Archive: July 10, 2005 - July 16, 2005
Liberates the President
From Gina Holland of the Associated Press: "Richard Garnett, a Notre Dame law professor and former Rehnquist law clerk, said "the chief justice's decision liberates the president." "The question mark that was hanging over the process is now gone,'" Garnett said. "President Bush has fewer impediments in doing what he has said all along he was going to do -- nominate a conservative justice in the mold of Justice (Antonin) Scalia." "But Supreme Court historian David Garrow said Bush 'has to do something other than a white male appellate judge: whether it is a woman, whether it's Hispanic, whether it's someone outside the judicial box.'"...
By Fred Barbash | July 15, 2005; 8:04 AM ET | Email a Comment
Impact of Rehnquist Staying
The consensus of opinion (see previous posts) is that Rehnquist's decision to stay as long as his health permits at once simplifies and complicates the task for the White House. Pres. Bush has only one choice to make now. But it will be harder for him to satisfy all the various constituencies with a single nomination. I suspect that view is too short-term. It is still a strong probability, as many have written, that Bush will have other vacancies to fill during his presidency. Therefore, the White House can legitimately see the first appointment as one in a series and act accordingly. From the standpoint of vote groupings on the court, Rehnquist's departure and replacement by an equally conservative justice would have not changed the direction of the court. The O'Connor vacancy mattered more and still does....
By Fred Barbash | July 15, 2005; 6:27 AM ET | Comments (9)
More on Rehnquist Staying
From David Savage in the Los Angeles Times: "Columnist Robert Novak went so far as to say on CNN last Friday that Rehnquist's retirement would be announced about 5 p.m. that same day, after Bush returned from the Group of Eight meetings in Scotland. Rehnquist was at work in the Supreme Court building, and court officials said they saw no hint that he planned to quit. "Nonetheless, legal activists, congressional staffers and most Washington newsrooms were convinced that the speculation was correct. "Now that Rehnquist has shown that the speculation was wrong, Bush is faced with a clearer choice -- as well as a dilemma. "On the one hand, he knows he can fill only the seat held by O'Connor. He need not juggle two seats that would have been vacant had Rehnquist followed O'Connor into retirement. Many in Washington had expected Bush to appease moderates with O'Connor's replacement and...
By Fred Barbash | July 15, 2005; 6:19 AM ET | Comments (1)
Rehnquist Staying III
From Linda Greenhouse in the New York Times: "The prospect that the scene on his lawn, with its overtones of a ghoulish death watch, would continue all summer was evidently what drove the famously tight-lipped chief justice to issue his statement..... "Even for the Supreme Court, an institution in which secrecy is prized and information is tightly controlled, the events of the past two weeks have been startling. Justice O'Connor informed her colleagues of her decision barely an hour before the public announcement. Her children learned about it from television. On Thursday night, court officials learned of Chief Justice Rehnquist's statement only when reporters began calling to confirm the Associated Press bulletin. It quickly became obvious that the chief justice had taken matters into his own hands."...
By Fred Barbash | July 15, 2005; 6:11 AM ET | Comments (2)
Rehnquist Staying II
From Lyle Deniston in the Supreme Court Nomination blog (an offshot of Tom Goldstein's SCOTUS BLOG) "Chief Justice William Rehnquist's firm declaration Thursday night that he is not retiring.....both eases and complicates President Bush's opportunity to try to start reshaping the Supreme Court. For the time being, at least, the prospect that he will have two seats to fill, not one, has ended. "On the one hand, this will enable the President and his advisers to focus entirely on the type of nominee they want to send to the Senate to replace Justice Sandra Day O'Connor, who is retiring. That might allow the selection process -- already underway -- to move along a little more rapidly, and in some ways might make it easier. A considerable amount of uncertainty has been allayed by the Chief Justice's announcement. "On the other hand, the President will not be able to engage in...
By Fred Barbash | July 15, 2005; 5:59 AM ET | Comments (2)
Rehnquist Says He's Staying
"I'm not about to announce my retirement," the chief justice said last night. See Charles Lane and Peter Baker in The Washington Post. "I want to put to rest the speculation and unfounded rumors of my imminent retirement," Rehnquist said. "I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits." "In a sign that the announcement reflected a spontaneous personal reaction to the rising tide of speculation, Rehnquist released the statement through his family, which contacted the Associated Press shortly before 9 last night -- rather than putting out the news through the court's public information office, as would usually be done," report Lane and Baker in this morning's Post.This is, of course, a remarkable and dramatic moment in the history of the court. More later....
By Fred Barbash | July 15, 2005; 5:43 AM ET | Comments (2)
Report: Rehnquist Released
Wire services and CNN report that Chief Justice William H. Rehnquist has been released from the hospital....
By Fred Barbash | July 14, 2005; 1:12 PM ET | Email a Comment
Business Lobby
Fortune Magazine, in its July 25 issue, says that the "corporate lobby" is resting easy about the Supreme Court nomination, contrary to some other reporting that has described business leaders as concerned that social issues might trump economic issues in the choice of a replacement for Justice O'Connor. "Turns out," Fortune's John Simons says, that "the White House has already assured the corporate lobby and its battalion of lobbyists that no matter which particular brand of conservative the nominee is, he or she will have strong pro-business leanings. "The U.S. Chamber of Commerce, in fact, has been consulting with the White House on judicial matters since Bush's first term. Over the past five years the Chamber has analyzed appellate court decisions in six areas -- civil rights, employment, federal jurisdiction and preemption, insurance, workplace injury, and liability issues -- and has presented its data to White House officials. Its findings:...
By Fred Barbash | July 14, 2005; 9:44 AM ET | Email a Comment
Morning Papers II
USA Today features a USA Today/CNN/Gallup poll suggesting that three of four Americans think a woman should replace Justice Sandra Day O'Connor and that many of those think a Hispanic woman would be an especially good idea. Sixty eight percent of Americans do not think the court should overturn Roe v. Wade....
By Fred Barbash | July 14, 2005; 5:26 AM ET | Email a Comment
Morning Papers
Chief Justice Rehnquist's hospitalization is the story this morning, with observations from physicians on the prognosis for patients in Rehnquist's situation, to the extent that anyone knows what it is. Some see his fever as relatively routine. One calls it "ominous." No one has any further information on the Chief's plans or on his condition. The White House heard about it from the press, the papers all report, which seems to confirm that Rehnquist has been no more communicative with the administration than he has with the press. The New York Times also has an informative article by Sheryl Gay Stolberg on attempts by Senators in the "Gang of 14" to function as a "powerful" force in the upcoming Supreme Court confirmation process. They plan to meet today (Thursday), she reports, to talk about strategy. Charles Lane, in the Washington Post, reports also that "White House officials weighing the...
By Fred Barbash | July 14, 2005; 3:14 AM ET | Email a Comment
Rehnquist Hospitalized
Chief Justice William H. Rehnquist is in Arlington Hospital for observation with a fever, the Supreme Court said today. A statement from the court said Rehnquist was taken by ambulance last night and admitted for observation. More as the story develops....
By Fred Barbash | July 13, 2005; 2:43 PM ET | Comments (4)
NARAL vs. Falwell
Nancy Keenan, president of the NARAL Pro-Choice America, expressed concern in a press release today about the administration's inclusion of Jerry Falwell among those consulted for views on a replacement for Sandra Day O'Connor. Citing a story in today's New York Times that mentioned the consultation with Falwell, Keenan says "We're glad that President Bush is reaching out for advice, but this isn't the direction we had in mind."...
By Fred Barbash | July 13, 2005; 1:39 PM ET | Comments (11)
Bush Comments
President Bush was asked a question about the court at the photo op this morning before his cabinet meeting. Nothing obviously new in his responses, but here they are verbatim:QUESTION: "In your search for a replacement for the Supreme Court, when do you anticipate beginning to interview potential candidates? And would you consider a candidate (inaudible) people who don't have experience as a judge?" BUSH: "We had a very good meeting yesterday. The vice president and I met with leaders of the Senate -- four members of the United States Senate -- and we talked about a lot of subjects.Just one of the subjects was that very subject: Would I be willing to consider people who had never been a judge. And the answer is: You bet. We're considering all kinds of people: judges, nonjudges. Laura gave me some good advice yesterday, which is to consider women which, of course,...
By Fred Barbash | July 13, 2005; 11:25 AM ET | Comments (3)
Gonzales
Fred Barnes, in this morning's online Weekly Standard, says he thinks Attorney General Alberto Gonzales is out of the running and may not have actually been in the running, despite the evident perception on the right that he was. "Though he defended Attorney General Alberto Gonzales against conservative critics," Barnes writes, "President Bush now appears highly unlikely to nominate Gonzales to replace retiring Supreme Court justice Sandra Day O'Connor. Nor is Gonzales expected to be chosen to fill a second vacancy on the high court should Chief Justice William Rehnquist or another justice steps down in the near future. "The president, of course, could change his mind and pick Gonzales. But a better bet now is that he will choose a woman, an option recommended by First Lady Laura Bush. Judge Edith Brown Clement of the 5th U.S. Court of Appeals is considered a possibility. Bush, who met with...
By Fred Barbash | July 13, 2005; 11:19 AM ET | Email a Comment
The Morning After
The nomination stories by major morning papers focus on the only visible activity in the campaign for the court, the president's meeting with Senate leaders yesterday. In The Washington Post, Dan Balz and Mike Allen stress disagreement between Democrats and Republicans over the nature of "consultation" required. "Unless Bush shares the names of potential nominees, they [Democrats] say, the process will have been a charade that could affect the confirmation battle. "There has to be more consultation," Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee, said after the meeting. "This was only a first step."Republicans argue that the consultation underway now is unprecedented and dispute the notion that the White House should be sharing names, the Post says. Newsday's Tom Brune highlights the same theme, the disagreement over the depth of consultation, as do Jeanne Cummings and John D. McKinnon in the Wall Street Journal. The New...
By Fred Barbash | July 13, 2005; 5:59 AM ET | Email a Comment
Prado, Sotomayor and Gregg
In the hours after key members of the Senate breakfasted with the president, stories began to surface of names some of them had mentioned during the conversation.Among them, according to a story from Capitol Hill by the Reuters news agency, were Judges Edward Prado of the 5th U.S. Circuit Court of Appeals and Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals. Reuters attributed the information to "to sources familiar with the talks by Bush and key Senate Democratic and Republican lawmakers." Sen. Patrick Leahy, the ranking Judiciary Committee Democrat who attended the meeting, "declined to confirm the two names," Reuters said, "but told reporters both could easily win Senate confirmation." Reuters adds: "Senate Democratic Leader Harry Reid of Nevada, without disclosing names floated at the meeting, said he planned to get back to the White House to recommend still another, Republican Sen. Judd Gregg of New Hampshire." For...
By Fred Barbash | July 12, 2005; 5:58 PM ET | Comments (5)
No Battle Stations Today
Charles Lane, who covers the Supreme Court for The Washington Post, reports: In a sign that Chief Justice William Rehnquist isn't quitting today, the court's public information officer, Kathy L. Arberg is not at battle stations. In fact, she spent two hours between 12 and 2 p.m. sitting in on a forum sponsored by the ACLU--National Capital Area on the recently concluded Supreme Court term. Also, Lane noted that possible nominee John G. Roberts Jr, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, has been out of town since last Friday, teaching in London for a two-week stint. Either he's not going to be nominated soon, or he'll have to do a quick turnaround....
By Lexie Verdon | July 12, 2005; 3:41 PM ET | Email a Comment
Cornyn on Senators Meeting With Bush
The following statement was just issued by Sen. John Cornyn (R-Tex.), member of the Senate Judiciary Committee and former Texas Supreme Court justice: "The meeting at the White House on Tuesday is yet another example of the President's unprecedented outreach to the Senate, and to both Democrats and Republicans."The President and his staff have already reached out to 60 senators--60 more than the Constitution requires. My concern, though, is that for some senators and their allies in the liberal interest groups, no amount of consultation will ever be enough. But I would remind them that consultation does not equal co-nomination. The Constitution makes clear that it is the President who must choose the nominee--the Senate's role is to advise and consent on that nominee once he or she has been nominated."...
By Fred Barbash | July 12, 2005; 10:54 AM ET | Comments (6)
Laura Bush Wants a Woman II
President Bush, upon being informed that the first lady, speaking on the "Today" program, said she would like him to appoint a woman to replace Justice Sandra Day O'Connor, says he can't wait to hear this from her in person. "My wife, I talked to her yesterday....Listen, I get her advice all the time. I didn't realize she had put this advice in the press. I can't wait to hear her advice in person when she gets back." See previous post on this subject and on senators visiting White House, about which Bush said: "I did have a good breakfast with four United States senators. I asked their advice" and "how fast could they get to the hearings" once a name goes forward. "My only question to them is what will it take to get a person confirmed by early October. ... We talked about prospective nominees. They have opinions...
By Fred Barbash | July 12, 2005; 10:24 AM ET | Comments (3)
Laura Bush Wants Woman Justice
The first lady told the "Today" show's Ann Curry that she "would really like for him to name another woman." She was speaking from her travels in South Africa. Here is a verbatim excerpt: CURRY: "Let me shift for a moment to a subject that a lot of Americans care a lot about, and that is what will happen in the wake of Justice Sandra Day O'Connor retiring. Do you want your husband to name another woman to the Supreme Court?" BUSH: "Sure, I would really like for him to name another woman. And I admire and respect Sandra Day O'Connor so much. She's been a friend that I've loved seeing whenever I had the chance when I'm in Washington." "But I know that my husband will pick somebody who has a lot of integrity and strength. And...
By Fred Barbash | July 12, 2005; 10:08 AM ET | Comments (1)
Senators at the White House
Senate leaders, GOP and Democrat, met with the President this morning for a first discussion of the confirmation process. Attending were Majority Leader Bill Frist (R-Tenn.), Minority Leader Harry Reid (D-Nev.), Judiciary Committee Chairman Arlen Specter (R-Pa., ) and ranking Judiciary Committee Democrat, Patrick Leahy. The main points: Reid said he was confident a "consensus" nominee would emerge. He did not say why he was so confident. Specter and Leahy urged the president not to choose a nominee from the federal appeals court, on the grounds that someone with "practical" experience would be better. Specter hinted, but did not say explicitly, that the President agreed on that. Frist and others said they assured Bush that a nominee could be approved by the opening of the Court's next term. See below for some excerpts from their comments: REID: "This certainly is a good first or second step. The president has...
By Fred Barbash | July 12, 2005; 10:03 AM ET | Comments (2)
Poor Sap
"It's going to be awful. I really feel sorry for the poor sap who gets the nomination," John Danforth, a former GOP senator from Missouri who shepherded Clarence Thomas through the confirmation process, tells Knight Ridder's Todd Gilman. "I think the members of the Judiciary Committee would just as soon be left alone," says Danforth. "But there are these very well-organized, well-financed groups out there that are highly energetic and just exceedingly mean."...
By Fred Barbash | July 12, 2005; 5:36 AM ET | Comments (12)
Bork on Borking
Peter Baker in this morning's Washington Post:The lessons of Robert Bork's failed nomination are shaping the Bush White House deliberations in other ways, presidential aides said. Rather than allow his nominee to twist for many weeks waiting for hearings that will not start until after the August recess, Bush has delayed announcing his selection to truncate the window of vulnerability. And already Karl Rove, the White House deputy chief of staff and Bush's top political strategist, has called for limiting the scope of confirmation hearings, saying ideology should not be a subject of senators' questions as it was 18 years ago. In an interview last week, Bork, 78, offered this advice to the nominee: "Tell them you're not going to say how you're going to vote because that's not proper interrogation. If you can't get away with that, I think you have to not say how you're going to vote...
By Fred Barbash | July 12, 2005; 3:55 AM ET | Comments (3)
A Good Story
As the nominee-guessing game continues, Ken Herman of the Cox News Service provides a useful survey of Bush's tendency to choose justices for the Texas Supreme Court whose personal backgrounds present a "story," specifically, a story of struggle or of ascent from humble beginnings or of service to others with struggles and disabilities.Herman notes that of Bush's four Texas Supreme Court choices:*One, Greg Abbott, was wheelchair-bound years because of a horrible accident;*Another, Deborah Hankinson, was a former special ed teacher who, as Bush said at the time, brought "unique compassion" to the court.*A third, Alberto Gonzales (now U.S. Attorney General) who, as the President said when he appointed him, "grew up in a two-bedroom house in Texas with his parents and seven siblings" and was the son of migrant workers....."Herman recalls the pride Bush has taken in describing Janice Rogers Brown, recently confirmed for the Court of Appeals in Washington,...
By Fred Barbash | July 11, 2005; 4:01 PM ET | Email a Comment
Rehnquist, Stevens.
Standby for announcement on Rehnquist today, or not. Supreme Court justices are easy targets for rumor-mongering because they rarely, if ever, call up to say it ain't so, particularly when it comes to their plans for retiring, or not, which they have traditionally held so close that even their colleagues profess not to know. Rehnquist was presumed to be retiring before, or upon, the final day of the court's term. He was said to be announcing his retirement on Friday by columnist Robert Novak. When that proved untrue, he was said to have been asked by the White House to postpone his announcement until Monday--today--so that the President is available to comment afterwards. Meanwhile, Justice Stevens is not retiring, we are confidently told, because he has started hiring law clerks for next term. Then again, O'Connor hired law clerks for next term as well, so that's no indication of...
By Fred Barbash | July 11, 2005; 6:04 AM ET | Email a Comment
Justice Hatch?
Sunday's Meet the Press, Orrin Hatch, asked if he would accept nomination to the Supreme Court: HATCH: I think if anybody was asked, they would accept. Now, look, I think sometimes we look too much to the judiciary for these nominees. And once they've served in the judiciary, they're, kind of, in a cloister. They really are not in the public domain, so to speak. And I think it might be good to have somebody from outside who basically understands what the real world's about because they've lived in it over the last 10 or 15 or 30 or 40 or 50, 60 years. The fact of the matter is that we've done very well picking jurists. We also could do very well picking people who are not just political but people who could bring a human dimension to things. RUSSERT: Senator Schumer? SCHUMER: Well, I enjoy working with Orrin...
By Fred Barbash | July 10, 2005; 1:02 PM ET | Email a Comment
Say What?
From Sunday's Face the Nation: GREENBERG: Senator Specter, if I could, Senator Durbin told The Tribune, The Chicago Tribune, that a couple of senators had actually approached Justice O'Connor to see if she would be interested in this a month or so ago. Are you aware of that, or were you one of those senators? SPECTER: Well, no, I was not one of those senators. My view is that I can best perform the role I have is if I don't make recommendations. But I did hear about it, that there had been senators who had made that suggestion to chief -- to Justice O'Connor. And the response that I heard was that she said she was flattered, that she didn't say no. I think it would be quite a capping to her career if she served for a time, maybe a year or so. She has her reasons for...
By Fred Barbash | July 10, 2005; 12:45 PM ET | Email a Comment
Specter on CJ O'Connor: WOW
On Face the Nation: Specter: There's been another interesting line of speculation, and I would denominate it as (inaudible) speculation, when everybody was looking two weeks ago Monday for the chief justice to step down, and then no one did, and then people were surprised by Justice O'Connor. There was some speculation in the intervening week that Justice O'Connor might be waiting to see what Chief Justice Rehnquist did, perhaps with a chance to become chief justice herself. And there had been a fair amount of talk about that possibility. And in her letter of resignation, as you know, she conditioned it on the confirmation of a successor. So there's some flexibility. Who knows? Some speculation is that she might reconsider if she were named chief justice, and a confirmation... SCHIEFFER: Oh, so you don't count her out as a possibility for chief justice, even though she said she's retiring?...
By Fred Barbash | July 10, 2005; 12:40 PM ET | Email a Comment
Specter on Rehnquist Resignation
On Face the Nation: "My own analysis is that the chief does not intend to step down as long as his health holds out. Having being engaged in a bout with cancer myself, I know that it's good to get up every morning and have something that you have to do, something that is important to do. If the chief's health holds up, I think he'll stay. But I believe he may not know that, really, from one day to the next, one week to the next, one month to the next. So there's not much he can say to the press. And if he were to say, It's a matter of my health, every day he'd be asked about his health. But I think he's going to stay as long as he can."...
By Fred Barbash | July 10, 2005; 12:36 PM ET | Email a Comment
Pryor and Graham
From ABC's Stepanopolous show: (Sen. Mark) Pryor (D-Ar.) Well, I think, you know, any senator can ask whatever they want. But I do think that there are some realistic parameters around that that we all need to understand. And one is, if there's a pending case, or if it looks like there's an issue that's coming to the Supreme Court's doorstep, it's really not smart or not fair to ask that person to make the judgment right now on how they would decide that case. And I think most people would agree with that. All of my colleagues, pretty much, would agree with that. So there are some limitations. But hey, we can ask, you know, and it's up to the nominee to see if they want to answer those questions. But, as far as I know, from the beginning of this country's history, senators have asked Supreme Court nominees...
By Fred Barbash | July 10, 2005; 10:47 AM ET | Email a Comment
Courtocopia
The Sunday Talk shows are court-laden as well. FOX NEWS SUNDAY (WTTG), 9 a.m.: Sens. Dianne Feinstein (D-Calif.) , Mitch McConnell (R-Ky.) and Lindsey O. Graham (R-S.C.); Nan Aron , president of Alliance for Justice; and C. Boyden Gray , chairman of the Committee for Justice. THIS WEEK (ABC, WJLA), 9 a.m.: Sens. John Cornyn (R-Tex.), Edward M. Kennedy (D-Mass.), Charles E. Schumer (D-N.Y.) and Arlen Specter (R-Pa.); and musician Toby Keith . FACE THE NATION (CBS, WUSA), 10:30 a.m.: Sens. Joseph R. Biden Jr . (D-Del.) and Orrin G. Hatch (R-Utah); Ralph G. Neas , president of People for the American Way; and Jay Alan Sekulow , chief counsel for the American Center for Law and Justice. MEET THE PRESS (NBC, WRC), 8 a.m.: Sens. Christopher J. Dodd (D-Conn.), Chuck Hagel (R-Neb.), Patrick J. Leahy (D-Vt.) and Specter ; and Rep. Duncan Hunter (R-Calif.). LATE EDITION (CNN), noon:...
By Fred Barbash | July 10, 2005; 10:11 AM ET | Email a Comment
Courtocopia
Linda Greenhouse, in the Times' "Week in Review," reminds us that despite the occasional turmoil of the O'Connor years of the court, nothing much actually happened. "Continuity," ultimately, was its theme, with an eventual tilt to the left rather than to the right, despite the ascendance of Rehnquist to Chief Justice. Linda's excellent piece should also remind us, again, that Presidents have generally failed in attempts to steer the direction of the court through the nomination process. It is true of justices as it is true of mutual funds that past performance provides no guarantees of future results....
By Fred Barbash | July 10, 2005; 9:34 AM ET | Email a Comment
Courtocopia
Among Sunday's offerings, also in the Post's Outlook section, comes yet another revisionist critique of Justice O'Connor, probably a reaction to the near beatification (sp?) of O'Connor her resignation at the hands of Democrats, who now hail her as the perfect example of the sort of "conservative" Republicans should put on the court. "O'Connor has been the master of self-referential, "I know it when I see it" standards for interpreting the Constitution," writes former Harry Blackmun clerk Edward Lazarus. "In the current rush of praise, O'Connor-philes new and old extol what they see as the judicial restraint in her "incremental," or "minimalist," style of judging. These can be judicial virtues. But they don't properly describe O'Connor's approach. While her malleable tests may often minimize the reach of particular decisions, they maximize the power of an individual justice at the center of the court to define the Constitution according to...
By Fred Barbash | July 10, 2005; 9:23 AM ET | Email a Comment
Courtocopia
The nation's press all but ignores the Supreme Court most of the time. Only at the end of a term, or at the time of a vacancy, does that coequal branch of government get noticed--and then with a vengeance--as demonstrated by the Sunday papers, most of which managed to generate interesting court-related stories despite competition from the London bombings and Hurricane Dennis. On the Post's op-ed page, George Will touts the Fourth Circuit's J. Harvie Wilkinson as the perfect nominee. Will, interestingly, takes issue with the conservative notion, posited to counter the liberal theory of the "evolving constitution," that constitutional law can be divined by Supreme Court justices from the text of the constitution, supplemented by the utterances and scrawls of a handful of Founding Fathers. "Dismay about abuses of judicial discretion drives some conservatives into a misguided quest for a jurisprudential holy grail -- a theory of constitutional...
By Fred Barbash | July 10, 2005; 9:15 AM ET | Email a Comment
