinics argued that they were being discriminated against. The USSC ruled that there was no requirement under Title X that the government fund them and that the government was free to decide to fund some clinics while not funding others. See the
decision for details.
I've yet to see anything that outlines exactly what his input on this case was. He was one of a team of 7 that argued the goverment's side of the case (Ken Starr was the lead).
What are the odds SD-O will change her mind about retiring? I can dream, I suppose.
When O'Connor resigned, the reason she gave was that her husband of 53 years is seriously ill and that she wanted to be with him for whatever time he has left. I believe her, so wouldn't expect that she'd `let down' her husband to pursue the chief justice job.
Like I said on bvt's topic, I bet Scalia is monumentally PO'd. It was pretty common knowledge that he wanted to be Chief Justice.
Oh? I thought Scalia was actually running for god.
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