Friday, September 09, 2005

Handicapping the Next Supreme Court Nomination

   Despite indications that the President is in no immediate hurry to nominate a successor to Justice Sandra Day O'Connor in the days following the death of Chief Justice William H. Rehnquist, armchair oddsmakers are already weighing potential members of the field.

In yesterday's Wall Street Journal, Manuel Miranda names some of the top contenders. I present his list (along with my own comments):

The women

Edith Jones: Highly unlikely. She has stated in the past that Roe v. Wade was wrongly decided and should be overturned. When John Roberts did it, he was stating the position of his client, the George H. W. Bush administration; Judge Jones did so in a talk articulating her own personal opinion. The potential confirmation battle could be summed up in one word: bloodbath. The president can't afford that now.

Priscilla Owen: Unlikely. Her (two) nominations for her seat on the Fifth Circuit were sufficiently contentious that any leverage gained from the compromise by the fourteen moderates in the Senate as an indication of Judge Owen's qualifications for the federal judiciary would be lost should she be put up for the Supreme Court.

Janice Rogers Brown: See comments for Judge Owen; they apply here, too. Additionally, there is enough of a libertarian streak there that most senators would see in her jurisprudence something they don't like. A tough sell.

Maura Corrigan: The most likely woman to be nominated for the job (which might not be saying much), she is still a virtual unknown outside of Lansing. Fourteen years of appellate judging experience, including a term as the Chief Justice of the Supreme Court of Michigan, but all of it at the state level. Senators may also object to her legal pedigree, tradition being what it is. The University of Detroit has produced fine lawyers for years, but outside of that city it does not necessarily have the same cache as Harvard, Stanford, and other sources of multiple Supreme Court Justices. That her name was only floated for the first time on the day of the Roberts nomination might suggest there is more here than idle speculation.

The Hispanics

Emilio Garza: Moderate probability of nomination. He is percieved as more conservative than Attorney General Alberto Gonzales, which would please social conservatives. However, his record is considered "undistinguished" by some; if the nominee comes into the Judiciary Committee with anything less than a "Well Qualified" rating from the ABA, expect the Senate Democrats to decry the nominee as lacking.

Danny Boggs: Moderate chance of nomination. Perhaps the most conservative judge to predate the George W. Bush administration on the otherwise fairly liberal Sixth Circuit. Raised a few eyebrows when, in his dissent in a University of Michigan affirmative action case, he flatly accused then-Chief Judge Boyce Martin of judicial misconduct in holding the en banc petition until after two Republican appointed judges took senior status, rendering them ineligible to hear the case. This could cause some inquiry into his temperament, especially since the court Rehnquist left behind was by all accounts the most collegial in generations (Justice Scalia's diatribes notwithstanding).

Raoul Cantero: Incomplete. Don't know enough about him to comment since I am not terribly familiar with the Florida Supreme Court.

The senators

Jeff Sessions: Not a chance. The advantage to nominating a senator to the Supreme Court is that fellow senators will extend certain courtesies to their colleague, easing the confirmation process. Somehow, I don't think that this notion would be enough to prevent the Senate Democrats from making a case that someone who was previously found unqualified to be a District Court judge probably should not be confirmed to the Supreme Court. Sure, there is a lot of room to kick the tires on that argument, but a short slogan like, "Still Disqualified," would keep the liberal interest groups' ad expenditures down.

John Cornyn: This even scares me a little. Given the statements that Sen. Cornyn has made on the floor about judges in the past year, I can only shudder to think about what gems would appear in his opinions. Whatever value he accrued as the attorney general of Texas and as a supreme court justice in that state was lost through some irresponsible rhetoric on his part.

Mel Martinez: The last person named to the Supreme Court without having any judicial experience was William Rehnquist. In 1971. Yeah, the conventions for judicial nominees have changed quite a bit in the last generation and a half. This seems the least likely nominee on the whole list.

Suffice to say, I am willing to bet that the nominee will likely be none of these. Look for Michael McConnell's stock to rise in the next couple of weeks. A judge on the Tenth Circuit and a former professor at the University of Chicago, he has the admiration of scholars across the political spectrum and may present a confirmation that is only slightly more difficult than that of John Roberts.


Blogger Kevin said...

Why does the nominee have to be a judge? There have been plenty of legislators that have been justices throughout U.S. history. It would be easier for the public to get behind a nominee if more was known about him (or her). Then again, maybe I have just answered my own question.

1:34 AM  

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