ConfirmThem

In the 10/29 NYT edition there is a top of fold article with the following headlines (the article's much better than the headlines:
"Appeals Courts Pushed to Right By Bush Choices
"Trend Reagan Started"
"Administration Pressed Big Shift by Naming a Third of Judges"

Here are some excerpts:
"On Oct. 6, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influnece society for decades and that represents one of his most enduring accomplishments."

These judges "have arrived at a time when the appeals courts, which decide tens of thousands of cases a year, are increasingly the last word."

"Republican-appointed judges, most of them conservatives, are projected to make up about 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They conrol 10 of 13 [New York and Philadelphia are listed as tied], while judges appointed by Democrats have a dwindling majority on just one circuit."

"David M. McIntosh, a co-founder and vice-chairman of the Federalist Society, aid the nation's appeals courts were now more in line with a conservative judicial ideology than at any other time in memory. 'The level of thoughtfulness among sitting judges on constitutional theory and the role of judges is higher than certainly any other time in my life.... For somebody who has spent a lot of my life promoting those ideas, it's very encouraging to see.'"

Every "year courts encounter some controversial cases in which they have greater discretion. In such circumstances, several studies have shown that judges appointed by the Republican presidents since Reagan have ruled for conservative outcomes more often than have their peers."

Nan Aron gives a back handed compliment when he (unknowingly ironically states that "'George W. Bush has made great strides in cementing the ultraconservative hold on the federal courts which began with Ronald Reagan in the 1980ss, when he set out to impose his agenda on the country through his court appointments.'"

The writer of the piece--Charlie Savage--follows the Aron quotation with a similarly unkowingly ironic editorial paragraph: "Mr Bush's commitment to moving the court rightward has been important not only to elite conservative thinkers, but also to the social conservatives who have been his base of support."

Savage writes that if Obama is elected to two terms he could "roll back" the Republican judicial gains. But he also notes that if McCain wins, "Repulicans could achieve commanding majorities on all 13 circuits." He doesn't address the challenges McCain would address with a Democratic senate.

"Abpit 46 percent of Mr. Bush's appeals court judges are Federalist Society associates."

"Michael Greve, an American Enterprise Institute scholar and longtime figure in the conservative legal movement, noted that even when the judges considered by his faction to be 'truly spectacular appointments' were outvoted, they still served as informal 'monitors' by flagging decisions that conservatives on the Supreme Court might overrule. One example give is Michael W. McConnell of the 10th Circuit. Another is Jeffrey S. Sutton of the 6th Circuit. A third is Kavanaugh of the DC circuit.

After noting that there are some disagreements between GOP appointed judges, Savage concldes with Bradford Berenson who helped vet judges for President Bush between 2001 and 2003. Mr Berenson said "the movement might have already accomplished something sweeping, if invisible: slowing the creative exercise of judicial power that was generating many new rights a generation ago. 'Maybe the progress we've made in the courts is best measured by the unknowable crazy things the courts did not do, rather than the things the cours did,' he said. 'The triumph of the conservative legal revolution is halting the progress of the liberal one.'"

Courtesy of How Appealing,

http://www.ajc.com/metro/content/printedition/2008/10/29/sears.html

"Georgia Supreme Court Chief Justice Leah Ward Sears, who became the nation’s first African-American woman to preside over a state Supreme Court, says she will leave the court at the end of June 2009.

“I’m interested in exploring another chapter in my life,” Sears, 53, said in a recent interview. “I want to see whatever else is out there.”

Sears will leave the court when her term as chief justice ends on June 30, 2009. Because her term as a justice ends Dec. 31, 2010, her resignation will allow Gov. Sonny Perdue to name her successor and reshape the state’s highest court."

If Obama wins, Sears will assuredly be nominated to replace Lanier Anderson on the 11th Circuit.

Heck, not even Biden could blunder THIS badly! :)

http://tinyurl.com/5bqz9o

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

http://www.slate.com/id/2203237/pagenum/2

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

From San Antonio School District v Rodriguez, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=411&invol=... , which was discussed in the above Slate article:

MR. JUSTICE STEWART, concurring.

The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust. 1 It does not follow, however, and I cannot find, that this system violates the Constitution of the United States. I join the opinion and judgment of the Court because I am convinced that any other course would mark an extraordinary departure from principled adjudication under the Equal Protection Clause of the Fourteenth Amendment. The uncharted directions of such a departure are suggested, I think, by the imaginative dissenting opinion my Brother MARSHALL has filed today.

Unlike other provisions of the Constitution, ***the Equal Protection Clause confers no substantive rights and creates no substantive liberties.*** (SDPIFS, right?) 2 The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws. [411 U.S. 1, 60]

There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes. 3 And with respect to such legislation, it has long been settled that the Equal Protection Clause is offended only by laws that are invidiously discriminatory - only by classifications that are wholly arbitrary or capricious. (He then goes on to quote Warren's opinion in McGowan v Maryland)

MR. JUSTICE BRENNAN, dissenting.

Although I agree with my Brother WHITE (!!! Hey, Gov Richardson, what happened to that "Whizzer" White who was "anti-civil rights"?) that the Texas statutory scheme is devoid of any rational basis, and for that reason is violative of the Equal Protection Clause, I also record my disagreement with the Court's rather distressing assertion that a right may be deemed "fundamental" for the purposes of equal protection analysis only if it is "explicitly or implicitly guaranteed by the Constitution." Ante, at 33-34. As my Brother MARSHALL convincingly demonstrates, our prior cases stand for the proposition that "fundamentality" is, in large measure, a function of the right's importance in terms of the effectuation of those rights which are in fact constitutionally guaranteed.

Thus, "[a]s the nexus between the specific constitutional guarantee and the non-constitutional [411 U.S. 1, 63] interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly."

Scary last sentence from ol' Bill Brennan there.

This seems like a fascinating case with very interesting and well-written opinions (tho Powell's is QUITE long and White makes unfortunate use of "concededly").

Also, a pretty important case on numerous levels. For those in the know, why isn't there more 'mainstream' discussion of it (tho I'm sure there was at the time)? From Stewart above, is this why Blackmun didn't try to base Roe on the EPC? Crikey, Roe was reargued the day before Rodriguez!

In "Becoming Justice Blackmun", Blackmun made a note when he heard about Ruthie's EPC argument: "With respect, could not have done."

Again, very interesting case. We may be hearing echoes of Rodriguez shortly.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Bill M.--I've written Hugh Hewitt and Drudge about it. Where I'm at I can't cut and paste, but I hope it's shown far and wide. McCain should turn it into a commercial TODAY (probably is) and trumpet on Larry King tonight and all other outlets where he's responding to the best (?) infomercial money can buy!

Uh, Classic and BillM--

You guys do realize that that "gaffe" from Obama is from the Onion, right? The satirical newspaper? The same paper that wrote this hilarious piece after 9/11 titled "Hijackers Surprised To Find Selves In Hell":

http://www.theonion.com/content/node/38673

I'm sure you guys do realize that it's a spoof, although if you do, I don't see how Hugh Hewitt and Drudge will go near it.

You realize that that was the Onion, right?

No I didn't. Thanks for letting me know.

Thus the :) at the end! Sorry, Classic, just trying to lighten the mood...

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

I who have valiantly swatted down the lies re Obama (muslim, etc.--even the anti Christ!) only saw what I wanted to see. I didn't see the smile or didn't give it any meaning. I've notified everyone (inc. Drudge and HH) I contacted about it. Whah!

that I think the juries still out re Obama's birth certificate (i.e. whether he was born in Kenya or Hawaii; whether he (should have)lost his American citizenship when he used his Indonesian passport when he travelled to Pakistan in 81.

Agreed about Barry's BC (why in the world won't he just release it?), tho I must say I do think he was born in HI. Did not know about the Indonesian passport thing.

Unfortunately, I'm not sure McCain is fully in the clear viz his birthplace & time either, although clearly by every INTENT of Congress & SCOTUS there's no question. Some of the details and timeline of the acts of Congress & SCOTUS decisions seem a touch hazy tho. And nobody in McCain's campaign has said boo about Barry's BC...maybe both sides wanna leave this issue alone.

I haven't read the case against McCain being a natural born citizen (based on the explicit wording of the law & SCOTUS decisions at the time) closely; seems like the guy making it isn't a full-blown moonbat; but if both Tribe & Olson say you're wrong, you're probably wrong.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

was cleared up some months ago. Court found in his favor....

Have you heard about the Khalidi-Obama video tape that the LA Times won't release?

If she has already declared her intent to leave the bench, is there any reason for the 2 GA Senators not to blue slip her?

I understand that Kohl and Feingold let Diane Sykes through for a similar reason, but I don't see that applying anymore.

If the Dems have 60 seats, do you think the Dems will care if a GOP Senator turns in a negative blue slip?

I basically see Sears as giving Georgia Gov. Sonny Perdue a heads up about her future. She probably already feels 90% sure that she will soon be nominated for the 11th Circuit. I bet she has already been approached by Obama and his team and promised the seat. Some might call it hubris, but she might just be trying to nicely make sure that there is a smooth transition on the Georgia Supreme Court. Someone is going to have to take over her seat on the court. With her announcement, Perdue can start an open search.

By the way, I can't see either Isakson or Chambliss blue-slipping her if Obama really wants her. She is not a liberal on the level of Elena Kagan, Harold Koh or Cass Sunstein. She is relatively moderate and not a movement liberal. I think both Georgia senators would much prefer her to someone like Teresa Wynn Roseborough, a former Georgia resident frequently mentioned for the 11th Circuit. Roseborough is a liberal of the highest order and one of the founders of the American Constitution Society.

I'd actually go one step further than BoBo and say that Sears has some leverage here, for two reasons: 1) if she gets blue-slipped before her actual resignation date, she could always renege on her resignation; and 2) she's actually incredibly popular in Georgia (won reelection in 2004 by a huge margin). GA's senators don't benefit from blue-slipping someone with that level of popularity. If she's nominated to the Eleventh Circuit, she'll get confirmed -- there may be a bit of a delay and a whole lot of rhetoric, but she'll ultimately be OKed, 60 Dem senators or not.

Of course if there are 60 Dems Senators, Chambliss would likely not even be around. Right now he is our 41st seat on the list.

"Someone is going to have to take over her seat on the court. "

This is the only statement I take issue with, as evidenced by the 4th Circuit NC and MD seats, as well as Trott's seat on the 9th.

Will they care about a blue slip? Maybe, maybe not. But if we don't get a Gregory-like renomination, and if Obama tries to force through 20 nominees in the 111th Congress, I see no reason not to block some of the 2R seats for the next 4 years.

If Obama is elected, and I hope he is not, the only possible nominees I see him renominating in the 111th Congress are "consensus" nominees Glen Conrad of Virginia and Paul Diamond of Pennsylvania. I don't see any way that he renominates "radical ultra-conservatives" Keisler, Robert Conrad or Steve Matthews. Liberal special-interest groups would howl. I also don't think he would renominate any Bush nominees from states with two Democrat senators. That eliminates Smith of Rhode Island, Preska of New York, Stone of New Jersey and Rosenstein of Maryland. Simon for Indiana is somewhat of an unknown as I do not know if Bayh was consulted on his nomination and approved him.

If Conrad and Diamond were renominated by Obama, I think the Dems would say that such an action was enough reciprocity to make up for the Bush renominations of Roger Gregory and Helene White. They would then claim that the judicial confirmations battles under Bush had been atoned for, and that new Obama nominees should be treated independently of any more former Bush nominee.

Under those circumstances, in a Democrat-controlled Senate, I think it would be really hard to block a relative moderate like Leah Ward Sears for a seat on the 11th Circuit. If the Republicans want to block a liberal nominee from a state with some Republican senators, they would be better served blocking nominees for Mississippi, South Carolina and North Carolina. Wynn would be a good nominee to block if he is renominated to the Fourth Circuit.