Blue Mass Group has this post offering one liberal’s postive view on the Alito nomination. The post includes commentary from Katherine Pringle, a partner in a New York law firm who is also a progressive Democrat clerked for Judge Alito.

Law Dork has this post responding to concerns about Judge Alito’s membership in the Constitution Project’s Sentencing Initiative.

Judge Alito is a Princeton alum, here is the Daily Princetonian’s article on his nomination.

F/K/A has this post on Alito and anti-trust law.

Here is the majority opinion and Judge Alito’s Concurrence/Dissent in Planned Parenthood v. Casey, 947 F.2d 682 (3rd Cir. 1991). Thanks to FindLaw for the html versions.

Today we filed a brief for respondents in Bank of China v. NBM, LLC, No. 03-1559. The brief was prepared with the students of the Stanford Supreme Court Litigation Clinic. The case presents the question whether a plaintiff in a civil RICO case predicated on allegations of mail or wire fraud must prove reliance on the defendant’s fraudulent misrepresentations.

Blog Coverage of the Alito Nomination:

ACSblog has this post on his life as a litigator.
Think Progress offers this perspective with Alito’s views on women’s right, civil rights and other issues.
Election Law Blog has this post on why Judge Alito will not be confirmed.
The Patry Copyright Blog has this post on Alito and copyright law.
Tax Prof Blog rounds-up the press coverage of the nomination.
Law Dork comments on the fact that Bush emphasized Judge Alito’s credentials in his speech this morning.
Here is Underneath Their Robes’ take on the nomination.
Confirm Them, a collaborative weblog organized by RedState.org, has this post on Alito and Casey.
PrawfsBlawg has this post on how the Alito nomination will galvanize and unite both the Republican and Democratic parties, just not in the spirit of bi-partisanship.
Also on PrawfsBlawg Matt Bodie has this post on how even with Judge Alito’s nomination the Miers debacle actually helps Democrats.
Here Michelle Malkin rounds-up the news and blog coverage of the nomination.
On Concurring Opinions, Dave Hoffman asks, whether or not Alito is the business friendly nominee.
The Volokh Conspiracy has this post on Alito and Planned Parenthood v. Farmer. In the opinion he concurred in a judgment striking down New Jersey’s partial birth abortion statute.
Sentencing Law & Policy has this post asking whether Alito will continue with the Constitutional Project’s Sentencing Initiative.
Ann Althouse has this post on Alito and the Family Medical Leave Act.

UPDATE: The First Amendment Center has posted this analysis of Judge Alito’s First Amendment jurisprudence.

In related news:

Roll Call has this article on the fact that the timeline for Alito’s confirmation process is uncertain.
Balkinization has this post on Griswold, Roe and superprecedents.
UPDATE: On Concurring Opinions Daniel Solove responds to Balkin’s piece on superprecedents.
Sentencing Law & Policy has this post on the court’s orders from today.

Here is the Alliance for Justice’s statement on the nomination.
Here is Planned Parenthood’s statement on the nomination.
Here is Justice at Stake’s statement on the nomination.

Finally, here is Wikipedia’s bio of Judge Alito. It includes an extensive case history.

The Supreme Court is showing some interest in a case that tests the scope of First Amendment protection for college and university newspaper editors and reporters. On Oct. 27, the Court asked for a response to the appeal in Hosty, et al., v. Carter (docket 05-377). The petition had been scheduled for the Court’s consideration this week, but now will be put off awaiting the response.

The case has attracted filings by the Student Press Law Center, the Association for Education in Journalism and Mass Communications, and other rights and education organizations.

The case reaches back to the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier. The Court ruled there that school officials may regulate the content of a student newspaper that is a part of the curriculum, but that decision involved a student publication at the high school level. The Court, in footnote 7, said: “We need not now decide whether the same degree of deference is approopriate with respect to school-sponsored expressive activities at the college and university level.”

That comment lies behind the appeal in Hosty. The case involves two editors and a reporter of the Innovator, a student newspaper at Governors State University in University Park, Ill. After the newspaper published a series of articles that were critical of university policy and personnel decisions, the dean of student affairs, Patricia Carter, told the company that printed the newspaper not to print any editions without prior approval of a university administrator.

The students sued in federal court, claiming a violation of their First Amendment rights by what they deemed a “prior restraint” by Dean Carter. The District Court ruled that the dean could not take “adverse action against the newspaper because of its content.” That Court said that the Hazelwood decision did not apply to the college level. The Seventh Circuit, in a 7-4 en banc decision, ruled that applies to subsidized student newspapers at the college level, too. The decision concluded that Dean Carter had qualified immunity to damage claims.

After the students filed a petition in the Supreme Court on Sept. 16, Dean Carter waived her right to respond. The Court last week asked for a response, to be filed by Nov. 28. This does not assure review by the Justices, but it does indicate an interest in the question at stake.

(NOTE: The Student Press Law Center has a post on Supreme Court nominee Samuel A. Alito’s decision in July 2004 that “sided with students in at least one First Amendment case during his tenure as a federal appeals judge.” The post, with a link to that decision, can be found here.)

“I want my lawyer!”

If there is one piece of wisdom every law student knows, it’s that these should be the first words out of your mouth if you’re ever in trouble with the law. Once you say that, the conversation with the police is over until your lawyer is present. No ifs, ands, or buts. Right? Well, not quite.

In Edwards v. Arizona, the Court first laid down its rule that once a suspect is arrested and read her Miranda rights, if she invokes her right to counsel, police may not continue interrogating her without counsel present. However, the Court left open one exception. The police can continue interrogation if (and only if) the suspect herself reinitiates the interrogation process.

But what counts as self-reinitiation? And in particular, what happens if the police briefly slip up, make an unlawful post-invocation statement, and despite their efforts to undo the damage, the suspect ends up expressing a willingness to discuss the case? How can we tell whether the suspect’s decision to speak was self-reinitiation, or actually a response to the short-lived unlawful interrogation? These are the questions with which the Court will wrestle in Maryland v. Blake, which will be argued tomorrow.

Kathryn Grill Graeff, Assistant Attorney General of Maryland will argue for petitioner. James A. Feldman, Assistant to the Solicitor General, will argue on behalf of the United States as amicus curiae in support of petitioner. Kenneth W. Ravenell of Schulman, Treem, Kaminkow, Gilden & Ravenvell in Baltimore will argue for respondent. Petitioner’s merits brief and reply brief can be found here. The Solicitor General’s amicus brief in support of petitioner can be found here. A publicly available version of respondent’s brief could not be located but is available to Westlaw subscribers at 2005 WL 1900329.

Read the rest of this entry »

The Supreme Court again Monday took no action on the case testing the constitutionality of the military tribunals set up to try terrorism suspects on war crimes charges — Hamdan v. Rumsfeld (05-184). The Court also took no action Monday on seven new appeals seeking to challenge the Texas congressional redistricting plan that allowed the GOP to take control of that state’s House delegation. The cases test the constitutionality of redistricting that is solely aimed at giving one party an advantage — partisan gerrymandering. The state had declined to respond to those appeals.

Here is the Orders List.

The Court did agree to hear four cases, including two sequels to its landmark ruling in Crawford v. Washington, excluding out-of-court statements not subjected previously to cross-examination. The new cases involve the admission of crime victims’ “excited utterances” shortly after a crime has been committed. One involved a 911 call by a victim, the other a victim’s statement when officers came to her home to investigate a domestic fight. The new cases are Davis v. Washington (05-5224) and Hammon v. Indiana (05-5705). The Court agreed to hear both cases, but did not consolidate them for hearing; they will thus be heard back-to-back in a two-hour session.

The other newly granted cases involve an issue of immigration law and an issue of patent law.

The Court agreed to hear Fernandez-Vargas v. Gonzales (04-1376) to clarify the legal rights, if any, that an alien has if he or she was deported and then reenters the U.S. illegally. The specific issue is whether an alien in that situation can apply to stay in this country, if his or her re-entry came before April 1, 1997, when a new immigration law took effect taking away returnees’ rights.

In the patent case, Laboratory Corp. of America v. Metabolite Laborities, Inc., et al. (04-607), the Court granted review of one of three questions presented. The case asks the Court to clarify the legal standard for patentability for a medical process. The question granted involves whether a patent may be granted on a process for detecting a scientific relationship between a medical test result and a medical condition in a patient — in other words, whether a natural correlation between a scientific fact and a medical condition can be patented, or whether that is a phenomenon of nature that cannot be patented.

In another major patent law case, the Court asked for the views of the U.S. Solicitor General on Federal Trade Commission v. Schering-Plough (05-273). That case tests whether it is a violation of federal antitrust law for the maker of a brand-name drug to pay a potential maker of a competing generic drug to delay putting that alternative drug on the market. The Court had a similar issue before it last term, but denied review after the Justice Department said that the lower court there had gone too far in finding a “per se” violation of antitrust law in such a deal. In the Schering-Plough case, the 11th Circuit ruled that neither a rule-of-reason nor a per se mode of analysis was apprropriate in an antitrust case involving patents. There is no time limit for the Solicitor General to respond. (Justice Stephen G. Breyer is recused in the case.)

The Court issued unsigned opinions deciding summarily two pending criminal cases.

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Moving to rebuild his conservative political coalition and hoping to shift the Supreme Court toward the Right, President Bush on Monday selected Circuit Judge Samuel A. Alito, Jr., as his nominee to succeed Justice Sandra Day O’Connor. The President’s announcement and Judge Alito’s remarks can be found here.

Bush, a President who has refused repeatedly to govern from the center, maintained that approach in selecting a judge who is well known as a committed conservative.

Liberal observers of the Court immediately pointed to a handful of Judge Alito’s opinions on the Third Circuit as indications of just how conservative they expect him to be. Among those cited, for example, by americanprogress.org were these: 1991, supporting abortion restrictions, in the Planned Parenthood v. Casey decision that later went to the Supreme Court and led to the partial reaffirmation of Roe v. Wade; in 1997, in Bray v. Marriott Hotels, seeming to endorse a limited view of minorities’ job rights; in 1991, in Nathanson v. Medical College, appearing to embrace tougher standard for asserting disability rights; in 2000, in Chittister v. Department of Community and Economic Development, finding that Congress had gone too far in passing the Family and Medical Leave Act; in 2004, in Doe v. Groody, embracing broader police search power, including strip searches; and in 2004, Dia v. Ashcroft and Ki Se Lee v. Ashcroft, taking a hard line against immigrants’ rights.

Alito has a lengthy resume, filled with strong indications that he is qualified professionally. Those who know him personally, and those who have served with him and appeared before the Third Circuit, have said he is an even-tempered individual. Some expect him to attempt to become a consensus-builder on the Supreme Court, and to be less aggressive in advancing his conservative views than Justice Antonin Scalia is known to be.

The President’s announcement stressed Alito’s lengthy career in the law, and 15 years as an appellate judge, which marked a stark contrast with the thin list of similar accomplishments by Harriet E. Miers, the White House Counsel whose nomination to the Court was withdrawn last week after a severe assault by the President’s most conservative followers.

As expected, Democrats immediately signaled a hard fight against Alito’s nomination, with backup support from an array of liberal activist organizations. Senate minority leader Harry Reid, Nevada Democrat, said in a statement that this nomination “requires an especially long hard look by the Senate” because of the demand by conservatives that a “radical” to their liking be named.

In what is expected to be a primary “talking point” among Democrats, Reid said: “Justice O’Connor has been the deciding vote in key cases protecting individual rights and freedoms on a narrowly divided Court. The stakes in selecting her replacement are high.”

One of the liberal groups that has long spoiled for a fight with Bush over a Supreme Court nomination, People for the American Way, promised a “massive national effort to defeat Alito’s nomination” because he “would dramatically shift the balance on the Court.”

Conservative organizations, intent on having an identifiably conservative replacement for O’Connor, will be mounting an equally strong national effort, to support Alito’s confirmation. The American Center for Law and Justice, for example, praised the President for fulfilling a promise “of choosing nominees to the Supreme Court who are in the mold of Justices Scalia and Thomas.” The ACLJ is expected to be one of the more active groups in pushing this nominee.

CNN is reporting that Judge Samuel Alito will be announced as President Bush’s pick to replace Justice O’Connor.

Other news organizations have the same report. Television networks have been alerted to the planned announcement by the President at 8 a.m. Eastern time, and other reporters with solid sources at the White House are giving the same name: Alito.

UPDATE: It is official. Our coverage of Judge Alito is here.

On Monday, the Court will hear its second case in two years concerning whether the federal government may abrogate state sovereign immunity using its Article I bankruptcy powers. Central Virginia Community College v. Katz, No. 04-885, will be one of the Court’s first significant federalism cases since the death of Chief Justice Rehnquist, who frequently cast the fifth vote to preserve state power against that of the national government. Most of the debate on Monday, however, may center on whether the Court should reach the sovereign immunity question at all. The Court declined to address abrogation after granting certiorari on it in Tennessee Student Assistance Corp. v. Hood, and the respondent is asking the Court to sidestep the issue again in Katz.

Virginia Solicitor General William E. Thro will argue for petitioners. Kim Martin Lewis of Cincinnati, Ohio, will argue for respondent. The briefs are available here.

The petitioners, four state-run schools, challenge the Sixth Circuit’s holding that Congress may strip states of their sovereign immunity when it legislates under the Bankruptcy Clause. In Katz, the trustee of a bankrupt bookstore chain filed adversary proceedings under federal bankruptcy law against three community colleges and the Virginia Military Institute. The suits seek the recovery of preferential transfers — payments that the bookstores made to the schools shortly before filing for bankruptcy — in addition to other money that the trustee claims the schools owe to the chain. The trustee also seeks to bar any claims by the schools for debts that were incurred before the bookstores filed for bankruptcy.

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The Solicitor General has filed the Government’s reply briefs in:

No. 04-1084, Gonzales v. O Centro Espirita Beneficiente Uniao do
Vegetal (to be argued this Tuesday);

No. 04-1152, Rumsfeld v. FAIR;

and

No. 04-1203, United States v. Georgia

Most of the briefs in these three cases, as well as in No. 04-623, Gonzales v. Oregon, and No. 04-1144, Ayotte v. Planned Parenthood, are collected here.

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.

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.

Read the rest of this entry »

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.

The Calendar on the right side-bar is now up and running again.

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.

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.

The Court has posted the Hearing List with the arguing counsel for the November sitting.

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.

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.”

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.

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.

Read the rest of this entry »

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.

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.

Read the rest of this entry »

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?

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.