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I love the palace intrigue over who will retire and who Bush will nominate. It's a political junkie's dream come true. As I said earlier. I think in addition to those three that Erick mentioned, Justice Stevens is a strong possibility based upon his current age. You know he must have been cursing to himself when Bush got re-elected. You know he was like "damn I thought Kerry could beat this guy. I was looking forward to a few good years in retirement, but now I have to beat the mortality tables and try to hang on for another four years".

       One trivia question for the readers of RedState...what's the most number of SC retirements in four year span? Is it four?

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It all sounds realistic.  Very realistic.

So if Gonzales is being saved for Ginsberg, then Dubya would have to appoint a woman to the O'Connor seat.  It probably wouldn't fly to appoint a couple of white guys.  So I think we'll see some male/female combo of Luttig, Roberts, Jones, and Clement.

If Dubya really does want to make confirmation easier, he may go with Cornyn as the male and/or Owen as the female.  Cornyn would likely have an easier time for reasons I mentioned in another thread, while Owen was explicitly cleared via the Gang of 14 and filibustering her would allow for the nuclear option.

If Gonzales is really in next year, though, Garza is out.

Unfortunately.

both go before the bi-elections. Ginsberg will "die" on the bench (not a far reaching possibility). Make sure the Senate is not lost before the bi's are over would be my advice. A third very well may not be in the cards this term.

And even if it were, there will be election casualties in the Senate for the decissions that must, and will be made in confirming people like Luttig & Clements. (unlikely not to put another woman in).

Gonzales on the other hand, must first survive a left-hand pre-nomination slapping that could forevermore ends any third seat they may have hopes for, should the left get the impression it will be him for any of the 3.

I think I recall it being three.

But I could be wrong.

I know both pretty well, Fred wouldn't have taken the position if he hadn't cleared it with Frist. A win reflects to the credit of everyone involved, a lesson from Reagan that not everyone has forgotten.

Everyone always says that Ginsberg is in bad health.  How do we <u>know</u&gt that?

Erick....great stuff.....WOW, this is junkie heaven....really appreciate your posts

Regarding Cornyn.....possibly being groomed for Frist's replacement?...Mitch McConnell comes off as too stern...otherwise, why didn't he get Frist's job to replace Lott?.....also on Cornyn...just seems being on the Judiciary Committee and simultaneously being the shepherd is too much....Danforth did it for Clarence but Danforth was not on the Judiciary Committee....and Danforth was a personal friend of Clarence.....I think Cornyn provides some very good input/reads on candidates Owen and Jones

The scenarios you outlined is similar to what I suggested in RedState last week, though I had Stevens leaving in disgust rather than Ginsberg for health.

With two Conservatives, for O'Connor and for Rehnquist, A.G.A.G. for Ginsberg looks pretty good.

A problem I can foresee in this scenario, though, is holding the Mod Squad -- Chafee, Snowe, Collins, Specter, Voinovich -- if it looks like the President will appoint a majority which might be willing to give the abortion matter back to the States.

Reid, Teddy, Schumer, Boxer, et al. will freak.

I doubt Stevens will retire in the next year. He might in 2008 or something, figuring Bush at that point would have little political capital remaining (and thus his replacement would have to be "mainstream"). Or he might hang on in the hopes Hillary wins in '08.

Bush probably knows Ginsburg will retire during his term, and that's when he will nominate Gonzales. First of course there is O'Connor and Rehnquist to replace... if he does a good enough job with those two, I won't even mind too much when he picks Gonzales later on.

Assuming Erick's sources are right (and they usually are), the end result of the three vacancies appear to be a Court that goes from 4 liberals, 2 mods, and 3 conservatives to 4 conservatives, 2 mods, and 3 liberals.  In other words, one liberal vote will turn into a conservative vote.

Observe:

Renny's conservative seat will be filled by a conservative.  Probably Luttig, Roberts, or Cornyn.  No change.  Still 3-2-4.

O'Connor's moderate seat filled by a conservative.  Probably Clement, Jones, or Owen.  Plus one for conservatives.  4-1-4.

Ginsberg's liberal seat is filled by Gonzales.  Plus one for the mods yields a 4-2-3 SCOTUS.

At that point, if Stevens dies before Bush's term is up, he'll have no excuse NOT to appoint another originalist.  Especially after the base reacts to Gonzales.

You don't. She has looked fine in all of her public appearances.

Rehnquist looks better now than he did in January.

Yes, Cornyn could be the WH's next pick for Maj. Leader.

Though they really didn't do so well with their last pick.

Then again, hindsight is 20/20.  I woulda picked Frist too back in 2002.

Anyway, Mitch McConnell reportedly has health problems (or his wife has health problems, or something) and he can't really give 110 percent to the job.  Which is why he's not the heir apparent.

Santorum is going to have an uphill battle holding his Senate seat.  And even if he does win, he's much more a Whip figure than a Majority Leader.

George Allen would be good IMO, but he's got 2008 on his mind.

So yes, Cornyn may be in the works for heir apparent to Frist.

Not for me, but I think Owen-Cornyn-Gonzo is too Texan for much of the country.  It makes drawing caricatures that much easier.

Is a term of almost infinte adaptability.  I've known a lot of people who were in "bad health" but were capable of doing very surprising things, day in and day out.  We won't know until we know; she'll tell us when she's ready, I suppose.

I'm a bit relieved to see the specualtion about Gonzalez fade a bit, esp. after his statement yesterday that he had basically taken himself off the table.  The Center for American Progress is awfully glad, too.  Personally I thought in terms of institutional politics it would be a bad decision to move Gonzalez from Atty.Gen. to SC so quickly, and he really never figured into my worries about the "battle" and his visit to Iraq cemented that for me.  I don't think he's going anywhere, and some of the people who have been so vehement against him should cool their heels.  You guys worry too much, I think.  On the other hand, it means we're going to have to fight like hell, so tell me -- which is better?

Suppose Garza and a non-Texan male are named to fill O'Connor and Rehnquist's seats.  I can easily see Luttig-Garza or Roberts-Garza.

In that case, Bush pretty much has to pick a woman as his third nominee, to fill a seat vacated by Ginsburg or Stevens.

So if we see Garza picked, that will indicate that Gonzales is either off the list, or that he's up to bat for the fourth vacancy (God willing!), not the third.

Taft served only one term but appointed 5 justices.... And actually became the Chief a decade later when Harding named him...

Garza and Gonzo won't both end up on the Court.

I know it's crappy ID politics, but there's probably only room for one "Hispanic seat."

So if one is appointed, the other won't be.

And there are no supporting arguments for this theory, I'm just throwing it out there because I believe it will happen, based on a gut feeling:

Bush is going to appoint the blandest person he can appoint to the court for his first pick to replace O'Connor.  She/he may be a conservative, and probably a strict constructionist, but will be the blandest of the picks in terms of their record.  Whoever gets appointed is not going to be someone anyone can easily attack or defend, instead it's going to take each side of the big ditch weeks to figure out exactly how to portray the blandness.

Having to fight in politics?  Anyone who doesn't have the stomach to go to the mattresses for SCOTUS nominees shouldn't be involved in politics.

I've heard some stuff that Justice Ginsburg is mulling retirement.  Is that bunk or is it legit, do u know?  It would be cool if all 3 stepped down at the same time!

Willing to fight.  I think it's inevitable, and we're all going to have to fight.  I should have expressed my doubts about Gonzalez being nominated earlier:  I really didn't think it was going to happen, and I am 99.99% sure now that it is not going to happen.  

It's not a racial thing, I know it's "Gonzales" I just find that since I first read it that way I always hit the Z instead of the S.

is fun, but I sincerely hope that the President actually follows through on his claim to seek a strict constructionalist/formalist.  I sincerely hope he actually calls on future members like Scalia, rather than an actual conservative.

If he chooses based on political attitudes, he is just choosing 'judicial activists' in his own mind, and falling to the accusations laid upon him.

Does she have something that would prevent her from sitting on the court.  Thus forcing her hand were retirement is concerned.  Or is it just that she is getting older and along with the normal health issues that go with that makes her consider stepping down.  I'm just waiting for the left to make this huge appeal to her to stay on the court.  You know... Bush will roll back civil rights, create a facist society.. blah blah blah  

If her health is not that serious I could see something like that giving her the inspiration she needs to stay on until the left gets Hillary elected.  I find this scenario very troubling.

I've seen very few comments on this name, so I'll throw it out for reactions - Alex Kozinski-9th circuit.

I agree with the "too much Texas" comments, at least for the rest of the country to accept easily.

It seems that a DC outsider, with a long history, may be easiest to confirm. First, it may limit the creative Borking from the other side, i.e. if there is a 20 year paper trail simply making stuff up seems less credible, and second, it further highlights Schumerianism if it extends to someone completely separated from recent, or any, inside politics. Alas, that's a dilemma for the DC Circuit candidates - very close, very visible.

Finally, a Kozinski type has an undeniable record and story, a la J. Brown.

So what conservative/RS tests does Kozinski, fail, and are their similar candidates in the outer circuits/state sup. courts of similar stature?

This is entertaining!

I think it would be interesting if it turned out to be the biggest thing that never happened.

I can hear the questions and remarks now;

"So is it true Justice (fill in the blank), that you ate the taco with American cheese and French sour cream? And, you can't see how we may be concerned about your predisposition to mix things up and how that could destroy the Consitution itself?"

"Your no man/woman, your a culinary terrorist."

Then he would be appointing Virginians!

Y'all will adjust to an all Texas SupremeCourt.  

Imperial Texas has always favored moderate colonial policies for the lesser states.

It's as likely as anything else.  And it might have some benefit to the President.  I don't know the records of all the justices that Conservatives would find appropriate, but I am increasingly leaning toward the idea that he's going to pick Mr. or Mrs. Boring.

"outreach" is a theme.

Nobody wants to appoint token, but two is not tokenism, it is a trend.

My concern is that politics will trump principles during the Supreme Court nomination process. Bush stated during his campaigns that if given the opportunity to nominate a SC Justice he would pick someone like Scalia or Thomas. However, referencing sitting justices in a "someone like them" standard leaves a lot of wiggle room.

For example, if Bush nominates someone like Gonzalez, perceived by many to be a moderate on social issues, the President can defend his choice by explaining that Gonzalez is much closer to the conservative wing of the Court than he is to liberals like Ginsburg or Souter.

Bush has also said he would nominate a strict constructionist. That standard is a little better, and Gonzalez certainly wouldn't fit that mold, as he has been quoted as saying the Constitution is what the SC says it is. The point is that any description of an ideal judge that fails to list positions on specific issues runs the risk of being misapplied to a nominee for political purposes.

My fear (which I hope is unfounded) is that Bush will throw a bone to his conservative evangelical base by nominating a strong conservative for the first SC opening, while reserving later appointments for "wild card" picks like Gonzalez.

On the other hand, my hope (which I hope is well founded) is that Bush will see this nomination process as what it really is: an opportunity to turn back the tide of injustice that has swept away our constitutional foundation through judicial activism and radical reintrepretation. I hope he sees this as an integral part of his legacy, a chance to tilt the court back towards protection of basic freedoms such as the right to life and the right to acknowledge the Judeo-Christian heritage of our nation.

save one reservations about that theory. Neither Rehnquist or O'Connor have guaranteed replacements that do anything to change anything from what it currently is. From what I see, the left doesn't want a concession on either, and would rather pick up a spot against Rehnquists' seat and further feel O'Connor's position is their "right" to have.

Just one will be hard enough, two gives a better chance to get at least one. The real risk is the nuclear option to get them through. Yes they get through (which I actually believe is going to happen) but there are political casualties and control of the Senate is the prize the Democrats seek, already knowing that the court fight is over. The show will be, no less, impressive.

Or, the political cops could come in and say, "alright, nothing to see here, everybody go home, move along." This could indeed tilt the Dem's and confuse them at first, because they'll realize, they might have just gotten what they wanted. The next prize awaits if it can be defeated, not sure about that, might be risky.

I love the idea, really is a good take on it, but I'm still keeping my eye on that Molotov cocktail lit in the corner.

What's more important, the legacy or the party to Bush? He'll pick the legacy and the party will take it's blows during the election and I think the Dems know that. So their big thing will be the unseen prize, the Senate.

I ask you this. Should Bush pick a Luttig, and all hell breaks out, do you really believe the Dem's won't filibuster? and then or course we know the outcome to that (Alamogordo). And when that happens the piper will come calling, should his choice be, "legacy".

In the end, anything that takes this and makes it a little lighter in discussion, is welcomed.

Kozinski's a libertarian and very unpredictable.  The man's a genius, but unacceptable on social issues.

The guy I'm wondering more why he's not on any lists at all is Frank Easterbrook; he's younger than Wilkinson or Garza and around the same age as Jones and Clement, he's brilliant and second only to Posner in terms of prominence and prestige among appellate judges, he's been on the bench more than two decades after doing groundbreaking academic work.  And I could be wrong but I don't think he has Posner's or Kozinski's social-liberal baggage.  I believe he was in the running for the seat that went to Scalia.  I assume his main drawback is the sheer weight of his paper trail, which is comparable in scale to Bork or Ginsburg and even beyond that of McConnell.  Still, it's sort of sad not to see him get a closer look.

Assuming your sources are conservative Republicans, I doubt they have the same inside info on Ginsburg as on Rehnquist or O'Connor.

I believe Ginsburg has had cancer, as O'Connor did.  She's been small and frail-looking for years, so it's hard to speculate just looking at her.  I'd be very surprised if she or Stevens hung it up before the 2006 elections.

You know, I was doing some research the other day and happened across an opinion written by Judge Easterbrook. I hadn't read his work before, but I found myself asking the exact question you have just asked. I even checked his birthdate; I believe he's 57. Which, as you point out, is the same age as Garza...

From what I see, the left doesn't want a concession on either, and would rather pick up a spot against Rehnquists' seat and further feel O'Connor's position is their "right" to have.

In fact, they feel that all of the seats on the Supreme Court are their "right" to have.  If anything, they see the court as much too ideologically imbalanced in favor of the "wingers" as it already is.  They're trying to pull the President into making a choice that directly contradicts his base of support, and he's not going to do that, in my estimation.  I really never considered Gonzales a candidate, despite all the hubbub about him.  I will give anyone here $100 if he actually gets nominated who wants to bet against me, but I want 5:1 if you're willing to make that bet.  

I think the strategy for Bush right now, the best of all possible worlds, is to avoid the nuclear option and still keep the base engaged and happy to the greatest extent possible, while minimizing the chance of a filibuster to save the nuclear option for the next retiree.  If I were him, that's what I'd be doing.  Put someone good, if bland, into O'Connor's seat, keep the nukes warm in case you need them, and do what Jay Cost suggested by getting this first battle over with as quickly as possible.  

I still believe that the most important thing psychologically in a multiround fight is to win the first round decisively but with the least amount of sweat possible.  Save your energy and concentrate on the hard fights in the later rounds.  We still have three more years after this one.  

Is Luttig really someone so "exceptional" that the Dems. might honestly believe they should waste their filibuster on him?  Please excuse my ignorance on this, because I haven't followed his record as closely as I should have.

I don't think Bush is going to sell out the party in favor of his legacy.  He's not proven so far to be that kind of person.  I really don't believe he's as interested in his legacy as Bill Clinton is, or Carter was, or even Reagan.  I think he's a much more humble man than that, come what may.

We need him for the 9th Circuit! If he gets poached from the Ninth then that means our Circuit out here is that much more liberal. Bush needs to get on the ball and nominate some more judges out here fast. I think there are at least three vacancies right now out here.

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If you're reading him for the first time, you are just touching the tip of the iceberg.  Like Scalia, he's both incisive and entertaining.  This interview is a good sample.

Bush's legacy is the war.  He knows that.  The rest is gravy, history-wise, and will neither tarnish him if his war leadership is viewed well (see:  Harry Truman, who presided over a lousy economy and all sorts of domestic nonsense and appointed hack politicians to the Supreme Court), nor salvage him if it is viewed poorly (see: LBJ, whose domestic policies remain well-regarded by liberal historians).

Alice Batchelder has sat on the Sixth Circuit for over a decade and is one of the most conservative circuit judges in the federal court system.  She's smart, principled, writes well, and (perhaps most importantly for her) keeps a low profile.  She attended small schools and has lived in a quaint Ohio town her entire adult life.  Hardly anyone knows about her outside the Sixth Circuit, but if the White House looks, they'll like what they see.  They'll get an attractive female who's just as smart and conservative as Jones, Owen, or Brown, but without the red-meat factor for the left.  Her only drawback?  She's 60 years old, which is three or four years older than all the other female names being bandied about save Owen.  But she looks like she's in her early fifties, and remember, women on average live seven years longer than men, so relative to the men, she's in her early to mid 50's.

Is in the Washington Post right now talking about the decision.  She says a lot of interesting things, including supporting Gonzales (tacitly), but here is the whopper.  You see, it's all just a ruse.  It's all meaningless, and it all depends on who is looking at it.  Don't you see?

A strict constructionist, or an activist judge, is in the eye of the beholder.  And, uh, it's, it's a term that politicans use, uh, to say what they're nominee, or their candidate is not, and what the other guy's candidate is.  Um, the people that they disagree with are "activist judges", the people that they want are strict judges.

Now, this is interesting, because National Public Radio is commonly believed (or at least it is reputed to be) a relatively nonpartisan source of news, but Nina evidently thinks that there is a very powerful "us" and an equally vehement "them", and you know which side she's on if you watch the interview.

You might also be able to find it here.

No, NPR isn't partisan.  Neither is the Washington Post.  And neither is Terry Neal.  

Totenberg played a key role in the Anita Hill allegations, broadcasting them when they might have been aired and resolved privately, as was done for Breyer's failure to pay FICA for a household employee and Ginsberg's failure to report gifts while a judge on the D.C. Circuit.  And Totenberg didn't even get all the facts correct (e.g. see Ken Foskett's new book, Judging Thomas), portraying Hill's case as more solid than the FBI report concluded, which said it was a he said/she said.

Of course, that all suggests she's a liberal shill.

Plus nominating more judges to the 9th will tip the votes en banc, making the 9th much more restrained than it has been.  Although Dem appointments outnumber GOP in absolute terms, things are much closer in en banc voting.  That'll bring the Dems to the table on splitting the monstrosity.

By the way, the last word in the quote is "constructionists" not "judges."  I apologize.

But that kind of rigorous analysis is why Nina gets the big bucks at NPR and commands big thick chunks of cash log get sawed off and given to her for speaking engagements at law school commencement ceremonies all over the country, by the way.  In places like Chicago, for instance.

Totenberg is a liberal shill, I have some people that I think you'd like to meet and tell you otherwise.  Including me.

Prepare to meet our Southern Baptist Overlords.  Stock up on the beer and get the dancing out of your system now.

Van Devanter     retired 6/2/1937

Sutherland         "     1/17/38

Cardoza            "     7/9/38

Brandeis           "     2/13/39

Butler             "     11/16/39

McReynolds         "     1/31/41

That's 6 in one term (back in the day, the new presidential term didn't start until March, thus 3/37 until 3/41).

This led to the phrase of Roosevelt packing the court.

if someone from the 9th Circus is picked (and confirmed), Bush gets to name a replacement for that opening on the 9th too.

The Southern Baptist Overlords want to steal my penumbra?  

I say dancing is a way of petitioning Congress for redress and so protected as long as you dance towards DC.

More importantly:  If we don't get an all Texan court, how are we going to make the argument that taking the Cowboys from that Jones person is a public benefit/public use?

has got to be close to what the ultimate outcome would be. And something I would follow. But I refuse to think of the Dems as many of their members like to think of Rep's, they are not stupid. Someone by now, must have figured out the numbers, there is no way for victory in the SCN battle, they lose in every scenerio. This mean the Rep's must willingly give up one of the post to lose anything in this regard.

The administration however, must also know this, and see that the supposed real prize will be the political "radioactivity" from using the nuke.

I think your correct about Bush's actions to come, but the Dem side I see as probably incorrect. Let me put it this way, I can see the numbers and they must be able to see them too, If if it were my choice, I'd let go of the SCN battle altogether, and inflict as much damage for that process as possible in the form of public outcry for using the nuke. That manuvuer could crumbly the entire "middle" support base and hand it, on a platter, to the Dem's.

I'm looking beyond the court fight, because I don't see the fight. The absolute best the Dem's can do is political gorilla warfare on this, they must know it too. For me, it's far less of an actualy guess, although it does remain that in the end. In the 2004 election I got 1 state wrong, (New Mexico) for the Red/Blue split. I do get paid nicely for these, as my accuracy has been at times pretty good, I won't mention the disaster predictions I have also made (I was younger then).

If the candidate is a moderate, they may back off in forcing the use of the nuke, but that serves no political end and will be a loss all the same at the end of the day.

My concern "is" the nuke and I believe you'll see it used right away and be willing also to put a 5:1 split on that outcome. When these games open, susbstance many times loses out to power.

I pray however, for your outcome.

I know Nina (she knows my family better). And she definitely considers me to the right of her, and I'm pretty liberal as it is, but I could never see her as a lefty. She is so middle, I'm not sure Einstein himself could calculate a spit so evenly. An observer of enormous capability? Yes I could agree with that definition.

TalkingHead, in this place (RedState), an evaluation on someone could very well turn out to be in conflict with someone here that actually knows people in politics and the person within any particular dicussion. In this case, I understand your speculation, but it's not accurate and a little unfair portrayal of someone I bow to when it comes to political observation, and there are very few of those.

Like the above I am not sure about this eather.  I have Crohn's Disease, Spondalitis, and inflammitory arthritis.  My doctors are amazed that I work 50+ hours a week.  Have an easy disability case.  Just look at is as something I have to do. Im sure Ginsburg is capable of doing it unless it's something terminal.

If you know her personally, you might have a different view of her.  I know her personally, but not face-to-face personally; my knowledge is a bit more secondhand.  Let's put it this way:  I admire her, and I think she's a very influential person, but in the past I've gotten the impression that on certain issues she tacks pretty hard to the liberal point of view, and the ideological balance of the Supreme Court in the context of Roe v. Wade is one of them.  

I don't mean it as a slur against her, because other journalists tack hard in the other direction, but she is very influential.

Under Kelo,one could simply pass legislation with a finding that transferring ownership of the Cowboys to a competent [double meaning intended] owner will increase the odds of a winning season, thereby improving the public morale.  The improved public morale will likely lead to improved public revenue, as happy people spend more and work harder.

So saith the legislature, so shall it be done.