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Saturday, October 29, 2005
Nomination imminent? News and analysis
09:21 PM | Lyle Denniston | Comments (8) | TrackBack (0)
Several news organizations were saying Saturday night that President Bush is expected to announce a new nominee to the Supreme Court either on Sunday or Monday, and that the President has narrowed the choice to two federal circuit judges: Samuel A. Alito, Jr., 55, of the Third Circuit in Philadelphia and J. Michael Luttig, 51, of the Fourth Circuit in Richmond. (As usual, the How Appealing blog is on top of these news developments.)
The choice of either of those two would signal that the President was more concerned about drawing his most conservative followers back into the fold than he would be about averting a major fight with Senate Democrats by putting forward a "consensus nominee."
If either of those two is nominated (and some of the news accounts suggested that the final decision had not yet been made), Senate Democrats are expected to mount a vigorous opposition campaign.
Two recent changes in the dynamic of Senate review of Supreme Court nominations would be in play.
On the one hand, Republican senators who felt uncomfortable about the now-withdrawn nomination of White House Counsel Harriet E. Miers appear to be eager to return to the support of the President in filling the vacancy that will come with the planned retirement of Justice Sandra Day O'Connor. Loyalty to the President on this, particularly at a time when he is under siege in other fields, will have a strong pull for many in the GOP. Conservative organizations, without a doubt enthusiastic about either Alito or Luttig on the basis of thoroughly conservative records on the bench, will be ready to get their promotional machinery going again.
On the other hand, the conservative opposition to Miers, over the question of her judicial philosophy and her views on social issues, has given new legitimacy to a thorough Senate inquiry into the philosophical leanings of any new nominee. Democrats are expected to take full advantage of that opening, and their strategy will be threefold: first, to probe deeply into the jurisprudence each judge has applied on the bench in order to prepare searching questions of the nominee; second, to convince their own moderate to conservative Democratic colleagues that either Alito or Luttig will endanger civil liberties so the 44 Democrats must stand together in opposition, and, second, to persuade moderate Republicans -- particularly from New England -- that either Alito or Luttig would help steer the Court sharply to the Right, in ways that those Republicans' constituents would not like. The Democrats could not stop either nomination without Republican support.
Looming questions are whether the Democrats will mount a filibuster, whether that would cause them to lose some of their own more conservative members who are uncomfortable with judicial filibusters, and whether the Senate's Republican leadership would try to force through a new rule forbidding judicial filibusters -- invoking the so-called "nuclear option" that probably would bring the Senate to a standstill.
If the Senate approved Alito or Luttig, either probably would become closely aligned on the Court with Justices Antonin Scalia and Clarence Thomas. Since either of them is probably more conservative than Chief Justice John G. Roberts, Jr., and definitely more conservative than Justice Anthony M. Kennedy, it would remain uncertain whether a solid new five-Justice majority would form to achieve the goal of the President and his conservative followers to bring about what might look very much like a conservative judicial revolution.
If the new nomination does come swiftly, it is expected that Senate Judiciary Committee hearings would be set to begin in early December.
Monday's Argument: Volvo Trucks v. Reeder-Simco
08:25 PM | Darien Shanske | Comments (0) | TrackBack (0)
Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., No. 04-905, will be the first case argued on Monday. This case involves two questions about the application of the Robinson-Patman Act:
1. Whether an unaccepted offer that does not lead to a purchase – so that there is not "discriminat[ion] * * * between different purchasers" as the statutory language contemplates - may be the basis for liability under the Act.
2. Whether the Act permits recovery of damages by a disfavored purchaser that does lose sales or profits to a competitor that does not purchase from the defendant, but does not lose sales or profits to any purchaser that "receives the benefit of" defendant's price discrimination.The petitioner will be represented by Roy T. Englert, Jr. The respondent will be represented by Carter G. Phillips. Thomas G. Hungar will argue on behalf of the United States as amicus curiae in support of the petitioner.
The Eighth Circuit opinion can be found here.
The petitioner's brief can be found here.
The petitioner's reply brief can be found here.
The petitioner's supplemental brief can be found here.
The government's brief can be found here.
The respondent's brief can be found here.
Continue reading "Monday's Argument: Volvo Trucks v. Reeder-Simco" »
Blog Round-Up - Saturday, October 29th
03:40 PM | Liz Aloi | Comments (0) | TrackBack (0)
On Judge Alito as a potential court nominee:
Here is the Volokh Conspiracy.
Here is Underneath Their Robes.
Here is Sentencing Law & Policy.On other potential nominees:
Here is Prawfsblawg asking whether Judge McConnell can "hate" Bush v. Gore. The Volokh Conspiracy has this post on McConnell and Bolling v. Sharpe. Judge McConnell wrote, in discussing the 1954 case that "[t]he suggestion that the Due Process Clause of the Fifth Amendment prohibits segregation of public facilities is without foundation."
The blog also has this post, discussing the 2nd Amendment jurisprudence of Judge Alito, Judge Luttig, and Michigan Supreme Court Justice Maura Corrigan.
On Miers:Professor Bainbridge discusses the need for the President to win conservatives back post-Miers.
Nomination Watch has this post arguing that the Miers confirmation process should have continued.In related news:
This week the Legal Affairs Debate Club asks if the Supreme Court confirmation process needs to be fixed. Debating the issue is Richard Davis, Professor of Political Science at Brigham Young University and author of Electing Justice and Michael Comiskey, Associate Professor of Political Science at Penn State University, Fayette and author of Seeking Justices.
Ann Althouse has this post on the fight in the Senate the next nominee may face.
Court Calendar
02:32 PM | Tom Goldstein | Comments (0) | TrackBack (0)
The Calendar on the right side-bar is now up and running again.
Media Advisory
01:22 AM | Liz Aloi | Comments (0) | TrackBack (0)
No, its not for the nomination announcement, but the court website now has this media advisory posted for oral arguments in Scheidler v. NOW (04-1244) and Ayotte v. Planned Parenthood of Northern New England (04-1144). The court makes this type of announcement relatively infrequently; last term only six cases warranted special notice to the press.
Friday, October 28, 2005
Nomination Predictions
09:59 PM | Marty Lederman | Comments (4) | TrackBack (0)
Tom’s Jan-Greenburg-prompted prediction that the President will nominate Judge Alito comes on something of a hot streak: Way back in November, he predicted that John Roberts would be the most likely nominee to replace Chief Justice Rehnquist; and immediately after her nomination, he went out on a limb that few others did at the time, and predicted Harriet Miers would not be confirmed.
While we’re at it, permit me to sheepishly add that I, too, predicted a Roberts nomination back in November (in a comment to Tom’s post, which apparently no longer exists online), and again in May –- see comments here -- one of the rare times in my life when I've publicly made a correct prediction.
The point here isn't to toot the blog's horn. I wish I could say that the Roberts predictions reflected some great foresight or acumen on our parts -- but the truth is that, once Judge Gonzales became Attorney General, Roberts was the logical and obvious choice for this Administration, basically for the reasons Tom gave in his initial post (reasons that seem fairly obvious in retrospect, now that everyone has seen more of Roberts).
For what it’s worth, in that same prediction back in May, Alito was my second choice. Again, that was only because it’s who I would pick if I were in the President’s shoes and shared what I assume are his commitments and interests. So, perhaps I’ll be fortunate to go two-for-two. Or two-for-three, anyway: After Roberts’s confirmation, I insisted (to all who would listen) that the President would nominate a White House Counsel to replace Justice O'Connor: a choice based on loyalty, trust, sticking-with-what-he-knows, and the assurance that the Counsel would be a safe vote in favor of Executive authority, especially on issues of national security. I was right about everything except which White House Counsel Bush would choose. (I also predicted Astros in six.) Oh well.
November Arguments
08:56 PM | Tom Goldstein | Comments (0) | TrackBack (0)
The Court has posted the Hearing List with the arguing counsel for the November sitting.
Action on Long-Pending Petitions
03:59 PM | Tom Goldstein | Comments (0) | TrackBack (0)
As at the beginning of every Term, the Court has been re-listing a variety of petitions from week to week. Some will produce summary reversals, others dissents from the denial of cert., others possibly grants (as a 4th vote is persuaded to vote to hear the case), and others nothing at all.
It is possible to figure out from publicly available information what those cases are and when the Court is likely to act. It's also possible to glean from the questions presented what the most likely outcome is.
In docket order, here is the best bet for what will happen in the petitions I feel at liberty to discuss:
04-1538, Kane v. Espita - the question is
Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) when it granted habeas relief solely on the basis of its own circuit precedent that an incarcerated defendant who chooses to represent himself has a Sixth Amendment right of access to legal materials to assist him in preparing a defense, even though five other circuits have held that no such right exists and this court has never addressed the issue?The case has been re-listed three times and the record requested. Given that the petitioner is the government, the case comes from the Ninth Circuit, and it presents a habeas question, the best bet is a summary reversal Monday.
04-9499, Eberhart v. United States - I don't have the petition for certiorari in this pauper case, but based on the opinion below it likely involves whether the requirements of Fed. R. Crim. P. 33 are jurisdictional. The case has been re-listed three times. Without the papers, it is impossible to accurately guess what will happen.
05-37 and 05-45, Decena v. San Jose Charter of the Hells Angels Motorcycle Club - the questions presented are:
(1) Does the shooting of a vicious guard dog by a police officer, while serving a high risk search warrant for evidence of murder, result in a violation of the Fourth Amendment when there is no evidence of any viable alternative? (2) Was the law clearly established such that police officers should have known that, in serving a high risk search warrant for evidence of murder, the Fourth Amendment is violated by shooting vicious guard dog that stands between officers and residence to be searched? (3) Did the Ninth Circuit correctly apply the qualified immunity standard?The case has been re-listed three times. Again, the government is the petitioner and it's from the Ninth Circuit; the question is qualified immunity. The best bet is a summary reversal some time soon.
05-101, Bradshaw v. Richey - The questions presented are:
1) Can a federal court hearing a habeas corpus challenge to a state criminal conviction substitute its own interpretation of state law in place of the state's highest court on the issue of whether state law allows use of transferred intent to satisfy the intent element of a criminal offense? (2) In a federal habeas challenge to a state conviction, does the Antiterrorism and Effective Death Penalty Act prevent a federal court from undertaking its own de novo review of an ineffective assistance of trial counsel claim, and from granting the writ based on facts that were not presented to the state courts?The petition has been re-listed twice. Again, with the state as petitioner on a habeas question (this time from the Sixth Circuit, which is watched with nearly as jaundiced an eye as the Ninth) look for a summary reversal some time soon.
05-184, Hamdan v. Rumsfeld - This is the well-known Hamdan case, which has been re-listed twice. The best bet is a dissent from the denial of cert. at some point.
Blog Round-Up - Friday, October 28th
01:30 PM | Liz Aloi | Comments (1) | TrackBack (0)
On Miers:
On ThinkProgress John Podesta has this post on whether or not the "right" holds female Supreme Court nominees to a different standard than male nominees.
PrawfsBlawg has this post by Matt Bodie on "Miers Myths," debunking some of the reasons leading to her withdrawal.
UPDATE: Fellow PrawfsBlawger Dan Markel reponds here.Volokh Conspiracy Blogger Todd Zywicki's pick for Miers replacement is Edith Jones.
Here is Sentencing Law & Policy Blogger Doug Berman's take on the SCOTUS name game.
ACSBlog has posted bios of potential Court nominees.
Underneath Their Robes also has an extensive post-mortem of the Miers nomination.
UPDATE: UTR also has this post on speculation about who the SCOTUS nominee might be.
In other news:
The National Law Journal has this article on post-Crawford excited utterance cases. Two petitions for certiorari (Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705) that raise confrontation clause issues -- in the context of excited utterance exceptions to hearsay rules -- are pending before the court. Both are listed for action by the court at its Oct. 28 conference.
Justice Scalia reviewed Law’s Quandary by Steven D. Smith in First Things, the Journal of Religion, Culture and Public Life.
The George Washington Law Review will be hosting a symposium on the Rehnquist Court this weekend. Details here.
Legal Theory Blog has posted details for an upcoming syposium at the University of Pennsylvania Law School, hosted by the Law Review on "The Chief Justice & the Institutional Judiciary."
No Nominee Today?
01:18 PM | Amy Howe | Comments (0) | TrackBack (0)
Scott McClellan has apparently told the White House press corps that there will be no announcement today regarding judicial nominees. Wonkette has the full pool report.
Alito
09:29 AM | Tom Goldstein | Comments (9) | TrackBack (0)
Jan Crawford Greenburg - who I think has always been ahead of the pack in on the nominations issue - reports that the White House is focused on Judges Luttig and Alito, and potentially Judges Owen and Williams.
Of these candidates Judge Alito seems most likely to me, and he is my prediction. Judge Alito would energize the President's conservative supporters. But he would not be as much of a fight as the others. Luttig and Owen, in particular, raise the serious prospect of a filibuster and it seems unlikely in the current environment that the Administration is anxious to have that fight. It seems to me that the pressure to nominate a woman is considerably lessened now, and the focus is on getting someone confirmed. Judge Alito will be grudgingly confirmable to many Democrats once they look at his record.
Anisha Dasgupta's quick profile of Judge Alito - copied from the former S. Ct. Nomination Blog - is after the jump.
Thursday, October 27, 2005
Hamdan
06:49 PM | Tom Goldstein | Comments (0) | TrackBack (0)
It's extraordinary how much attention the Hamdan petition has been getting as it has been relisted by the Court. I don't ever remember seeing a case continue to get this kind of attention at such a late stage. Some new pieces and posts are here on Balkanization (linking it to the Miers resigantion), here on Slate, and here in the Yale Daily News.
Commentary: What's next?
10:37 AM | Lyle Denniston | Comments (13) | TrackBack (0)
Just 24 days after President Bush nominated Harriet E. Miers for the Supreme Court, the politics of replacing Justice Sandra Day O'Connor has changed markedly. The President appears to have less flexibility about what he does next, and the moderate Republican senators probably gain some power to determine the fate of a new nominee. The Democrats, on the other hand, may not realize much advantage, if any. Much will depend, though, on what the mood is in the White House as the selection process reopens.
As Miers' nomination got into deeper trouble, some observers who are close to the President had said that it would come close to wrecking this presidency if he were forced to back down on Miers. That perhaps was an exaggeration, but the President, already newly vulnerable because of the hurricane disasters, the Iraq war, and the criminal investigation focused on figures high in his government, is perceived to have less political authority than he had even at the beginning of this month. He may not be in the mood, or have the "political capital," to wage another costly battle over the Supreme Court seat.
At the same time, however, the President undoubtedly is angry about having been forced to give up on Miers. His announcement (a decision he attributed to Miers' preference, not his) was restrained, but reflected keen disappointment. Because it was the most conservative elements of his political following that brought this about, he may be determined not to surrender by going to a nominee more clearly in favor with that sector.
Still, the best way to taunt that group -- naming Attorney General Alberto Gonzalez, unpopular with many conservatives -- may not be available to him. Gonzalez's nomination would run into the same problem that the President cited in withdrawing Miers' name: his unwillingness to give senators access to internal White House legal papers. The attorney general was White House Counsel just ahead of Miers, and he had more tenure and more influence in the job than she did, and senators surely would demand access to materials showing Gonzalez's role in the Executive Mansion, just as they did with Miers.
Continue reading "Commentary: What's next?" »
Strange But True: Miers Submits Her Revised Questionnaire
10:34 AM | Marty Lederman | Comments (2) | TrackBack (0)
When the deadline came and went for Harriet Miers to submit her revised answers to Senators' questions yesterday, many took it as a reliable sign that her nomination was to be withdrawn. They were right about the outcome, but apparently not about cause and effect -- at the very same time that Ms. Miers was asking the President to withdraw her nomination, she was submitting her revised questionnaire to the Judiciary Committee. The cover letters to Senators Specter and Leahy are dated yesterday; and I'm hearing that the answers were delivered to the Judiciary Committee "very late last night."
A case of completing the historical record? Hedging her bets? Some other explanation? What, if anything, does this portend for her blog?
Padilla Petition
10:07 AM | Marty Lederman | Comments (1) | TrackBack (0)
Thanks to How Appealing for posting the petition in No. 05-533, Padilla v. Hanft. I posted some preliminary thoughts on the oddities of the court of appeals' decision here and here.
Update: The case has been docketed as 05-533.
Here are the questions the petition presents:
"1. Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?
"2. Did the Fourth Circuit err in concluding that Petitioner's continued detention as an 'enemy combatant' was a 'necessary and appropriate' use of force under the Authorization for Use of Military Force ('AUMF'), Pub. L. No. 107-40, 115 Stat. 224 (2001)?"Padilla's lawyers passed up a chance to ask the Fourth Circuit for en banc review, got that Court to issue its mandate early, and filed their petition in the Supreme Court more than a month before a final deadline. This was part of an obvious strategy to get the case acted upon for possible review in the Court's current Term. The government response is due Nov. 28. If usual practices are followed, the Court could grant or deny the case in January; a grant would put the case on the docket for decision this Term.
Miers Nomination Withdrawn
08:59 AM | Marty Lederman | Comments (5) | TrackBack (0)
The President has accepted Harriet Miers's request to withdraw her nomination, explaining that the nomination was of less importance to him than the ability to keep confidential certain White House documents (principally involving Executive authority in the current wars). Miers's letter to the President is here.
And here's the President's statement:
Today, I have reluctantly accepted Harriet Miers' decision to withdraw her nomination to the Supreme Court of the United States.I nominated Harriet Miers to the Supreme Court because of her extraordinary legal experience, her character, and her conservative judicial philosophy. Throughout her career, she has gained the respect and admiration of her fellow attorneys. She has earned a reputation for fairness and total integrity. She has been a leader and a pioneer in the American legal profession. She has worked in important positions in state and local government and in the bar. And for the last five years, she has served with distinction and honor in critical positions in the Executive Branch.
I understand and share her concern, however, about the current state of the Supreme Court confirmation process. It is clear that Senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House - disclosures that would undermine a President's ability to receive candid counsel. Harriet Miers' decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers - and confirms my deep respect and admiration for her.
I am grateful for Harriet Miers' friendship and devotion to our country. And I am honored that she will continue to serve our Nation as White House Counsel.
My responsibility to fill this vacancy remains. I will do so in a timely manner.
Wednesday, October 26, 2005
War powers quiz for Miers
05:58 PM | Lyle Denniston | Comments (1) | TrackBack (0)
The chairman of the Senate Judiciary Committee has notified Supreme Court nominee Harriet E. Miers that he is prepared to examine closely at her nomination hearings how she would handle, as a judge, a wide range of issues on warmaking power under the Constitution. Chairman Arlen Specter, Pennsylvania Republican, outlined his plan in a detailed letter to Miers on Wednesday. (Thanks to How Appealing for the link.)
Specter's letter attempts to get around claims by President Bush that senators want to probe inside the decision-making process at the White House. Instead of asking Miers how she may have advised Bush on any of the topics the letter raises, Specter asked in most of his questions what "jurisprudential factors" would guide her on the Supreme Court in examining issues of presidential and congressional power to take the country to war.
The letter also asked Miers what standard she would apply on the Court in deciding whether to take herself out of cases "on any subject where you have advised the President." And it asks what assurances she could give that she would be independent on the Court "and not give President Bush any special deference on any matter involving him which might come before the Court."
In the questions raising specific issues about war powers, Specter put the nominee on notice that he would seek to explore most of the currently live controversies over waging war, including the war on terrorism and the war in Iraq.
Continue reading "War powers quiz for Miers" »
No delay in BlackBerry ruling
04:54 PM | Lyle Denniston | Comments (0) | TrackBack (0)
A Canadian company that makes the hand-held BlackBerry devices, allowing users to get wireless access to e-mail, messaging and Internet links, failed on Wednesday to get a delay of a ruling that it infringed on patents for integrating electronic mail with wireless networks. Chief Justice John G. Roberts, Jr., refused, without comment, to temporarily block a Federal Circuit ruling that could lead to a new court order banning sales of BlackBerry devices in the U.S. and stopping wireless e-mail services to BlackBerry users. (Roberts order came in denial of a stay application filed by BlackBerry's maker, Research in Motion, Ltd., application 05-A-357.)
Research in Motion has been locked for years in a patent dispute with NTP Inc., a Virginia-based company that holds patents on technology that enables e-mail systems to be integrated with wireless networks, giving markedly greater mobility to communication via computer. RIM contends that the patents should never have been issued, arguing that the technology is only a tweaking of "prior art." Besides fighting in court, RIM has been pursuing challenges to the NTP patents at the U.S. Patent Office.
RIM is planning to appeal to the Supreme Court in a challenge to an August ruling by the Federal Circuit, upholding some but not all of NTP's claims of infringement. Among other issues the company is planning to raise is the application of U.S. patent law to its wireless system even though some parts of that system function only in Canada. The Federal Circuit has given a fairly expansive interpretation of the reach of patent laws beyond U.S. borders -- not only in the RIM-NTP case, but also in a major dispute between Microsoft Corp. and the University of California, which has won a $520 million infringement award based on global sales of Microsoft's Windows operating system software with its Internet Explorer browser. (The Supreme Court may act as early as next Monday on an appeal by Microsoft challenging the damages award, and the beyond-the-borders application of U.S. patent law. That case is Microsoft v. Eolas Technologies, docket 05-288.)
In the BlackBerry case, the Federal Circuit ruling in August did not finally resolve the patent dispute. It upheld several infringement claims, overturned others, and ordered a U.S. District judge in Virginia to reconsider a royalty award that had continued to build up, reaching over $200 million, and to reconsider the order that essentially would shut down BlackBerry's business in the U.S. When the case returns to that lower court, NTP executives have said, they will ask for a renewal of the injunction against BlackBerry services in this country. In the meantime, however, those activities may continue. About 75 percent of the company's business is done in the U.S.
After a jury verdict against Research in Motion, the two companies reached a settlement of their dispute, but that has since broken down in disagreement between the two sides. The impact of the infringement dispute on that settlement may also be explored when the case returns to District Court.
Recent Hamdan Developments
03:56 PM | Amy Howe | Comments (2) | TrackBack (0)
No. 05-184, Hamdan v. Rumsfeld, has been re-listed for the Court's conference on Friday, October 28. Today, 450 law professors issed a statement urging the Court to grant cert. in Hamdan to address what they regard as "foundational questions" involving "the relationship between the President's constitutional powers as Commander-in-Chief and the existing constitutional, statutory, and international rules and tribunals that govern the conduct of war." The text of the letter is available here; the list of signatories is available here; the letter transmitting the statement to Senators Specter and Leahy is available here.
Owen Bonheimer has this op-ed piece in this week's Legal Times (subscription required) in which he urges the Court to grant cert. in Hamdan because tribunals in Iraq are now relying on the D.C. Circuit's decision in Hamdan to allow the use of secret evidence. Bonheimer contends that "[l]eaving the D.C. Circuit decision unreviewed will foster a worldwide weakening of the fabric of international law," as "the Hamdan decision could serve as a precedent for other countries to violate the rights not only of Saddam Hussein and his admittedly unsympathetic cohorts, but also of our troops."
"Breyer's Big Idea" by Jeffrey Toobin
11:10 AM | Heather Lloyd | Comments (0) | TrackBack (0)
Here is Jeffrey Toobin's article from the Oct. 31 edition of The New Yorker.
Transcript in Physician-Assisted Suicide Case
02:46 AM | Marty Lederman | Comments (0) | TrackBack (0)
The Court has released the transcripts of the eight arguments from the first sitting of the Term, including that in No. 04-623, Gonzales v. Oregon.
For the historical record: The Chief Justice's first-ever comment in an oral argument (other than "The Court will now hear argument in IBP, Inc. vs. Alvarez and Tum vs. Barber Foods, Inc. Mr. Phillips."), was this remark to Carter Phillips in No. 03-1238, IBP, Inc. v. Alvarez: "So, your approach introduces, really, a third concept. You have the principal activities . . . -- either preliminary or postliminary -- and now you've got a third concept: integral. But . . . that's nowhere in the statute."
Tuesday, October 25, 2005
Blog Round-up - Tuesday, October 25th
02:20 PM | Liz Aloi | Comments (1) | TrackBack (0)
On the Miers nomination:
TaxProf Blog discusses the tax shelter opinions issued by the Locke, Liddell & Sapp while Miers was managing partner here.
Concurring Opinions has this post on whether or not blogs are influencing the Miers nomination. Debate Link tackles the same question here. PrawfsBlawg comments here. The posts reference this article from the National Journal's Beltway Blogroll.
Election Law Blog has this post on why Attorney General Gonzales will not be nominated to replace Harriet Miers.
TalkLeft has this post on whether President Bush is laying the groundwork for Miers' withdrawal.
Jack Balkin asks, "What should Democrats do About Miers?"
McBride's Media Matters has this post on 7th Circuit Judge Diane Sykes as a potential replacement for Miers.
In other news:
Crime & Federalism has this post on if there can be pro- and anti-government Justices.
CrimLaw has this post on Justice Scalia's use of the Rule of Lenity.
The Volokh Conspiracy has this post on ideology and Supreme Court voting patterns.
Monday, October 24, 2005
Commentary: The "Krauthammer factor"
09:00 PM | Lyle Denniston | Comments (2) | TrackBack (0)
Almost from the beginning, the Supreme Court nomination of Harriet E. Miers has been in trouble with prominent conservative columnists. It is by no means certain, however, that those writers are having an appreciable effect -- except perhaps in hardening the opposition among conservatives who have been similarly troubled. Over the weekend and on Monday, however, the beginnings of what might be called the "Krauthammer factor" seemed to be taking shape.
That factor can be distilled into a headline, the one that appeared atop Charles Krauthammer's column on Friday as published in the Washington Post: "Miers: The Only Exit Strategy." His notion of "a way out" was "irreconcilable differences over documents," leading potentially to Miers' withdrawal to save face for both the Senate and the White House. The documents he had in mind were, of course, the internal papers from Miers' work as a lawyer in the White House.
The first part of the "Krauthammer factor" emerged over the weekend: bipartisan calls by senators for access to those documents. The senators were making, in one way or another, the same point: that Miers' only experience with the kinds of issues she would face on the Supreme Court seems to have come during her White House roles, so senators must see those papers. Anticipating more such demands, Krauthammer said the documents were "essential" for the Senate if it is to judge Miers' nomination.
On Monday, the second part of the "Krauthammer factor" emerged: President Bush said, without qualification, that the senators would not be allowed to have access to those papers. In remarks following a Cabinet meeting, the President said: "Recently, requests...have been made by Democrats and Republicans about paperwork...out of this White House that would make it impossible for me and other Presidents to be able to make sound decisions....It's a red line I'm not willing to cross...[W]e are going to destroy this business about people being able to walk into the Oval Office and say, Mr. President, here's my advice to you, here's what I think is important. And that's not only important for this President, it's important for future Presidents."
This was not a first-time declaration by the President. From the outset of this Bush Administration, top officials -- especially, Vice President Cheney -- have maintained that the White House in recent years has lost too much control over presidential prerogatives, so the time had long since arrived for laying down that "red line" that the President said could not be crossed. That sensitivity, of course, is what lay behind the fight that went to the Supreme Court over the internal papers of Cheney's energy task force. And it was this sensitivity that led the White House to resist, successfully, demands for internal papers when the Senate considered the nomination of now-Chief Justice John G. Roberts, Jr.
Continue reading "Commentary: The "Krauthammer factor"" »
Sunday, October 23, 2005
Blog Round-Up - Sunday, October 23rd
04:13 PM | Liz Aloi | Comments (0) | TrackBack (0)
Concurring Opinions has this post on "How to Develop a Supreme Court Practice." The post cites to this article by Tony Mauro comparing the Supreme Court practice of Wilmer Cutler Pickering Hale & Dorr with that of Jones Day.
The Volokh Conspiracy has this lengthy analysis on the politics of the Miers confirmation. The blog also has this post on the likelihood of the Court granting cert in Musladin v. Lamarque. In that case, the Ninth Circuit granted federal habeas relief to a murder defendant on the ground that the victim's family wore buttons with pictures of the deceased during the trial.
Here Sentencing Law & Policy rounds-up recent Supreme Court related sentencing developments.
Here Professor Bainbridge comments extensively on this column by George Will against the Miers nomination.
On Balkinization Marty Lederman has this post on Miers an affirmative action. He discusses how one could explain how personal support of affirmative action and a conservative judicial philosophy mesh.
Liberty has this article on Chief Justice Rehnquist's legacy positing that, "The Chief Justice rests in piece. His legacy rests in pieces."