The First Justice?
Hasn’t Ellen Goodman ever heard of the late Earl Warren?
Gonzales, Recusal, and National Security
Andy McCarthy has a great NRO essay on how Gonzales’s recusal obligations would prevent him from taking part in–and would thereby jeopardize–hotly contested cases involving critical issues of national security. And my NRO essay rebuts those who try to minimize the uniquely severe recusal baggage that a Justice Gonzales would have.
Hope I Didn’t Make You Bet on Two Today
A reliable Hill source tells me: “I was just told that Stevens had two clerk interviews this past Tuesday for the 2006 Term.” Doesn’t sound like someone who is resigning.
Update: Though Bill Kristol just repeated the two-more rumor on Fox (9:20).
From Tuesday’s Roll Call’s “Heard on the Hill” column: And congratulations to Don Stewart on winning the race to put out the first press release following O’Connor’s retirement announcement. Stewart, the spokesman for Sen. John Cornyn (R-Texas), whipped off a statement like nobody’s business within minutes of O’Connor’s statement. Cornyn, chairman of the Senate Judiciary subcommittee on immigration, border security and citizenship, praised O’Connor for her service and reverence for the law and all that good stuff and, of course, he took the opportunity to warn Democrats against blocking the president’s nominee to succeed her.
Stewart, upon hearing that he was the winner of HOH’s Fastest Flak award said, “Eight years working in the Senate, and the first award I win is for being able to click the ’send’ button quickly.”
“Torture Guy” Is Back
The L.A. Times makes the case against Gonzales for SCOTUS. It’s a very different argument than what you’ll see around NRO. The Times: “This editorial page does not want to see retiring Justice Sandra Day O’Connor replaced by a justice eager to overturn Roe vs. Wade. But that doesn’t mean settling for a nominee who as counsel to the president advised him that it was permissible to disregard core constitutional values and international norms.”
Here’s our editorial on AG for SCOTUS.
Really Now. How Many Senators Would You Ever Even Consider Inviting to a Dinner Party?
From the NYTimes:
[Democratic Staffer] Ms. Greenfeld, who as a young Justice Department lawyer helped prepare Justice Ginsburg for her confirmation hearings in 1993, likens the current situation to preparing for a dinner party without a guest list.
“You don’t know how many are coming, you don’t know what they are allergic to and you don’t even know if you are going to have a chance to go grocery shopping,” she said. “So you are trying to set the table, if you will, based on the facts of the history of what has gone on before.”
Re: The Seamless Garment – Again
I’m pleased that the letter from the head of the U.S. Conference of Catholic Bishops to the President on the Supreme Court vacancy gave pre-eminence to abortion. But I would add to Gerard Bradley’s criticism the fact that the letter displays not the slightest understanding that the role of a justice in the American constitutional republic is distinct from that of a legislator. Simply put, it is not the proper mission of justices, Catholic or otherwise, to “support the protection of human life from protection to natural death” or to “favor restraining and ending the use of the death penalty.”
Roe v. Wade is wrong because the Constitution does not speak to the issue of abortion, not because Catholic teaching condemns abortion. The constitutional obligation of every justice is to restore the issue of abortion regulation to the political processes, not to impose a “pro-life” ruling that the Constitution itself somehow prohibits permissive abortion laws. Conversely, the death penalty is broadly constitutional, and justices should not rule otherwise, irrespective what Catholic teaching says about the morality of the death penalty.
Am I hostile to Catholic moral teachings? Not at all. Indeed, quite the contrary. But in our political system it is Catholic legislators and citizens, not judges, who have the right and obligation to promote the Catholic vision of justice. The reversal of Roe is necessary to enable Catholic legislators and citizens to persuade their fellow citizens to enact legislation that provides significant protection for the lives of unborn human beings. And Catholic legislators and citizens are already free to implement their understanding of additional limits that ought to be placed on the death penalty.
For what it’s worth, everyone seems to believe 10 -11 tomorrow morning EST we’ll be hearing about another SCOTUS resignation.
UPDATE: That’s not the only rumor. Care for a third opening?
GWEN IFILL: I see Sen. Specter nodding to that. How about your idea of an ideal confirmable nominee?
SEN. ARLEN SPECTER: Well, I would pick up on what Sen. Leahy said about getting somebody who is not a graduate from the court of appeals. But to answer your question more directly, I would like to see someone who has a good educational background, a good professional background, somebody who has respect for precedent, who has an understanding of the constitutional continuum where the values of the American people have necessarily shifted over the course of 200 years, and would study the opinions and would try to carry forward the tradition of individualized justice for all Americans.
Back to Bork
More from Newshour:
GWEN IFILL: Sen. Specter, it ideology fair game in these hearings, finding out what people actually believe, not just whether they’re fit, as the president has described, and qualified?
SEN. ARLEN SPECTER: Well, the ideology could come into play if it is very, very, very extreme, and we had the situation with Judge Bork. And when he was for original intent, it seemed to me that that was the most extraordinary view of constitutional interpretation of anybody who had ever been nominated.
For example, when the 14th Amendment “Equal Protection” clause was enacted, the galleries in the United States Senate were segregated, blacks on one side and whites on the other. And that’s what those senators meant by their own intent. Well, that kind of an interpretation didn’t apply in modern days, and if you have something which is just way off the boards, I think it is possible, but it has to be really off the boards.
The Specter of Statesmanship
From last night’s Newshour: We haven’t gotten a nominee yet. If people don’t like the nominee, there’s plenty of time to respond later. You have the interest groups where they’re touting $20 million on each side and from my point of view I think it is totally counter-productive.
We in the Senate realize how important this is. No one needs to remind us. And back in 1987, when Judge (Robert) Bork was up for confirmation hearings, and I was awakened one morning when the famous movie actor Gregory Peck appeared on a commercial, a radio commercial and was criticizing Judge Bork, it almost made me change my vote.
The Seamless Garment--Again
The head of the U.S. Catholic Bishops conference–Bishop William Skylstad of Spokane–recently wrote to President Bush about Justice O’Connor’s successor. Skylstad said that it is not for the bishops to endorse or oppose specific nominees, and he is right: The Church’s pastors should articulate and defend the moral principles at stake in public affairs. They have no special competence when it comes to specifically applying those principles, and surely claim no expertise in jurisprudence. Bishop Skylstad’s letter nonetheless falls short in two important ways. First, on abortion. He calls for jurists who “pre-eminently” would protect human life from “conception until natural death, especially those who are unborn, disabled, or terminally ill.” Bishop Skylstad would have served the Church–and the nation–better had he had used the word “abortion”, and had he urged the president to consider it in more forceful terms. The letter further weakens the message on abortion by unfurling the well-worn “seamless garment.” This is the term Catholics use to describe it when their leaders water down the pro-life message by lumping abortion with other issues–as Bishop Skylstad does in his letter to Bush. He asked the president to consider “jurists who are also cognizant of the rights of minorities, immigrants, and those in need; respect the role of religion and of religious institutions in our society and the protections afforded them by the First Amendment; recognize the value of parental choice in education; and favor restraining and ending the use of the death penalty.” Not content with this laundry list Bishop Skylstad referred to other (unnamed) “fundamental matters,” too. But not to marriage or the family or to the homosexual insurgency or to Lawrence v. Texas, in any way, shape, or form. And that is, to put it very mildly, a real shortcoming in a message meant to identify the moral stakes in the coming appointment.
Just like O’Connor . . .
According to a big article in today’s NYTimes, Senate Democrats say they want to see a judicial nominee who is just like Justice O’Connor. So, does this mean they want someone who believes in judicially enforced limits on Congress’ enumerated powers, including the commerce and spending clauses? Who supports stronger constitutional protection of property rights? Who embraces a pragmatic, law-and-order approach to criminal procedure that rejects absolute enforcement of defendants’ rights? Who supports the constitutionality of school choice? Who (as Wally Olson notes in today’s WSJ) believes out-of-control tort litigation is a serious public policy problem? Who rejects the idea that the U.S. Constitution requires gay marriage?
New Source of Worry
Readers saw that Gonzalez said “My job, currently, is to help the president make this decision” and thought, Acck. What was Dick Cheney’s job before becoming veep? Helping the Bush make the decision
That worry is all part of the plan too.
Clone Rove if it works.
A smart guy doesn’t buy my delusions of O’Connor replacement contentment: “If some folks at the White House aren’t seriously promoting Gonzales, then why have they and their surrogates in recent days been pushing the message that Gonzales would be just fine? If they wanted to stop the criticism, the message would instead be that he’s not a candidate.”
Because Rove is a genius? It’s my only answer. But I thought the twins at the convention mentioning Barbara Bush and Sex and the City in the near same breath was Rovian brilliant too. Who isn’t embarrrassed by their kids now and again?
And, come to think of it, who won the election?
A New Litmus Test?
Interesting that for two whole days, news coverage has been all about Attorney General Gonzales’s being a close friend of President Bush. Is this really earth-shattering news?
Yet all week, the media have largely ignored the outrageous new litmus test announced by the Bad Boy of the Senate Judiciary Committee, Chuck Schumer: Supreme Court nominees’ views on same-sex marriage.
Senators Clash on Questioning a Court Nominee:
“All questions are legitimate,” Senator Charles E. Schumer of New York, a Democratic member of the Judiciary Committee, said in an interview. “What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we’re not going to know their views. But that’s not going to work this time.”