Redstate

But not really surprising.  JRB would really be a statement.  I guess conservatives are still afraid to be conservatives.

Well you just made unlikely all the most talked about women - Owen, Brown, Jones, Clement.  There are other lesser known women, of course, like Sykes and Glendon (who's 67).

You haven't mentioned McConnell in a while, and I'm pretty sure from his past musings that he'd keep abortion as a Constitutional right and be semi-pro privacy rights.  I don't know why so many like him.

We know Bush interviewed Wilkinson, but he's 60 and open to some mild judicial activism from what I read.

Lewis F. Powell had not, unless I am mistaken, been a Justice prior to his nomination to the SCOTUS. Neither had William Rehnquist, nor had Arthur Joseph Goldberg.

Similarly, it was reported that Glendon got consideration last time.

So given that there is such a precedent, and given that Bush has supposedly given consideration in this direction previously, how about looking at another candidate who might fit the bill. Someone young. Someone who, like Roberts, had a distinguished record as a litigator before the Court. Someone conservatives would like.

What about Charles J. Cooper?

My take on this round is that the nomination will be a demographic one. President Bush has been beaten up lately about his attitude to Black folks in New Orleans and won't put another white guy in fromnt of the nation.

JRB is probably out, and Owens won't be brought out this soon. I'm convinced that Bush was sending a message that Gonzales was out when he made a joke to the press about him raising controversy.

That leaves the Ediths (Jones and Clement) with a few hispanic names. One thing in the favor of Clement -- she's from Louisiana (Baton Rouge, I think). Right now that's the way I would guess (although Edith Jones or an Hispanic name would be possible also).

One other thing to remember. This White House is extremely closed mouth on this issue. There won't be anything interesting coming from them, and therefore from the low level staffers around them. They put out very little information last time, and even put out a couple of head fakes to send people down the wrong alley. Expect the same this time.

Cornyn?

What we can see in contrast from the candidates you say are unlikely (Clement, Owen, Brown) and the candidate who has already been nominated (Roberts) is a combination of experience and distinction.

Roberts was widely considered very well qualified to sit on the Court.  Though his time on the DC Circuit was limited, his experience with the government and as a Supreme Court advocate was extensive and acclaimed.  Neither Clement or Owen have lots of experience in the federal judiciary, and only Janice Rogers Brown is considered to be a unique and powerful legal thinker.

Therefore, I think it more likely that Bush is looking for a candidate with similar qualifications to Roberts, and that narrows it down to Luttig, McConnell, and Jones.  Outside shots to Garza and Wilkinson.  Every one of these candidates has more experience in the federal judiciary than Owen and Brown (I think Clement and McConnell have been circuit judges about the same amount of time), and each is almost universally respected as distinguished minds with coherent judicial philosophies.  Garza and Wilkinson both have extensive federal judicial experience but their records have not generated any particular acclaim or regard.

So I think the nominee will be either Luttig, McConnell, or Jones.  I still think John Cornyn is a dark horse.

I'm probably wrong, but it's fun to theorize and try to connect the dots.

I am as conservative as tehy come on judicial nominations, but if it were up to me I would vote against anyone who actually wants to return to Lochner.  I don't want someone who invents conservative "substantive due process" any more than I want someone who invents liberal "substantive due process."  So if JRB believes in SDP, I don't know if I want her on SCOTUS

Is how completely comfortable you are in openly outlining a results-oriented jurisprudence: you want certain people nominated because you believe they will rule in a particular way in particular cases.

Isn't that what liberals get attacked for wanting?

Instead, why not just seek someone who seems to have a decent jurisprudential philosophy that you hope will lead in proper directions?

I guess conservatives are still afraid to be conservatives.

Yep. And I'm afraid it may take as many as 5-6 more GOP Senators before outstanding candidates like JRB can get through.

OTOH, if Bush "Souters" this, because he's afraid to rock the boat even with someone like Jones, then it's likely 5-6 Senators going the other way, if you catch my drift...

Erick.....it is Owen not Owens

Thought.....Doncha think W may seek some input from Roberts himself, especially if Roberts is so high respected?.....doncha think Roberts may put in a commercial for his fellow Reaganite and good friend, Michael Luttig?......would love to have a tape recording of the W/Roberts interview

We need to start our thinking with the `last round', since in so doing we

might be able to reconstruct the President's thinking then, replicate it

now, and more ably predict the pick:

    This is what we know:

    1) Last time around, the President was filling the O'Connor seat, with

the prospect of Rehnquist's retirement imminent. In other words: he knew

that he would get a chance to replace a conservative white male (CWM) later.

Roberts was clearly in consideration for Chief already then. Wilkinson and

Luttig, among other CWMs, were also available for CJ. If ever, then, there

was a moment to go for a diversity pick --woman, Hispanic, black-- this was

it. The First Lady wanted him to name a woman. O'Connor wanted him to name a

woman. Roberts could safely have been nominated for CJ later.

    But Bush did not make that choice. He bowed not to diversity, but gave

us a CWM. This suggests that Bush simply nominated the best person he met in

the selection process. The women, then, were beaten, on quality, by Roberts

(and possibly other men). There is no reason to think that Bush will

approach matters differently now: experience, at least, suggests that he

will pick a minority or a woman only if he believes that such person is

better suited than the qualified CWMs also in the running.

    2) We also know for sure that, in addition to Roberts, the President

interviewed four people, two of those being Joy Clement and Harvie

Wilkinson. We now hear from Erick that Joy Clement is out of the running,

which seems plausible. Clement has no paper record whatsoever to suggest she

is an originalist and her academic and other judicial credentials are not

strikingly impressive.

    Wilkinson was the only one who gave the press an account of his

interview with the President. We also know from his interview with the New

York Times that the President asked Wilkinson about his exercise habits

(obvious question since he, at 61, was the oldest candidate under

consideration) and that the President was dissatisfied with Wilkinson's

answer.

    The other two have not spoken publicly about their interview.

(Republican sources at the time indicated the other two interviewees were

Michael Luttig and Edith Jones).

    Bush, as every attentive reader of newspapers knows, is obsessed with

maintaining secrecy, not leaking to the press, promoting personal loyalty to

him etc. The surest way of killing off one's chances at the 2nd nomination

would be to blab to the media about your first interview without prior

permission. This suggests to me that, like Joy Clement, Wilkinson was told

by the White House that he was no longer being considered for future

vacancies, most likely due to his age. That's why Wilkinson felt free to

speak to the press about it. QED: Wilkinson is out of the running.

    3) This leaves us with Michael Luttig and Edith Jones, plus any

candidates that the President would not have to interviewed since he knows

them so well. Of all the plausible candidates only Gonzales and Priscilla

Owen (an old Rove/Texas contact-Bush used to socialize with Owen in her

house) fit that bill, and probably also John Cornyn (TX) and Larry Thompson

(former Deputy AG).

This leads us to the deduction that Emilio Garza, Samuel Alito, Michael

McConnell and Miguel Estrada were not among the serious candidates the last

time. (Janice Rogers Brown is obviously not a candidate; people who suggest

this in earnest understand nothing of Washington DC. It's a miracle that she

was ever nominated for the DC Circuit).

If we handicap those who clearly finished close to the top in the last round

we see the following:

    4) Edith Jones is a very outspoken conservative and has been publicly

very critical of Roe v Wade. Despite her qualifications and gender, that

makes her confirmation chances in the current political climate

questionable.

    5) According to Erick's information, Luttig didn't make a particularly

favorable impression on the President in the first round, not due to his

qualifications (they are extremely impressive), but due to his personality.

(Although we have no other sources for this, it would explain why Luttig was

passed over for Roberts twice already, first for the O'Connor seat, now for

the CJ seat, despite Luttig's much longer experience as a federal judge and

generally extremely impressive credentials). But it was indicated to Erick

that Luttig would be getting a second look now.

    That exhausts the original five. Perhaps it's true that Bush is

expanding his list. If so, let's handicap the others, beginning with those

who Bush knows well and might therefore have been competitive last time

around without us knowing it:

    6) Priscilla Owen does not have the stellar resume and academic

achievement that have propelled Roberts. She could be seen as a Bush/TX

crony, which the press won't like and she was very controversial when

nominated for the Fifth Circuit (and was only confirmed as part of the

Filibuster Deal, which may cut both ways). It's therefore unlikely she would

be nominated despite her gender. It's unclear what, other than age,

favorably contrasts her with Edith Jones, who herself, as indicated, is

probably too outspokenly conservative to be confirmed.

    7) Larry Thompson is reportedly in the President's favor. He is a friend

of Clarence Thomas and his personal background would provide for a

compelling story. His age (59), though, counts against him. As previous

Deputy AG he would have to recuse himself from several cases of crucial

importance to the Bush administration. He does not have any experience as a

judge. His current job (General Counsel for Pepsi Co), although impressive,

is the kind of corporate connection that doesn't help. His resume doesn't

seem to set him apart from more obvious candidates.

Then those who certainly didn't make the short list last time:

    8) Emilio Garza is a bachelor. Although Hispanic, Texan and a respected

conservative federal judge, he is on the older side and has made it

abundantly clear he would overturn Roe v Wade. This alone makes it virtually

impossible to nominate him in the current climate, since it would probably

make him unconfirmable or at least a probable victim of an attempted

filibuster.

    9) Michael McConnell gets very high marks for his academic credentials

although his experience as a federal judge is limited. He would get

substantial bipartisan support, paradoxically leading to suspicions among

hard-core conservatives. Very extensive public record of writings to quote

against him in hearings. McConnell criticized important aspects of Bush v.

Gore. He has public opposition on record to Roe v. Wade. His academic

persona probably doesn't `jibe' well with Bush. In combination with his

dislike of Roe v. Wade, this makes it surprising for McConnell to emerge.

Nonetheless, given his stellar credentials and bipartisan support, he is a

dark horse not to be discounted.

    10) Samuel Alito has been mentioned very little. Despite his obvious

credentials, this is probably because he is the author of a widely noted

dissent indicating his willingess to overturn Roe v Wade. In the bizarre

world of Washington DC, you can think it but you can't have said it publicly

if you want to get confirmed.

    11) Ignoring dark horse candidates like Senators Cornyn and Brownback

and other outside possibilities, the only remaining plausible candidate is

Miguel Estrada. He is young (44) and, because of the Democratic filibuster,

has no judicial experience. But neither did William Rehnquist, Louis

Brandeis, Lewis Powell, Earl Warren, Byron White, Robert Jackson, William

Douglas, Felix Frankfurter, and Hugo Black when they were nominated to the

Court. Estrada has a compelling immigrant's story (although he didn't come

from a poor background), has impeccable and impressive academic credentials,

is a regular practitioner before the Court (argued 15 cases), former

Assistant to the Sollictor General, Kennedy clerk. And, despite his strong

conservative views, no paper record to hurt him. Estrada was obviously being

groomed by the Bush people for the Supreme Court when he was nominated for

the DC Circuit, but, frustrated with the process, withdrew his nomination

before the Filibuster Deal (which would have let him through). Given what

happened before, Estrada is a risky choice, but there were sufficient

Republican votes to confirm him for the DC Circuit and once on the Court he

would be there forever. No wonder the Democrats filibustered him.

    In sum: weighing everything, I think that the only woman who is

seriously on the table is Edith Jones and her conservatism is so outspoken

that it becomes very unlikely that she could be nominated. The nominee will

most probably, therefore, not be a woman.

    Among CWMs, Luttig is the obvious candidate (his background is in many

ways very similar to Roberts, whose personal friend he is), with Cornyn and

McConnell as dark horses.

    Among 'minority males' I think that Estrada is, perhaps surprisingly,

the best choice.

    If Erick at RedState.org wouldn't have reported that the President

didn't particularly like Luttig's personality, I would bet Luttig would be

the One. If the President is willing to be bold, Estrada would be an

enticing and for conservatives most exciting choice. Cornyn might suddenly

pop out of the box.

    But, given all the negative arguments plausibly possible against so many

nominees, there is a strong case to be made that Bush is tempted to fall

back on Gonzales (despite conservative opposition it's unlikely that the

Senate Democrats would seriously try to block him), so we must pray that

Erick is correct in reporting that he has taken himself out of the running.

...but I'm still praying for Janice Rogers Brown, Edith Jones, or Miguel Estrada to be the nominee. :-)

Estrada is the youngest, so it should also factor in the SCOTUS math that this should be viewed as a good opportunity to re-load the court with brilliant young arch-conservatives who will be on the court for years to come. And truth be told, I think we could probably expect a decade more service from Estrada than either Brown or Jones based on age considerations alone. Granted that his record isn't well known, and after having people vouch for David Souter, I'm not one to get behind someone just because someone vouches for him. But Ann Coulter is not just a "someone" and if she vouches for him, she is one woman whose word I am more than willing and happy to take on faith.

We also must remember how important these nominations are when we go to vote in the Republican primaries. If we elect Giuliani (a Rockefeller Republican) or McCain (a John Paul Stevens-nominating Ford Republican), no matter how good they are on other issues, neither one is likely to nominate any of the justices that we are even contemplating here today. And given Stevens' age and Ginsberg's rumoured ill health, perhaps there will be time to get Jones and Brown on the court, still, in the next few years after all?

Our greatest electoral hope to making this happen, I believe, is a President Condoleezza Rice to succeed George W. Bush. I don't believe that there is any person of any gender or race who is more capable and qualified who is better suited to march forward in the legacies of Ronald Reagan and George W. Bush. GO CONDI!

JRB was my first choice.  Who cares what she said about Lochner.  Lochner was the evil mother of Miranda, Roe, Lawrence and a host of other evil spawn.  Lochner was the decision in which the Supreme Court declared that there is a hidden "right to contract" in the Constitution, but they can't find the words anywhere.  Us commonfolk just have to trust in the Supreme Court's ability to read the Constitution since there's no way the Founding Fathers intended for such an important document to be even understandable, let alone interpretable, by a regular citizen.

Lochner was, and is, a joke.  I agree with JRB.

I think only Bush knows whom he will pick.  A couple of months ago, everyone knew he would pick a woman or hispanic to replace Sandra Day.  Yet he picked the most white guy he could; yes we know Bush would love to pick a hispanic, but I think he will pick the person he believes is best.  I believe I recall two former dark horses from the earlier opening, one was a state judge in Michigan and another was a hispanic on the Florida Supreme Court.  I think we might see one of the two of them

of Condi & McCain.

McCain for all his faults (and there are plenty) is a solid conservative on social issues and has a 100% pro-life record.  He has voted for every single one of W's nominees and I believe he voted to confirm Bork.  So I wouldn't mind McCain making SCOTUS nominations.

Condi, for all my love for her (and I seriously love the woman, :)) is pro-choice by her own admission, which indicates to me that she is likely to appoint more O'Connors.

I think you are completely correct.  I think that the President already has his choice and it won't be  Brown.  Seems to me that the main reason why so many Conservatives like Brown is because they know she will be a fight and they want a fight and they want to win.  That's great for the partisans.

  But the President is far too shrewd a politician to go down that road.  He is fully aware that a Brown nomination is a knock down drag out fight and that it could completely stall his Presidency.  Smart politicians know to avoid pointless battles.  

  If I were to put my money on someone it would be a politician that is outside of the standard list.  Likely a female or black/hispanic or both.  He won't want to pick someone that groups like PFAW have been gearing up for several years to fight.

confident.

Estrada would also be interesting, but I don't know if he is willing to step into that frying pan again.

I still think Jones or Garza would be very good minority choices, if Bush is going for the minority pick.

McCain is actually pretty good on judges, although you can't extrapolate entirely from who they vote in favor of, and who they would actually nominate, but I suspect McCain would make good choices on judges.

Condi is a wild card though.

between Republicans and conservatives.

While most strong conservatives are (mostly) reluctantly Republicans, not all Republicans are strong conservatives, and that matters in this instance.

Janice Rogers Brown is an unadulterated reactionary conservative, bless her heart, but in the normal course of events she'd have never gotten confirmed to her seat as it is, much less to the Supreme Court.

Many Republican senators are not strong conservatives or movement conservatives and are bothered by the brand of conservatives that JRB typifies.  They only voted for JRB when it became a partisan issue, when the Dems overplayed their hand, and when Bush made it a point of loyalty.

But the calculus has changed.  Bush isn't running for re-election ever again, his popularity is at a historic low, and his agenda seem listless both in Congress and in his administration.

Republican senators aren't going to stand up to the excoriation that Kennedy, Schumer, Leahy, the MSM, and the lunatic left (but I repeat myself) throw at them if Bush were to try to promote JRB.

They aren't going to break the filibuster over JRB to the supreme court.  I just don't see our guys having the cojones to do that.  (Does that count for the profanity ban?)

I bet we'd lose, if it actually came to a vote (in my rank order of who wimps out first):

1. Chafee
   
   
2. Snowe
   
   
3. Collins
   
   
4. Specter
   
   
5. DeWine
   
   
6. Voinovich

Here alone we lose the majority vote.  Then, I'd bet we also lose:

7. Murkowski
   
   
8. Ensign
   
   
9. Hagel
   
   
10. Alexander

I'd rather Bush pick a solid strict constructionist who is in the lines of Scalia and Thomas.  While I like to poke sticks in the eyes of Dems whenever I get the chance, it's not always necessary.

away with that crap again if Estrada was the pick.  All the crap they were able to do to Bork and Thomas was before the internet, Fox News and a continued shift of the electorate to the right.  Thomas was confirmed with a Democratic senate, I know we have boobs like Chaffee and Snowe but its still a Republican Senate.

But as long as some posters are defending McCain against your charges, I'll defend Rudy.

It sort of made me chuckle to see a blue-collar Italian Catholic from Brooklyn referred to as a "Rockefeller Republican."  Lincoln Chafee is a Rockefeller Republican.  Christie Whitman is a Rockefeller Republican.  The group you refer to is the old WASP GOP contingency from the northeast, most of whom are now Democrats or RINOs in exile.  I doubt that more than 10 percent of elected Republicans these days would fit that profile.

Giuliani is a South Park Republican: conservative on economics, center-right on entitlements, libertarian on social stuff, hawk on defense and crime and such.  One can certainly find plenty of ways to argue against South Park Conservatism as a governing philosophy, but the fact remains that both it and Rudy are a far cry from Governor Rockefeller.

...good on judges?  I guess you mean his Gang of 14 deal was/is an unaldulterated total victory for the Republicans, then?

So why are we still gaming nominations?

Oh, right -- because the Gang of 14 deal obligates us NOT to bust the filibuster.  Thanks, John!

About McCain's "pro-life" credentials, what about his statement to the San Fran Chronicle in 1999 where he stated "certainly in the short term, or even the long term, I would not support repeal of Roe vs. Wade"  (See Ann Coulter, here)

The big problem with McCain is that he is NOT a reliable conservative.  He is a reliable member of the Media Party -- his main platform is "good press for John McCain".  And we all know what positions one must hold to get good press from the Media Party,

Furhter, the man holds a grudge worse than any Bush family member -- to the point of letting it affect his policies.  Worse, he's prone to fits of rage when questioned in even the gentlest terms. (Google "McCain temper" for scores of links).  I say with only slight exaggeration that if a single conservative ticks off McCain, he'd retaliate by nominating Cass Sunstein to SCOTUS, just to get back at those who crossed him.

Good thing there's never even been a rumor of opposition to McCain from any conservative, anywhere, right?

Oops.

A part of me wonders if the reason we're hearing names like Jones thrown around is that POTUS is trying to bluff Democrats into thinking they'll get their bork-able nominee after Roberts is confirmed, thus leading to a quick and broad Roberts confirmation with nearly 80 votes.  After that, POTUS will then go on to nominate another intellectual heavyweight with broadbased support throughout Washington and solid conservative creds.

The problem is, Luttig is probably the only nominee that fits that profile.  And POTUS doesn't like him.  I know that sounds sort of comical, but remember, these are real people.  Imagine if you were the president, and the guy who looked the best on paper for your SCOTUS opening massively rubbed you the wrong way during your interview with him.  Bush has a managerial mindset, and most managers won't hire someone who makes them uncomfortable during interviews.  Those with experience in management can often tell whether a candidate for a job will be a "good fit" this way, and anyone with Bush's executive experience must have a pretty good barometer for that sort of thing by now.

But if Luttig is a no-go and Jones barely has 50 votes, then who?  With Clement out of the picture, based on Erick's earlier post, McConnell may end up being the last man standing.  McConnell is an originalist too, IMO, but a different kind of originalist.  Example: McConnell would probably find a right to certain religious acts in the Constitution based on the Free Exercise Clause.  This isn't really judicial activism.  It's just coming to a different conclusion than most jurists using the same originalist methodology.  McConnell would be a wacky Justice who would vote with conservatives 80 percent of the time and every now and then surprise everyone by finding a right to polygamy or some such thing.  But those few times when McConnell goes off the wall, he'd probably be dissenting alone.  It's not like he'd bring the other Justices along with him.  On the other hand, he seems solid on the life issues, and would probably be as good as O'Connor on economic issues (which is the area where she really came through).  

My guess is that Luttig, Jones, and McConnell are the final three.  Bush has a choice between a guy who has a great resume but that he doesn't trust (Luttig), a woman who is bright and trustworthy but who might actually lose on confirmation (Jones), and a candidate who is intelligent, respected, and conservative on the big issues, but a bit off the wall on some of the peripheral ones (McConnell).

Why not go for Luttig who is much more qualified.

Do we really think that Edith Jones would lose ?

Are there really that many GOPers who would vote against Bush on Jones because of her Roe v Wade stance ?

I really can't see it ...

I can't see her being "extraodinary" enough to trigger a filibuster.

I hear he is too much a fan of stare decisis to overrule Roe

These comments have really been helpful for me in sorting out all of the possible candidates.  I didn't know that much about McConnel before reading this.  My gut tells me that it will be Luttig but has anyone heard any mention of Charles Pickering?  Is age too much of a factor?

I think that when Bush nominated O'Connor's replacement, he was really nominating Renquist's replacement. He new Renny would probably resign soon and saw the O'Connor opening as an opportunity to get a CJ though without a CJ fight. Everyone he interviewed fit a CJ description--conservative thinker, but also someone who could persuade other justices. knowing he was nominating the CJ before explains why he now wants to "go in a different direction." It also means this time he really is nominating O'Conner's replacement as an AJ. This reopens the case for identity politics. It also reopens the case for Scalia/Thomas style justices.

Another way to look at the Gang of 14 issue and McCain's role is that he is able to count to five.

Chafee

Snowe

Collins

Voinovich

Specter

make it 6 with DeWine

None of these folks, Specter's protestations to the contrary, were reliable votes to kill the filibuster.

Make it 7 with Warner.

McCain stepped in to give Bush a victory when Frist was diddling in his offce.

And McCain stepped in to ensure that when he's POTUS, he'll have the Red State Dems on record for voting for conservative judges.

It's an equally valid theory to yours.  

Just because John McCain (R-MSM) likes to be on TV a lot doesn't necessarily negate his conservative credentials.  It doesn't help him with those of us on the right wing of the party, but he's not as bad on many issues as a large chunk of the other Republicans in the Senate.

Wow is Joyce Rogers Brown (JRB) really out of the main-stream because she believes the government does not have the right to tell you how many hours you can decide to work each week?

Yes, that is the Lochner decision. New York wanted to limit how many hours workers could work to only 40--even if they wanted to work more. The supreme court overturned this law because it infringed on personal freedom. JRB supports this decision. Good for her! If the government can tell you how many hours you can work, they can start telling you where you must work, or for whom you work.

This is NONE of the government's business. And besides as France has shown unemployment actually has gone up when they reduced the work week to 35 hours. Why?

Well, for some people in the economy, the more hours they work the more opportunities for work they create for others in the economy. The liberal view is that there are a limited number of jobs and if someone works more than their fair share of hours there is less work available for others. This is non-sense. Imagine, people who build foundations for homes are in limited supply and so they work 45 hours per week instead of 35 hours. If the government mandates they work only 35 hours, fewer foundations will be built and what will happen to all those workers who built the frame, roofing, dry-wall, etc. They would be out of work. Liberals think everything is a zero sum game--If I win you lose. But the economic world is not zero sum. If people become rich that does not make other people poor. In fact, as more people become rich, the poor become richer as well.

First off the New York State Law was 60 hours, not 40.

Secondly if the State of New York wishes to pass a law to protect workers why should the Supreme Court have ANY say in this?  

Thirdly for anyone who CLAIMS to be a strict constructionist Lochner was a severe and BLATANT case of judicial activism.  They created a right and then applied it to the 14th Amendment due process protection.  

If you believe that the court was right to do that then you better NEVER complain about Roe V Wade much less Griswold.

I'm all for Estrada and think he's the best pick.   Ryan K at confirmthem.com posted a post why Estrada is the best strategic pick:

http://www.confirmthem.com/?p=990

I agree with all of it.  Payback is a b*tch.  Dems will rue the 2 years they filibustered Estrada and put him through hell and back.

Ginsberg and Breyer didn't lose. They were confirmed unanimously (I believe). I know the Dems are now playing games that they shouldn't, but would we really lose Republican votes on any justice nomination when traditionally most justices are confirmed unanimously? I don't think so, even from the pro-choice Republicans.

Tons of people know Estrada personally and everyone knows he is a die-hard conservative to the bone, and quite vocal about it.  That is why the Democrats filibustered him for 2 years.

Good post. I like Estrada and think he would be a solid choice, especially given his age. It would play well to the GOP base and the GOP Senate would go nuclear for Estrada (but probably not for Rogers Brown or Owen).

McConnell really doesn't seem like Bush's type, as you say... the Luttig stuff interests me but I don't know what to make of it. He's not as social as Roberts but still seems like a tempered, thoughtful jurist (who obviously is brilliant).

I too hope Gonzales is totally out of the running, and frankly I think Bush got the message on him.

The real question could be this: who is tougher to get through, Edith Jones or Miguel Estrada? I think Estrada would enrage Democrats more, but Jones would be easier for them to beat in the realm of public opinion.

I'm not aware that Condi is a self-professed abortion sympathizer. This would be news to me, and certainly surprising since she is the daughter of a black Republican southern minister. I have heard this from a few other people, but they were mostly people that were already firmly behind other potential presidential nominees who may very be great if they had a chance in hell of being elected (i.e. Gingrich, Tancredo), and I suspected that they were just trying to dampen my enthusiasm for a President Condi. Of course, if she were indeed pro-choice, I would have to do some serious rethinking on how firmly I was behind a Rice presidential bid. I just find it hard to believe that when the chips were down that such a brilliant woman from her background wouldn't do the right thing and nominate solid pro-life judicial nominees.

Given her background in academia, however, I could very well see her chosing an academia darling like Michael McConnell. But perhaps also a fellow black woman like Janice Rogers Brown. Now wouldn't that be something?

I must admit, however, that I have a strong bias for Condi and if I could just get her to say, "not after the first trimester," I may do the unimagineable and make a one-time compromise just for her (or 2-time compromise if she were elected and ran for re-election :-) ). Isn't that awful!? That's how much I love her. I named my beautiful calico Condi, and that was 2.5 years ago when she was still National Security Advisor. I've been enamored with her since her introduction at the 2000 Republican National Convention (before she even walked out on stage) and she has only continued to impress me. I pray every day for her to run for president. And ever since I saw the way she handled Barbara Boxer in her Secretary of State Senate Confirmation Hearings, I have salivated at the idea of her giving Hillary a good old fashioned thrashing or three in the pre-election debates.

Also, I think that the demographics tilt so heavily in her favor in 2008 that her candidacy would just be a dream come true for the GOP. I think that we would see a record African-American turnout for a GOP nominee, which would cripple Hillary in a lot of states that Bush narrowly lost, and I think that Condi would neutralize the single-woman vote that would otherwise tilt heavily for Hillary. Add to that those who are foaming at the mouth to go out and vote against Hillary - or any Clinton on the ballot for that matter - and I think you have the biggest landslide since Reagan was re-elected.

I love Bush, but Condi is so eloquent, that the GOP faithful for the first time in quite a while can rest assured that our nominee won't blow a 10-point lead going into the first presidential debate with a disasterous performance like Bush turned in, either. She's so brilliant that, for once we might get to see the Democrat stammer like an idiot (except in that case, he/she might actually be a public policy idiot).

All that to say that you should take whatever I say about Condi with a lump of salt because even I recognize that when it comes to Condi - I have very little objectivity! LOL

...and I think that she'd be great on judicial nominees, too!

does the trick.

I like Condi a lot and I think she has to be on the short list for VPs, but she is "mildly pro-choice" in her own words.  And she could have just stayed quiet if she didn't want people to know her stance.

By her own statements, she is for restrictions on abortion rights. She is for a ban on late term abortions (partial birth), she is in favor of parental notification laws, and has maintained that she is in favor of the Hyde Amendment.

According to Pfeiffer at NRO's "buzz", she has maintained that she is against Roe, and believes that the issue should be remanded back to the States. She does NOT believe in the Human Life Amendment, however, which is where she parts company with a large section of the pro-life movement. Thus, she describes herself as "moderately pro-choice".

The key to understanding Condi and the Court, assuming she runs, which I believe she will, is to look at her stand on the 2nd Amendment. She considers herself to be a 2nd Amendment "absolutist". She has said more than once that the First Amendment is meaningless without the 2nd Amendment to back it up.

Now, I don't see Condi nominating in Souters and O'Connors with that kind of stand. You can safely extrapolate Condi's view on judges from her stand on RKBA, I think. Personally, I don't see Condi nominating judges who would come up with the Kelo decision, either. She's quite libertarian.

Condi is already on record as being against late term abortion, for the Hyde Amendment, for parental consent laws, and for a libertarian approach to the problem of Roe (state's rights).

That's probably the best your going to get out of any Congress anyway, as long as the Donks are in the thrall of NARAL.

to get us an OU quarterback?

You can google all day long, and either Google or even an incompetent Greg Davis can save you from Vince Young and the Longhorns this year. Fortunately for OU, Greg Davis IS so incompetent that it is doubtful that the Horns will be able to sufficiently run up the score enough to fully avenge at least one of OU's previous thrashings of the Longhorns. But I can't wait, nonetheless. evil laugh :-)

I was talking about for the other tough games on the schedule.

of course, I bleed orange and black.

I hear he is too much a fan of stare decisis to overrule Roe

Most of what I hear about McConnell makes him far too much of an unacceptable risk to me (see ConfirmThem.com archives for more).

That's one nomination that I'm fairly certain would blow up in our faces.

So, no.

...but maybe she, like most serious Constitutional scholars, still thinks that Roe was wrongly decided and the power to regulate should be duly vested in the States so that it can become as rare of an occurance as she says she would like it to be? If that were the case, she would appoint anti-Roe justices just the same.

She says she's against late-term abortions, but doesn't say how late.

Granted, I would be much more comforatable if she at least described herself as "moderately pro-life" instead of "moderately pro-choice." I would also like to hear what kind of justices she says she would nominate. Would she, like Bush, pledge to nominate justices in the mold of Scalia and Thomas? What kind of justices WOULD she pledge to nominate? Maybe if she wants to be president, she'll at least throw us a bone on judicial nominations so that people like me can continue to be enthusiastically for her. After all, if the states are regulating the policy in a post-Roe-reversal era, I guess it wouldn't matter all that much if the president were pro-life or "moderately pro-choice" (except how it reflects on that individual's character) would it?

LOL. I'm going to hunt you down on here after OU Weekend and we've beat the hell outta OU. OU STILL SUX! (Hope that doesn't that violate the no profanity rule.)

When did Condi Rice become a serious Constitutional scholar?

I realize that you don't need to be a judge to become a Supreme Court Justice but shouldn't you at least go to law school?

As in Okie State? The school that I saw the Horns run up 49 unanswered points against before my very eyes after giving y'all a 35 point head start? LOL

I was nominating her for president. LOL. Where of course she would probably make the judicial nominations to replace Stevens and Ginsberg if Bush doesn't get the chance to.

But for the record, I believe that Condi is so amazing at everything she does...I'm sure she already is better versed in the Constitution than 90% of the nation's law school grads.

of course you just had to bring up that game.

But, there are a few things you don't take into account:

-- JRB was confirmed this year.  Last time I checked, POTUS was reelected last fall.

-- POTUS did a bang up job campaigning in 2002, and DeWine and Chafee both face bruising reelection campaigns this year.

-- Collins likes her military bases and she'll do whatever she has to to keep them.

-- Specter won't oppose a black woman.

-- Alexander and Voinovich don't care enough to vote against her.

-- Murkowski will do whatever will do the most to help her constituents, and ANWR could easily get axed if she breaks ranks on something that big.

-- Ensign would probably lead the charge.

Plus, Landrieu and Abraham would be hardpressed to block.  Watching KKK's reaction would be hilarious no matter what he did.

McCain would never nominate anyone would rule that his dearly beloved Campaign Finance Reform violates free speech. That would eliminates most originalists from his consideration.

Trenchant analysis -- I very much like the sound of "Forty-four year old Justice Estrada".

When you write the following, however, I have a slight disagreement:

Estrada was obviously being groomed by the Bush people for the Supreme Court when he was nominated for the DC Circuit, but, frustrated with the process, withdrew his nomination before the Filibuster Deal (which would have let him through). Given what happened before, Estrada is a risky choice, but there were sufficient Republican votes to confirm him for the DC Circuit and once on the Court he would be there forever.

(emphasis mine)

I don't think Estrada is a risky choice at all, at least not in the way that matters most inside the Beltway, in the political sense. One hates to be overly cynical, but I can't help but think the Democrats will pay a political price with Hispanic voters if they try to bloody Estrada, which they most assuredly will try to do should he be given the nod by the president.  

Anyway, maybe RedState can contribute to an Estrada Boomlet, though, as others have noted, it's likely the White House has already made its choice.

Born in Cherokee, dad got his Masters there. Bedlam always has a winner for me.

The framers enshrined a large amount of property rights into the Constitution. That's what the eminent domain clause and the due process clause are all about.

It makes no sense for the Supreme Court to grant so many rights nowadays when they have pretty much destroyed property rights since the 30's.

What do property rights have to do with Lochner?

Or are you just looking to derail the point with a general complaint against Kelo?  If so please let us know now to simply the process.

It really depends on what the moderate Democrats decide to do.

If all 45 Democrats formed an unwavering bloc in opposition to Jones in the hope that they could take advantage of Bush's weak position right now as well as force a more moderate nominee after a borking, we couldn't lose more than 5 GOP votes.  If the Dems made the confirmation fight an "all Roe, all the time" battle, Chafee, Collins, Snowe, and Specter would all start to waffle.  And the closet pro-choice Republicans in the Senate (the ones who sneak pro-choice votes in when nobody's looking) like KBH and John Warner and Lisa Murkowski would basically decide Edith's fate.

Basically, Jones could win, but it's cutting it awful close.  If this were the deciding Roe vote, I'd bet against her.  Since it's not, we're probably looking at a vote pretty close to 50/50.

I did take into account that she was confirmed this year.  I would argue that she got through because of the unprecedented situation, Bush had a lot of political momentum, and the Dems were too arrogant and blocked too many judges and the Reps in the Senate had no choice but to respond, even the squishy moderates who usually have no backbone unless the Dems allow them to.

POTUS, at this point, may be perceived as a liability by the squishes DeWine and Chafee.  They are both likely to gamble and assume that the conservative base will be there for them again, and they are going to reach out like heck to the moderates and Dems.  Expect to see ads saying that they are independent from the President, will hold him to account, and even highligh how many Dem bills they cosponsor or investigations they've called for.

Collins' (and Snowe's) military bases are secured at this point.  Bush will accept BRAC unconditionally and send it to Congress without changes.

Specter would most certainly oppose a conservative.  He'll do a press conference with the Urban League or the head of the PA NAACP and say that he has grave concerns about her qualifications and that he has no choice but to listen to the wise counsel of his good friends.  It's not like he's running for re-election.

Alexander is, at best, a lemming.  But you're right, he's probably 'get'-able by the WH if they try.  Voinovich, otoh, will be concerned about her temprament and her respect for process.  He'll cry and plead for POTUS to reconsider and ask if we can all just get along.

Bush ain't gonna axe ANWR out of pique.  And she's not all that wrapped up in ANWR.  She supports it, she'd like it, but that's an empty threat to her.  She's got 5 years until the next election.

Landrieu isn't a safe bet right now.  She's so pissed off at Bush and the Admin that she'd be willing to exact retribution.  It's not like her voters are going to pay attention to this debate right now.

Abraham is no longer in the Senate, iirc.  Who did you mean?

(I am willing to be proven wrong on any of these points, but I'm a cynic at heart)

Why did he support Bush for President... twice? I don't support McCain, but I am curious, because he campaigned for Bush as much as any other senator, including Zell Miller.

...I was at the game, so it's hard to forget going from this sickening feeling in the pit of your stomach that a year formally filled with such promise is just about to be over...then shock...then unadulterated elation when you can finally trust that Vince Young has just saved the seaso. I swear...I didn't really start enthusiastically cheering until we we went up by 2 touchdowns...because I was pysically in such shock to be observing what was going on before my very eyes, I didn't know if I should trust it. Usually it's the Horns blowing games like that. The role reversal was such a refreshing change. I finally got to feel what other people felt when the Horns had snatched defeat from the jaws of victory. lol

Miguel Estrada was Bush's number one pick for the Supreme Court long ago. As pro-life as possible, but no paper record for dems to attack, just like Roberts. That said, Estrada was not the first nominated, so we can only hope that he is interested and that Bush thinks he can get through.

That's all that needs to be said about McCain on the judiciary. It's hard to imagine him finding a justice who wants to uphold every part of the Constitution except the First Amendment with regards to political speech.

Human Life Amendment?  I've never heard of this before.  I can guess what it entails, but I'd love to have it spelled out.  I hope that the ultimate goal of conservatives is not to have the Supreme Court not only overturn Roe, but put Human Life Amendment into place.  That would be extremely NON-constructionist.

Amending the Constitution wouldn't be done through the Supreme Court, it would be done through the amendment process.

I know Alexander personally, and he is an old and close friend of my brother, from kindergarden through college.  He was clerk to Judge John Minor Wisdom, a well respected 5th Circuit Judge in the 1960's.  He cares very much about Judicial appointments.  He was selective when he was governor of Tennessee, and he would vote the way he saw it on any Supreme Court nominee.  He voted for JRB to go on the DC Circuit because he thought she was qualified for that position, and because he was torqued off at the Dems filibuster.  Were there to be a filibuster of JRB if Bush nominated her, I have no doubt he would vote for the nuclear option, but against confirmation of JRB. I have no doubt that he would not trust her to make precedent, given her views as discussed here re: Lochner and other issues where she is more "libertarian" than conservative, and when I voted for him for Senate, I would not have expected anything else.  You may agree with his views or not, but he sure as heck cares.

Estrada's wife died "unexpectedly", which is a true but incomplete word.  She died of an "accidental" drug and alcohol overdose in November 2004, which was, as I recall, about a year after a miscarriage wgich occurred shortly after Estrada withdrew his name from consideration for the DC Circuit.  

A few years ago, I had a case where the DC office of Gibson, Dunn and Crutcher, where Estrada was a young partner, represented someone on the same side as I was. I was very briefly introduced to him, which was a few months before he was nominated.  

This was one of those cases that involved intense work for a few months, then laid dormant for over a year.  After a brief burst of activity, it finally wnet away.  In closing out some paperwork, I was told that Estrada's career had been hurt greatly by the delay, as he was unable to assure prospective clients that he would be around to handle their affairs.  I was also told that his wife was in the late stages of a difficult pregancy.  A few weeks later, as I recall, he withdrew.

I no longer have an excuse to touch base withthe person at Gibson, Dunn, certainly not just to gossip.  I have no idea whether or not he would be emotionally able to go through the process again, but two things come to mind:  (1) He would join the Court with the biggest hardon against liberals that you can imagine-- more so than even Thomas, who has said privately many, many times-- and has never denied published annonymous, but sanitized,  reports of such conversations-- that if he lives to 100, he will stay on the court to screw liberals; (2)if Robrets is confirmed without revealing any docs from the SG's office, and Bush has held back naming anyone to the other vacancy, then the last objection to Estrada raised when he was filibustered would be removed.  

Oh, Priscilla Owen is not considered a loose csannon at all by Bush and those close to him.  She was viewed as a trooper before her confirmaiton, and the delay certainly did nothing to make her sympathetic to liberal views.

And, for an obituary on Estrada's deceased spouse, see

http://www.legacy.com/washingtonpost/LegacySubPage2.asp?Page=LifeStory&
PersonID=2868066

Of course, I include contract rights in property rights, but here is a quote from Lochner:

"Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right."

Back then, property rights meant more than they do now.

Stabenow, not Abraham.  Excuse me, I misspoke ("mistyped"??) - an error that needed correcting.

The reason Maine did well with the bases because Collins cut a deal with the WH.  That's not public, but I know it to be true.  (not speculation)

Murkowski is married to ANWR and needs the support of squishy Senators to get it through.

Chafee needs the WH because he's facing a stiff primary challenge.  He's in serious trouble in the primary, and conservatives are coming at him with guns blazing.

DeWine's in a similar boat.  Even if he survives a primary challenge from Hritz and/or McEwen, he needs the President to turn conservatives out after the G-14 deal.

Landrieu wouldn't be safe, that's true, but she'd be between a rock and a hard place.  If the President nominated JRB, it'd be WWIII, but when push came to shove, she'd be confirmed.

The same court that struck down New York's limit on labor hours allowed such limits for mine and similar workers in Utah in Holden v. Hardy on the basis that the state had the right under its police powers to provide for worker safty.

The problem in the New York case was that it was not about protecting the worker it was about trying to limit the rights of individuals to engage in a voluntary exchange.

Finally, in Roe v. Wade the court ignored the right of the state to protect unborn children.

That's the whole point:

http://blog.mises.org/blog/archives/003710.asp

The Constitution clearly protects property rights; you can't just write them off like the Court did in the 30's.

It's an important aspect of Estrada's potential on the court that he was wronged by leftists in the Senate. It's very unfortunate he went through it, but I can't help but think the best thing to do is simply get him onto the Supreme Court.

If they want, the GOP can go to war for Estrada and win.

Learned that one in 2nd grade.  The problem comes when the Supreme Court, through decisions like Roe and Miranda essentially judicially amends the Constitution.  Forget it though.  I don't need an answer from a snotnose like you.

I'm on the Estrada bandwagon!!

I just wish I had a platform to go to war and throw Teddy Kennedy's, Chuck Schumer's, and Barbara  Boxer's bile back at them. I love Kay Bailey Hutchison and John Cornyn is coming on strong, but they're both just so calm and genial all the time. Texas really should have an in-your-face conservative Senator like we have in Tom DeLay in the House to go to war against those dispicable slimeballs.

Maybe we can get Carole Keeton Rylander to drop out of the Governor's race and run for Senator sometime in the future.

Many in the Life movement have been pushing an HLA since the eighties! It's not exactly new, and as others have commented, it does strike me as a tad too Federalist. Send the thing back to the states, imho.

And they created a substantiave due process "right of contract" that didn't exist.  

Please explain how that law violated due process?  

Yeah property rights meant soooo much more back then. But only if you were a wealthy land owner.

I strongly believe it will be one of these 2....Fred Barnes' article in today's WSJ sort of sums up why W needs to make a strong pick on this one.....if he flinches now, his legacy will be determined....it will be a weak legacy backing off the commitment to choose justices like Scalia and Thomas........so, underlying all of this now is....W needs to stand stronger than ever!!!!!

Separate issues on these 2:

1. Edith Jones is the opposite of Ruth Bader Ginsburg.....why can't there be a conservative female on the court?
   
2. Miguel Estrada......his relative youth (equivalent to a 49 year old female) is attractive

Remember the Red State Dem Senators up for reelection.....Nelson in Nebraska, the guy from North Dakota, Nelson in Florida......their votes will be just as much in play as those of Chafee, Snowe, Collins and Warner......they will be placing their political careers in serious jeopardy if they vote against either Jones or Estrada (or any nominee with a highly publicized close vote)......one comment on Specter....if he votes against any nominee, he will be stripped of his Chairmanship in the next Senate....so he has effectively been neutered

W should step up to the plate on this choice, be bold, try hard for a confirmation......if unsuccessful (another real life successful Borking) say with a Jones....then nominate Estrada or equivalent with impeccable credentials....or, maybe even Luttig.......

The Red State Democratic Senators need to feel the HEAT!!!!!!!!!!!!!

...BRING THE HEAT! :-) ESTRADA OR JONES!

because you said this "have the Supreme Court not only overturn Roe, but put Human Life Amendment into place. That would be extremely NON-constructionist."

The HLA is going through the proper channels, not the Supreme Court, you seem to have missed that part.

JRB did not say that she supported Lochner.

Here is JRB's quote on Lochner from your link:

Janice Rogers Brown: In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the `constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire'...he was simply wrong."

She is saying that Holmes is wrong about the constitution not being intended to embody a particular economic theory.

She does not give an opinion as to whether or not there is an "implied freedom of contract" in the Constitution.

The Constitution is a document of negative entitlements.  What that means is that government has only those powers which are enumerated in the Constitution.  The First Congress had a virtual consensus on this point.

JRB's point is that Holmes is wrong about the constitution not being intended to embody a particular economic theory.  I think that she could have expressed herself better if she had said that the constitution does not expressly give congress the power to regulate "intrastate" (as opposed to "interstate") commerce, and that Mr. Lochner's bakery could only be described as an "intrastate business."

She expressed herself poorly.  But she did not embrace the central flaw in Lochner: the reliance on an unenumerated implied "right" in striking down a bill passed by elected officials.

I am not going to go so far as to construe that comment as being support of Lochner.

This is what she said in that portion....

Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me -- has annoyed me -- for a long time and finally I understand why. It's because the framers did draft the Constitution with a surrounding sense of a particular polity in mind, one based on a definite conception of humanity. In fact as Professor Richard Epstein has said, Holmes's contention is "not true of our [ ] [Constitution], which was organized upon very explicit principles of political theory."20 It could be characterized as a plan for humanity "after the fall."

Apparently she is willing to transpose economic and political theory to further her own biases.  So either she doesn't understand the difference between Holmes' comment about economic theory and Epstein's comment about political theory or she is allowing her bias to control her writings.

She then goes on to say this....

But, taxpayers who pay the largest proportion of taxes are now a minority of all voters. On the other hand, until last term the Supreme Court held out the promising possibility of a revival of what might be called Lochnerism-lite in a trio of cases -- Nollan, Dolan, and Lucas, Those cases offered a principled but pragmatic means-end standard of scrutiny under the takings clause.

So while she doesn't explicitly say that she supports Lochner she does say that the dissent in Lochner was wrong and that she is hoping for a revival of lochnerism-lite.  I guess we can take comfort in that she doesn't pine for a return to the days of The Jungle but it sure does seem like she has a soft soft for that brand of jurisprudence.

I'm not sure whether to be ecstatic at the prospect of Thomas never resigning, or heartbroken that Estrada lost his wife so tragically. But this information has at least made my night. Thank you for posting it. If you have any other information surrounding Justices please share it as well as it is quite interesting.