Nomination imminent? News and analysis
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On the one hand, Republican senators who felt uncomfortable about the now-withdrawn nomination of White House Counsel Harriet E. Miers appear to be eager to return to the support of the President in filling the vacancy that will come with the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.
Confirm Them says Alito out, Sykes, Williams and Wilkinson in the mix. Apparently Spector has some bad history with Alito. See http://www.confirmthem.com/?p=1788, comment 76
Comment by HJoe — October 29, 2005 @ 10:58 pm
NB: In the sixth paragraph, you write: “…to convince their own moderate to conservative Democratic colleagues that either Alito or Scalia will endanger civil liberties…”
I imagine that should read “…either Alito or Luttig…”
Comment by hmommsen — October 30, 2005 @ 4:13 am
I’ve posted before on what some have deemed my “conspiracy theory” of Bush stacking the SC for his future appearance. If correct, it would seem that Luttig would fit my theory most accurately based on his recent decisions, notably Padilla. If it is Luttig, it’ll be bloody.
Comment by Stella — October 30, 2005 @ 11:23 am
I’m also inclined to think that the nominee will be Luttig, and for the reason Stella asserts. The only thing Bush really cares about is his own power, and Luttig is on record supporting a virutally limitless Executive.
Of course this same logic suggests that J. Harvie Wilkinson would also be acceptable to the White House.
Comment by Ian — October 30, 2005 @ 3:17 pm
I think that the first two nominations, Roberts and Miers, may have been more about expanding the conservative base, or even Bush just picking people he liked.
Although the Republicans would certainly like to bring the Latino voter into their fold, I’ve had my doubts all along that Gonzales would ever be a nominee– and despite what Bush is rumored to have said about it. Why? Too alienating to the GOP base. In addition, Bush strikes me as the kind of guy who would promise a pal like Gonzales a piece of cheese like a SC nomination, at least to keep him loyal and motivated, but not with any clear intention of keeping the promise. Notice how Bush gives almost everyone around him a nickname, and the names are usually deprecatory. Standing alone, that doesn’t conclusively mean anything about what kind of guy Bush is, but, I think that it’s the kind of thing that more tends to show that a person doesn’t take others seriously, and has a patronizing attitude toward them– even if he thinks he doesn’t.
If Bush et al were trying to play to the middle with the Roberts and Miers nominations, it backfired on them with the Miers nomination. Now, what he has to do is more like circling the wagons. He has to deal with political reality: the influence that his party’s base constituents have over their various national representatives. He ran straight into the problem I think he was trying to avoid by not nominating Gonzales.
Comment by Swan — October 30, 2005 @ 11:03 pm
Whether it’s Alito or Luttig will depend in part on how the Republicans feel about the filibuster thing- Alito for easy confirmation, or Luttig for rapprochement with the GOP in general. The Republicans really may not see a fight over the filibuster as such a big deal, as more of liability for them than it is for the Dems– although the polls don’t exactly reflect that assessment. The Republicans may say, “Well, the hell with it.” It sounds like Bush and the Republicans do want to fix up the very public fissure they just experienced. My uninformed guess is Luttig.
Comment by Swan — October 30, 2005 @ 11:17 pm
On further consideration, it seems Luttig would be the least wise decision. Wouldn’t he have to recuse himself from several GWOT cases, thus poking a serious hole in my conspiracy theory? What about his clerking for Scalia?
It seems playing to the base under the current administrations situation would be a very bad move.
Comment by Stella — October 31, 2005 @ 6:51 am
ABC calls it: Alito
http://abcnews.go.com/Politics/wireStory?id=1265604
Comment by Stella — October 31, 2005 @ 6:59 am