Redstate

. . .for those with the time and inclination to send politely worded emails to a certain group of seven Republican senators, commenting on Judge Roberts' record and noting that there is no reasonable way that opposition to his candidacy should justify a filibuster.  No need for anger or veiled threats to oppose the senator--just a simple statement.  Then wait to see what they do.  If the filibuster comes, and the seven do not step up to the plate and crush it--it will be time to start grooming primary opponents:  enough will be enough.

I am going to reserve comment on Roberts, except that at first glance he seems exactly as you say and I expect on second glance you will continue to be right.

I strongly doubt that Reid will try to Filibuster.  Barring some Anita Hill-esque revalation, or a complete stonewalling by the nominee at the hearings, I think the dems will let this one go, I mean, what leverage do they have?

Not only that, but the left wants to focus completely on Karl Rove for now, this guy isn't completely rotten to them, so they are going to go after the bigger fish.

My prediction 80-11 confirmation...

or is "crushed," we could send an apology for going crazy over The Deal that confirmed the President's nominees.  The more this unfolds, the better McCain and the Dealers are looking.  Uphold Senate tradition, return to up-and-down votes for qualified nominees, and give both the left and right black eyes.  McCain's stock bumps up a notch.

Schumer and Leahy know that the Republicans won't stand for it.

So they'll try to pry away a few Repbulicans by demanding document after document from Roberts' days as a litigator and during his period at the Solicitor Generals office.

They will try to delay this and kill it. Spector can be had. Cornyn cannot. We must allow no deviationism on this subject.

The emails must warn against dilitory tactics.

The only problem I see arising from the, by near universal accounts, excellent nomination for Justice today of John Roberts, Jr. is that he may be a touch TOO uncontroversial -- at least, vis-a-vis the Rove-a-Dope.

The endless coverage, NPR-generated hysteria would've gone on for weeks if it had been Judge Edith Jones (now, two-times a bridesmaid, never the bride...unless they're saving her for Supreme Court Chief Justice).

Judge Jones has a monumental paper-trail as a staunchly fierce Conservative, which would've buried the lamestream media-led Rove story -- a story which is on its dying legs, and simply not resonating with the majority of average Americans, it must be said.

But with Judge Roberts, what's to feel morally outraged by?

He's personable; brilliant; and has a touch of youthful clean-cut good looks which will play very well with moderate Americans, in both hued states.

Heavens, he even has adopted children.

As a jurist, but even moreso as a man, he's perfect for the SCOTUS.

What a savvy and well-thought move by the President and his staff.

vbspurs

I think you're exactly right with the idea they'd try to delay the process.

Did anyone else notice that Schumer has already telegraphed that he plans on dragging this out?

For these reasons, it is vital that Judge Roberts answer a wide range of questions openly, honestly and fully in the coming months (emphasis added).

It shouldn't take months. It should take weeks.

How much has changed since he was confirmed for his current position in 2003? And they dragged out that process enough (I think he was nominated in 2001). Do they expect us to believe they've never heard of Judge Roberts before? He's no stealth candidate. If they need extra time, it's to look for dirt or try to pry information from him that's it'd be inappropriate for him to discuss.

Don't get me wrong, I'm not suggesting he isn't qualified or up to the task.  And I know nothing about the guy other than he worked for Ronnie and clerked for Rehnquist.  But to claim that he is "a long serving judge on a Circuit Court" seems like a bit of a stretch.  

From everything I can tell he has all of 20 MONTHS behind the bench.  

It is a safe pick because there is essentially no paper trail for his decisions on social issues (which is what the typical voter is concerned with) what with the D.C. circuits' near constant attention on admin issues.  (Bo-ring)

Remember Clarence Thomas?  These hearings dominate cable news.  There's no way that Dems will get away with delaying this for months.  The public would turn against them.

And the buzz right now is that Roberts is universally respected in DC and won't garner opposition from more than half of Senate Democrats.

Relax.  It'll be fine.  Roberts will be confirmed by the time the Court returns in October.

... but I've got to admit that it has worked out to our advantage, especially in the context of this nomination.

To me the key question is this... Had nerves still been raw from executing the nuclear option, would we be seeing the lovefest we see today, with moderate Dems fearless of joining the GOP in supporting such an exceptionally qualified nominee? The Deal has (temporarily) cleared the air on the Hill such that any sudden move on either side to disturb Balance in the Force is perceived as taboo. And that leaves Reid in a quandary as to how to oppose Roberts with two hands tied behind his back. The Deal has frozen Democratic opposition at the starting gate, making it look and sound illegitimate. Had we removed the filibuster, it's easy how to see how tooth-and-nail opposition to any nominee would have been spun as legitimate resistance by an aggrieved minority.

Of course, had the nuke option been exercised, this all would have been moot. Roberts' confirmation would be assured, albeit with 55-60 votes instead of 60-70.

As my screenname suggests, I'm an ends-justify-the-means kind of guy. It's still possible the Dems could bait and switch us. But right now we are basking in heaps of political capital at least partially provided for by the hated Deal.

Here is who I think will vote for him in the end:

Pryor

Lincoln

Landrieu

Nelson - NE

Nelson - FL

Lieberman

Inoyoue

Byrd

Conrad

Baucus

Salazar

There could be others, such as Dorgan, Stabenow, even Feingold and Dodd.  

You know, I respect you a lot, but your reasoning on The Deal, especially in this post, grows more bizarre by the minute.

Do I properly understand your contention that this nomination proves that The Deal is great because Bush nominated a candidate that more than 4 Democrats could support? Um... if that were the case, wouldn't they get cloture anyway?

And for that matter, wouldn't it be better if Bush could say, "A Pox on your House" and nominate with a wide paper-trail of liberal destruction like Garza? That's not preferrable?

If the goal was to dominate the headlines, then somebody more established (like Brown) would have guaranteed more column inches for a longer period of time.  I think there will be some impassioned speeches, lots of roundabout Roe questions (and skilled non-answer dancing Roberts), and perhaps the tearful testimony of a 12 year old girl who now has to tell employers that she has an arrest record.  Followed by pictures of Roberts with happy little black children, etc...

Then, a 61-39 confirmation.  Democrats will not fillibuster.  That little nuke is tucked away for the CJ job.

Not mentioned yet: Is Bush the first president to make SCOTUS less reflective of the makeup of the United States?  I wouldn't be surprised if this comes up as a wedge issue to peel away Republican-leaning professional white women (see Laura) who voted Bush in 2004.  My wife is in this camp, and she was pissed before I ever thought of it, especially after the Clement tease.  1/9 African American and 1/9 Jewish is at least close to the actual Census data.  But 1 woman out of 9, versus 51% of the population?  Oops.

BTW, the press distraction everybody is crowing probably doesn't matter if indictments get handed down, which seems like a possible step in Plamegate:

href="http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&amp
;articleId=10016">Rove may have lied to FBI

Good news for those conservatives who believe that the rule of law is paramount over a heated social agenda.

Roberts, beyond having judicial temperament, is principled. He is more in the mold of Rehnquist than Scalia and can be counted on to hold the line on state's rights whenever Scalia lets his social agenda blow his legal principles in the wind.

Overall an upgrade on the legally incoherent O'Connor. Look for Scalia to be margianalized within the conservative block as a result of this.

--klepto

Or prepare to post elsewhere.

Silliness is rampant.

You clearly know nothing of Scalia's jurisprudence. Head back to throwing darts at a picture of Jim Dobson and leave the adults to debate this.

Three paragraphs on SCOTUS?

BTW, etc., is a wander. Play nice or play elsewhere. I'm sure the Kossacks are busy playing with Rove dreams right now.

you know, conservatives are legitimately divided on which is most important.  i tend to be more of the scalia front, and am not a states rights over all else kind of guy.  that's just my view.  i sympathize with it to an extent but i'm not "all there".  i love scalia and rehnquist.  

Won't it be months before they even start on this?

Another thing Sen. Schumer emphasized (with a, what do you call it - a sneer, a snark, a whiff of contempt) was that Judge Roberts had worked in private practice representing "others"!!!!!!!!!!! OHMIGOD - yes - it's true - "others".

That could lead into a whole series of questions, requests for production of records, and lengthy discussions of confidentiality, conflict, and attorney-client privilege. All interesting, but essentially worthless to the task at hand. But, guilt-by-association-with-your-client has a certain appeal to some viewers, so I'm sure we'll see a pilot episode or two.

Don't get me wrong, but if he has less than 10 years as a judge, I don't think he should be put in the big seat!

What else did he do that makes him honorable to this seat?

He's also the 1st president to appoint a justice in the 21st century, the first president to replace a female justice, the first president to be a son and brother of a president - oops, now I've wandered off topic.

As an adult, I'm sure you know more about Scalia's jurisprudence than I do (I guess it's jurisprudence if sophistry is still a respected school of philosophy).

Beyond the obvious contradictions in Raich, you have Bush v. Gore -- which Rehnquist got wrong too, BTW. We may have liked the result, but the reasoning in the majority decision was flawed. To make matters worse, the textualist Scalia argued that the founding father's never intended that the people vote directly for the President.

Which is it, a close reading of the law or an interpretation as to the intention of the authors of the law? Maybe Mr. Adult can explain that to me. :-)

P.S. Why would I throw darts at Dobson?

I'm a woman, and I'm not outraged at this alleged "oops" in not going for the obvious -- another woman to replace SDO.

Tonight, Susan Estrich went on Greta van Susteren to say she was "disappointed" that the lead story today (the media gaggle speculating that it could be Judge Edith Clement -- no surprise MSM were plumping for her, since she was the least Conservative of the choices) turned out to be untrue.

She, a 50-something boomer and Democratic operative now plying her whiney-voice trade on FN, would be disappointed.

But my generation is not.

Much much better to get a Justice appointed who shares my views, than one who shares my gender.

vbspurs

Beyond the obvious contradictions in Raich, you have Bush v. Gore -- which Rehnquist got wrong too, BTW. We may have liked the result, but the reasoning in the majority decision was flawed. To make matters worse, the textualist Scalia argued that the founding father's never intended that the people vote directly for the President.

Not only did the founding fathers not originally intend that, but that's not how it was DONE for numerous Presidential elections (someone who's less tired can give you the exact number).

As an adult, I'm sure you know more about Scalia's jurisprudence than I do (I guess it's jurisprudence if sophistry is still a respected school of philosophy).

No need to prove the first part of the sentence with the parenthetical, genius.

Beyond the obvious contradictions in Raich, you have Bush v. Gore -- which Rehnquist got wrong too, BTW. We may have liked the result, but the reasoning in the majority decision was flawed. To make matters worse, the textualist Scalia argued that the founding father's never intended that the people vote directly for the President.

Ever read the Constitution? Indeed, ever read anything about, oh, American history? These are of course rhetorical questions.

Which is it, a close reading of the law or an interpretation as to the intention of the authors of the law? Maybe Mr. Adult can explain that to me. :-)

I doubt seriously my ability to explain anything to you, and I've tutored Order of the Coif folks in my time.

that what we're talking about here

to hold the line on state's rights whenever Scalia lets his social agenda blow his legal principles in the wind.

is that some conservatives like to smoke pot too? Particularly if they have cancer?

Sometimes I have to have this stuff translated for me.

I wouldn't presume to answer for the indefensible.

...Article II, Clause 2. Although I guess you missed  the bit about "...in such Manner as the Legislature thereof may direct..."

So direct voting for electors is OK, if the state legislature has directed this to be the case. You have an excellent point that the founding fathers may have indeed not intended for the voters to vote directly for the president (and in fact, they still don't). My question was...wait for it...why Scalia the textualist was all of a sudden wrapping himself in intentionalist rhetoric?

Because he takes the words as they meant at the time?

Fill in your own blanks. I thought his concurrence was the only part of that whole imbroglio that made any sense.

Since the announcement of Justice O'Connor's retirement there has been a never-ending litany from people who ought to know better about how "we ought to nominate a woman" or "we ought to nominate a Hispanic" to fill the spot.

In a way, I'm almost glad that President Bush ignored them all and just picked the candidate that he thought was best for the job regardless of whether it was another "middle aged white male."

As far as racial/gender diversity on the court, who cares?  I'd be just as happy with a court that looks like Janice Rogers Brown and Clarence Thomas so long as they thought like them too.

Since when has seniority been a criterion in who is a good judge and who isnt?

John Paul Stevens is a useless judge ( A step below Ginsburg, obviously). He is 85. Thomas is much younger... and a much better judge.

Seniority is not a factor. Intelligence... A desire to stick to law interpreting, not law making... Impeccable credentials... A strong character... These are things to be valued in a Supreme court judge. Not the number of grey hairs on his skull.

Sure he has only served as a judge for 20 months. (Due to the democrats fault, dont you forget.) But he has argued 39 cases in front of the Supreme Court. There is no doubt among sane people (I discount Hillary, Schumer and Teddy here) that he is a supremely gifted lawyer and thinker.

What makes you think he wont do a fine job?

I guess you missed my question about the textualist vs intentionalist legal rhetoric of Scalia. Yes, I've read Article I, Section 1, Clause 2. Yes I know that the founding fathers likely did not intend for the people to vote directly for president (which they still don't, BTW).

That wasn't my point. The point is that Scalia, Mr. "Forget about the author's intent, just read the text," found it convenient to use the rhetoric of intentionalism. Why is he inconsistent when it suits him?

Since you are such and adult legal scholar, teach me.

Which would be what you missed in my response.

Keep trying.

So you would rather have John Roberts instead of one of the two Ediths or Brown?

I can't put myself in your shoes, but I can say that if the Supreme Court was 7/9ths female, and a female president (President Hillary, to make this hypothetical more surreal) made the court 8/9ths female, I might have a little tickle in the back of my mind.

Several intelligent conservative bloggers were happy during the "Clement Bubble of 2005" this morning because if Roe is significantly changed, and the Supreme Court redefines what control a woman has over her body, then they would like for at least one woman to be in the majority.

Bush has a commendable record of elevating a diverse set of qualified people to high positions, one of his only claims to the "Big Tent" Republicanism that punctuated the 2000 campaign.  It is surprising that he has broken with that record, and it makes me think that the CJ spot might be more likely to go to one of the Hispanic men or one of the women on the list.

 

"Compromise makes a good umbrella, but a poor roof; it is temporary expedient, often wise in party politics, almost sure to be unwise in statesmanship." - James Russell Lowell

I thought this was politics at its best. We got a conservative nominee... Liberals get someone they cant truly filibuster (not that they wont try)

I agree... a Luttig or JRBrown would have absolutely rocked Washington off the radar. But i'm happy with what we got.

There's still the CJ post to be filed :)

Scalia is the leading proponent of textualism within american jurisprudence. To quote from his opinion in Green v. Bock Laundry Machine Co.:

The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated--a compatibility which, by a benign fiction, we assume Congress always has in mind.

If you like, dig through some of his law school speeches and you'll find him lamenting the "living constitution" and urging a close reading of the text.

So, Mr. Adult, what's next?

Is that what it's come down to? Your posts have ever less content.

I'm through with you.

Which is, in his own words, and to common sense, different from constitutional interpretation; but put that to the side.

This:

The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it)

Is what I said in the first place.

I wish you good luck.

Come on back. I'll be here in five years.

I see where you are coming from, and I don't doubt he is a good lawyer and probably a good judge too. He might make a fine Supreme some day.

I'm not talking about age as a factor, but how many years one has practiced as a judge. I could be wrong of course, but I wouldn't hire him for the position, he lacks experience in the seat, so to speak, and that makes him a risk.

Don't most Senior positions naturally require experience? I'm curious how long other Supremes were judges before they took up the big seats? I'll look up Thomas and Stevens to see if there is a correlation.

Back in a flash...

I guess there are some conservatives that like to smoke a little dope. I'm not one of them (gives me headaches somethin fierce).

The point is that Scalia abandons his legal philosophy whenever his social agenda gets in the way. It undermines the impact of his decisions and dilutes his legacy.

Is what I said in the first place.

Neither the textualist nor the intentionalist in me can find anything so eloquent or meaningful in your part of the thread. You've been full of nothing but insults and noise.

The "Clement is the appointee" stories today.

I should know the President by now -- he doesn't play race or gender cards: he merely refines his hand.

When it's appropriate to appoint a minority he does so, but the most important thing to him is not some census-question answer, but

<bl>1) The character of the person involved</bl&gt

<bl>2) Same basic philosophical bent</bl&gt

<bl>3) Competence</bl&gt

<bl>4) Loyalty</bl&gt

In all of these, John Roberts seems to be, on first impressions as well as some researching tonight, the template Bush appointee.

Judge Clement, less so. Much less so.

As for Cal Dreaming -- I repeat, for us real Redstaters -- it's not the gender that matters. It's the ideals.

Goodnight all.

vbspurs

Hint:

Because he takes the words as they meant at the time?

Chew on that.

I read through your part of the thread and see nothing but references to some special knowledge which you never manage to articulate -- "If you knew what I know..." -- and some patently false statements, such as that the arch textualist Scalia is not a textualist.

Again, what have you added to this thread? What has anyone learned from what you've contributed?

All I saw was a hackneyed smear of Scalia by someone who doesn't understand his jurisprudence, and I responded merely by noting that the original poster clearly didn't understand that about which he spoke.

Sort of a public service announcement: Very little substance, just a quick alert to all involved.

Once again, for the record: Scalia applies the words as they meant when the document was adopted. It is not what you mean when you refer to "textualist" or "intentionalist" or indeed anything else to which you've referred in this benighted series of threads.

It is, however, a coherent legal philosophy, and nicely dovetails into the concurring opinion in Bush v. Gore.

Have a nice day.

Rehnquist - 0 years as judge - straight from the justice dept. to SCOTUS.

O'Conner - Az. Sup Ct. to SCOTUS.

Don't even visit the 60's, let alone the 19th century.

If anything, my only worry is the DC-insider aspect of this. We're getting a narrower range what with elevating the DC Circuit to be the triple-A pre-requisite. At least he picked the best there, and has replaced the DC Circuit with the best, but there are arguments to going outside DC (but not Souter) and west of the Mississippi.

The abscense of an "are" caused me to skip the one meaningful sentence you've posted for some reason.

So, I think we are in agreement. The text as it was meant at the time does not prohibit people voting directly for electors. Perhaps the intent of the authors does. Why does Scalia abandon your eminently sensible principle in favor of intent in this case?

Maybe an argument or two? A reference to an opinion or two? Show me the error of my ways oh master.

Because it was commonly understood that the legislatures would control the voting for the President. Nothing in the concurrence of Bush v. Gore addresses this, which in turn leads me to some questions:

(1) Did you actually read the opinions?

(2) Do you understand that the distinction is between the legislatures and the courts, not electors and people?

(3) Do you see anything that Scalia wrote about the intent of the drafters in that?

(4) Did you know Rehnquist wrote the concurrence?

If you think it was Robert's idealistic devotion to the law or a single conservative constitutional doctrine (which Thomas and Klepto are flame-throwing about), you're being a little naive.

Roberts was picked because he is BORING.  He has a distinguished inside-the-beltway career during which he was able to avoid having any opinions that are not his client's (as opposed to some of the law professors on the list) and a grand total of 20 months of judicial history.  He has the title of a Federal Appellate Judge but has never had a truly difficult moral issue before him (from what briefs I've seen so far).

Bush picked the most boring, uninteresting, defendable conservative on his list.  Other than his membership in certain legal organizations, his religious affiliation, and his wife's position in an anti-abortion group, there is almost nothing that either side can use to pin down his specific opinions or general legal philosophy.  As compared to Scalia, who spent several years as a vocally conservative law professor, this man is an enigma.

That doesn't mean that he won't be a "good" SC judge, or won't be as conservative as most of the people here are hoping, but please don't tell me that he was chosen for his "ideals".

Getting a job because you have never written down a personal opinion is a different kind of affirmative action than gender-based, but it's still a type of affirmative action.

Or waste my time. It's addressed elsewhere. Have a nice day.

OK, here we go:

Thomas: In 1990 he was appointed a judge on the Court of Appeals for the District of Columbia Circuit. In July, 1991, President George H. W. Bush nominated Thomas to the Supreme Court, to replace Thurgood Marshall. Oops! 1 year.

Stevens: From November 2, 1970 to 1975, he served as a Judge of the United States Court of Appeals for the Seventh Circuit, nominated by President Nixon. President Ford then nominated him as an Associate Justice of the Supreme Court, and he took his seat December 19, 1975. Looks like around 5 years...

Oh well, can't win them all! :-)

Just for kicks:

Scalia: He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. Then, in 1986 President Reagan nominated him as an Associate Justice of the Supreme Court of the United States. Looks like 4 years.

Ginsburg: She was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit by President Carter in 1980. President Clinton nominated her as an Associate Justice of the Supreme Court, the U.S. Senate confirmed her by a 97 to 3 vote and she took her seat August 10, 1993. 13 years!

Souter: In 1978, he was named an Associate Justice of the Superior Court of New Hampshire, and was appointed to the New Hampshire Supreme Court as an Associate Justice in 1983. He became a Judge of the United States Court of Appeals for the First Circuit on May 25, 1990. His old friend Warren Rudman, had since been elected a Senator. Rudman was instrumental in both this appointment, and his appointment to the Supreme Court. President George H. W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat October 9, 1990... Uh, math hard... let's see is that 22 years? Wow!

Breyer: From 1980 to 1994, he served as a Judge on the United States Court of Appeals for the First Circuit, and as its Chief Judge from 1990 to 1994. President Bill Clinton nominated him as an Associate Justice of the Supreme Court to fill the vacancy left after the retirement of Harry Blackmun in 1994. 14 years.

Kennedy: He was appointed to the United States Court of Appeals for the Ninth Circuit by President Gerald Ford in 1975. Reagan nominated Kennedy as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988.  I'm not sure on this one, but it looks like 13 years.

O'Connor: In 1975, she was elected judge of the Maricopa County Superior Court and served until 1979, when she was appointed to the Arizona Court of Appeals by Democratic governor Bruce Babbitt. On August 19, 1981, President Reagan, who had pledged during the 1980 presidential campaign to appoint the first woman to the Supreme Court, nominated her as an Associate Justice of the Supreme Court, replacing the retiring Potter Stewart. She was confirmed by the Senate unanimously on September 21 and took her seat September 25. There might be some gaps in there... but it could be 6 years.

Rehnquist: When President Richard Nixon was elected in 1968, Rehnquist returned to work in Washington. He served as Assistant Attorney General of the Office of Legal Counsel, from 1969 to 1971. In this role, he served as the chief lawyer to Attorney General John Mitchell. President Nixon mistakenly referred to him as "Renchburg" in several of the tapes of Oval Office conversations revealed during the Watergate investigations. Nixon nominated Rehnquist and Rehnquist took his seat as an Associate Justice on January 7, 1972. Interesting history, but it looks like 0 years as a judge, previously.

Well I think that averages out to be around 9 years of previous work as a judge. I'd settle down from my 10 years required to around 9.

Disclaimers: no animals were abused to make this report. All information was obtained from one source and may not be accurate. Some handling may occur during shipping.

Fred Barnes Agrees

I bet the bloom will be off the rose for social conservatives in a couple of days.

(1) Yes.

(2) Yes. I believe that Rehnquist sided with Harris on which state statute governed the recount. That should have been left to the state courts.

(3) Yes. II B. First para.

(4) Yes.

Unless you think "per curiam" means "by Scalia," then I think we can dispense with this conversation.

I see no mention of state courts in the relevant portion of the Constitution. Kindly so direct me.

Wasn't Per Curiam appointed by Bush I?

II B of Rehnquists opinion relies heavily on the "...clearly expressed intent of the legislature."

Scalia did not author his own opinion, instead joining Rehnquists opinion.

Worst pick of his Administration.

Before I go any farther, I broke a personal rule and double checked, which is to say, did legal research for a blog, and there is no II. B. in the concurring opinion, at least on Westlaw or on the Cornell page, which is usually very good. I do not have a hard copy of the U.S. Reporter, but I suspect that the only II. B. that might be relevant is in the per curiam opinion.

That said:

So? He relies on that because he reads the relevant clause as granting that power to the state legislature, not the state court. I'm curious what that has to do with the larger topic.

Yes, I know. Which rather makes my point.

II B, II, whatever.

Normally I have no problems with Rehnquist, but in his opinion he picked seemingly at random between mutually contradictory election statutes. There was no clear intent. That choice should have been made by the state courts.

I was shocked to see Scalia joining such an opinion, since it effectively took jurisdiction for deciding between various contradictory statutes away from the state courts.

Which is a reasonable reading of the relevant clause. I rather think that the words wouldn't have meant, in the 1780s, that the State courts could second guess the State legislatures. I suspect that the legislatures would have been amazed to find out that their election laws could be re-written by their courts.

That goes to the larger point.

II B, by the way, gives an accurate reading of the law.

vs. intentionalism when this thread started, but now feel I have a vague sense of what's involved. My thanks to kleptocrat.

Thomas: your ass has been roundly kicked.

And I add that if you think that, your first statement is incorrect. Or maybe you can explain how the concurrence in Bush v. Gore is not consistent with Scalia's philosophy?

Probably not.

He's had his fifteen minutes of fame here.

But I have a fairly solid rule: I don't boot those with whom I'm in a spitting match. Sure, he's ignorant, insulting, and has already been banned once. But I was just insulted; it's not my place to do it right now. He attacks someone else, we can wave him bye-bye.

and gracious than I.  Given his short comment history here, I'll wager he won't last much longer.  Did Leon re-instate him or just not follow through with the ban?

I suspect that particular action will soon be undone.

I'm not tolerant. I'm patient.

Again, I apologize; this doesn't count as profanity where I come from, nor is it an insult. How about, "Thomas, you have been soundly trounced?"

I recognize the post adds little substance to the debate. But from where I stand, kleptocrat is right that the reference to framers' intent in Bush v. Gore runs counter to Scalia's earlier commitment to ignoring lawmakers' intent (however that may be discovered) and focusing on the actual text of the law. Your attempt to evade this by constructing the emphasis on the text as a way to divine the intent of the full congress, rather than that subset who drafted the bill, seems like sophistry.

Ginsburg had 13 years and we let her through? Ah well... those were the days of civility.

I see that history is on your side and present on mine... and i guess future nominations would go this way too... No President would want to nominate someone who cant spend at least 175 years on the Supreme Court.

I can see the announcements already... In 2080, a 3 year old infant (genetically engineered to live till 475 years) is nominated to the CJ post.

This post went wayyy off topic... Back to the point... I still dont think that experience is an important enough yard stick to look at this nomination. I would care for it only if this was a Souter like nomination... in which case it would be good to know his opinions beforehand. Roberts is a surefire conservative... so we shouldnt have that problem.

Without the deal, those Democrats in the deal would have a lot less cover to do the right thing and allow a vote.  Instead of being defectors, they get to be "mavericks."

That's the benefit.

For listening in on a conversation.

There are three important points here.

First, he resurrected Scalia's stautory interpretation tools, which Scalia notes differ from his constitutional toolset, and tries to use this as emblematic of Scalia's constitutional toolset.

Second, he's butting up against a straw man here, because Scalia has never adhered to the philosophy he originally impugned to Scalia, which he conceded up thread; indeed, Scalia's reading does not care what the drafters thought, but what the words meant in their proper usage and context at the time. (In other words, I won that point.)

Third, and this is the biggy, this is all irrelevant, because Scalia did not write any of the opinions in Bush v. Gore, so really, from the start, he was attacking Scalia for something the per curiam writer (widely believed to be O'Connor or Kennedy) or Renky wrote. Again, conceded up thread.

So, remind me how I got my butt whooped?

I'm not convinced the President wants to appoint a Brown to the SC.  He likes Gonzalez we know.  And there is not much to be gained in nominating a Garza over a Roberts besides identity politics.  I think Roberts is about as conservative/constructionist as we could have gotten to replace a non-Rehnquist retirement.

Having a SC nominee be approved through The Deal will reinforce it, to our favor.  The stronger it is, the more we can get up-or-down votes on candidates just as before the Dems got filibuster-happy.  The only way it hurts us is that it weakens the obstructionist label in the 2006 elections for the moderate Dems.

Finally, I think you misread my analysis.  My argument was that if 3 moderate Dems and the Republicans on the Gang of 14 (DeWine, Graham, Warner, and McCain specifically) thought a candidate was "extraordinary" then the person could be stopped.  If that is true, then even an up-or-down yes vote is unlikely.  So there is no situation right now where a filibuster would stop a nominee who has majority support.

Roberts has majority support, thus, there will be no filibuster.

I submit my analysis to be fact-checked.  If any nominee not mentioned in the deal has majority support and is filibustered before the 2006 election, then my analysis is flawed.

Scalia is an originalist, there's no such thing as an "intentionalist". An originalist looks at the text of the Constitution and uses the words in terms of their meaning at the time they were written.

For example, "regulated" had a different meaning back when the Constitution was written than it does today.

And if that does not clear things up, the Originalist falls back on documents that more fully explain what the clauses of the Constitution means i.e. the Federalist Papers (which were written by the men who wrote the Constitution in campaigning for its ratification by the 13 states, i.e. James Madison, Alexander Hamilton and John Jay (first CJSCOTUS)).

The notes of the people who wrote the other Amendments (11+) are also examined by the Originalist to determine the full meaning of the clauses if the text is not clear.

Now, to get back to the argument as to whether or not Scalia's ruling on the Bush VS Gore case goes contrary to Originalism, let's examine the relevant clause of the Constitution at issue here:

Article. II.

Section. 1.

Clause 2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ...

I personally cannot see anything in this clause that would lead me to believe that this allows State courts to extend deadlines, change counting standards or otherwise alter laws with regard to Presidential elections as expressly and explicitly set by the state legislatures.

Delaying tactics a la Bolton. Bank on it.

nothing that deals with this question one way or the other so the Supreme Court should simply have butted out, and allowed Florida to resolve the matter on its own. The Florida state legislature might ultimately have ended up picking the slate of electors or, at worst, the election would have been thrown to the US House to resolve. The results of course would have been the same, but with greater constitutional legitimacy.

And would rather not, given that folks' memories of the case seem more important than the words written and no, that's not about you, Aleks. But in the interest of clarity, I rather think that the argument espoused in the concurrence is definitive, and I don't think that just because I saw it the first time the Florida Supreme Court got itchy. The role of courts at the time of adoption was so different than it is now, the clear meaning of the words would never have countenanced the reliance on judicial interpretation and revision of clear legislative direction.

The reason that the Deal is better is that the Senate leadership must now make a case that a nominee is "Extraordinary" to force these guys into supporting a filibuster.

Without it, they have to prove theirselves as Mavericks each and every time a semi-conservative nominee comes up for a vote.

The other thing this nomination will do is open up a spot on the DC Circuit court.  The talk is that the GOP was not going to move on Kavanaugh because a) The Dems dont want to anyways and b) the GOP feels like we dont have to have that circuit full.  With Roberts moving on, they will likely move on BK and Bush can put up another nominee who will sit and wait until one of the other (hopefully liberal) judges retires.  Estrada anyone ?

My Dad's great theory is that by putting Roberts here and making the left scream for a woman, it opens up Bush to put a woman in at the chief's slot.

JRB, Priscilla Owen, Edith Jones .  Bush becomes first president to put a woman on the court and because she's a woman, it's something else to use against the Dems to get her confirmed, even if she is very conservative.

nomination until confirmation.

Depends a lot on how quickly the judiciary committee schedules hearings and sends them to the floor.

August reccess may throw a ringer in though.

I thought I saw somewhere that it took 58 days for either Ginsberg or Breyer.

conservative than I am, or he is making assumptions based on how he feels.

I am perfectly fine with Roberts-I do agree that he is a safe pick, and not as divisive as a Luttig, Brown or Jones would be, but I think he is a good pick, especially a good pick to replace O'Conner given that her conservative credentials are shakey in several areas.

Roberts certainly has the qualifications.

I also will add my feelings to the woman thing-I am a woman and frankly I am very glad that Bush didn't forward the notion that O'Conner's seat forever had to belong to a woman.  The fact that in the end Bush chose a well regarded, well respected and well qualified justice was a good move on his part.

I can't hear the name Roberts without thinking of a certain movie.

Agreed, Roberts deserves the courtesy of not being slimed and vilified. He should get his hearing and a fair process of evaluation. But neither should the President expect a rubber stamp. Thats to both conservatives' and liberas' interest - one side doesn't want a Souter, the other doesn't want a Scalia.

she sounded way too much like O'Conner and a maintenence of the status quo.

I like Jones.

I like Roberts.

Luttig was my favorite and still is and I hope he gets the nod.

I do not think PC is what should motivate who is chosen for the court-Roberts is a good pick-he may not be a Luttig, but he is a very good pick, and probably in the end one of the best on the list.  He deserves his spot.

It's our turn again.

a judge to get nominated don't you.  You don't even technically have to be a lawyer-although given the job it is probably a good idea.

But there is no constitutional requirement that a justice be a judge before they are chosen.

Other than that I tend to agree that calling somebody who has been on the bench less than two years "long serving" is a misnomer, but he certainly has had a distinguished career.

The Constitution explicitly gives this power exclusively to the State Legislature. The SCOFla tried to butt in where it had no right to do so, thereby violating the United States Constitution.

And so the SCOTUS essentially told the SCOFla to butt out. That's entirely appropriate, as far as I'm concerned.  

Considering the SCOFla's disrespect of the State Legislature's prerogative in the first place, the SCOFla could have very easily attempted to strike down the directly selected slate anyway.

Specter should be booted out.

if, that is, our members of the Gang actually hold up their end in a filibuster fight.

Unless there are no more filibusters or our guys blow them up, the criticism of the deal has not been proven false.

And Dems are free to vote no.  I would hope that only 3 (Ginsberg) or 0 (Breyer) actually vote no, but that may be a bit opitmistic.  

see the evil Rove and Bush seeing clearly.

Get the left all het up because Roberts is not a woman, and O'Conner's seat is forever dedicated to a woman, then give them the woman they demanded, and it is going to be difficult for them to trash her after demanding her.

But I am willing to bet he clears with about 80 or so votes in his favor.

Kennedy, Biden, Schumer and a few others (Kerry maybe) will vote no, but the red state dems I bet all vote yes.

I think that HRC will vote for him because she is :

a) going to want to look moderate

b) she is hoping to be prez in a few years and doesn't want to make SCOTUS appointments into a huge ordeal.

You got 0wned...  the conservatives on the court  argued everything in favor of states rights and federalism and keep the federal govt out of the states for decades and now that it affects an election with a conservative candidate they flip it around?  Hey, nobody's perfect and I might have done the same thing in their place but it's inconsistent.

I like the Roberts nomination.

LOL - brilliant!

A good move by the President.  He nominates a generally Conservative nominee but one that is a bit of a wild card.  With no clear paper trail it is unlikely they will find much to really go at him with.  

However there is a risk with Mr. Roberts.  In his 2004 confirmation hearing he said "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent"

Whether that means that he would or would not overturn Roe or not remains to be seen.  

With this selection he enables a more Conservative nomination for the CJ position.  It stil won't be Brown or Owen but Luttig is a possibility.

Adam C's point makes sense if we can be confident that the current nominee is as conservative as any other potential choice.  I confess I have not had time to research this, so I am operating on trust that President Bush has done his homework.

There are ways other than a long, public paper trail to assess judicial philosophy.  In particular, the President has an opportunity to speak directly with candidates prior to making a nomination.

So it seems we have ended up with a nominee who is conservative in philosophy, solid in character and credentials, and young.  Would we prefer a candidate who is equal in conservatism but more "in your face?"  The answer to that depends upon whether you think an "in your face" nomination results in a net gain or a net loss of political capital.  Unless I am missing something, this is what the final choice came down to.

For the record, when I say "conservative," I mean: strict construction, original meaning, respect for settled law, and preservation of states' rights.

I wonder if there is an Anita Hill out there, just waiting to be brought out at the last minute by the desperate Dems to to try to sabotage the nomination.

Don't get involved in a debate you don't understand. Thanks.

although more in line with Renquist (whose philosophy isn't quite a Scalia or Thomas one, but in the ballpark).  Renquist was on the right side in the most recent cases that emphasized the importance of originalism (Kelo, the California Pot case (raich something like that) and the ten commandment cases).

I think those who know him and compare him to Renquist are probably correct.

He is a bonafide and he also sounds like he is very witty, and friendly-something that may be important for the SCOTUS dynamics.

He isn't a Luttig (who is probably a little more testy and in your face-and is far more on the record regarding opinion on various constitutional issues), but he is I think a good nomination and will be good for the court.  

I want more Scalia's and Thomas' but I will take more Renquists without complaint.

I am also pretty convinced his answer on Roe was politic more than personal belief.  An appellate court justice has to go by the precedent set by the SCOTUS, and I think he was referencing that.

If he isn't in favor of an outright overturn of Roe, I think he will certainly be on the side of restrictions, and I think one thing that is coming (and we will see it probably with the partial birth abortion bans that are coming-although I suspect the federal one won't stand, but the state ones will) is a better clarification of the health exception and when it applies (Thomas and Scalia seem to be of the opinion that the broad definition of health discussed in Doe isn't as broad or as settled as it appears to be in case law).  I think we may end up with the states at the very least having the ability to strongly limit late term abortions without having to have or use the broadly defined "health" when doing so.

I am betting that somewhere between 10 and 20 dems vote "no" everyone else votes yes.

I think they aren't going to waste their bullets on Roberts.

They are going to hoard them for the next nominee.

I am not a lawyer, so I am basing this on my understanding of what some lawyers have told me.  Literally speaking, the Supreme Court cannot overturn any of its own rulings.  The rulings of any given court can only be overturned by a higher court.  Thus the Supreme Court can overturn decisions by the lower courts.  But there is no court higher than the Supreme Court.  Thus the Supreme Court must consider all its own prior decisions as legal precedent.

So I interpret the 2004 comment to be nothing more than the statement of a basic constitutional principle.  Nothing to worry about in that.

In the interpreation and application of precedent, the court has freedom of interpretation.  If I am correct, the Supreme Court can decide that a precedent was interpreted or applied incorrectly in a prior decision of that court.  This is what a number of conservatives have argued with respect to Roe v. Wade.

If Specter has a brain, he will not let this one head down that road, but sometimes I have my doubts.

its own rulings.

Ever heard of Plessy?

The Supreme court does so very rarely though, and often they are more likely to roll back expansions of a decision than outright overturn it, but it isn't impossible-and this is often where dissents and concurring opinions come in.

Rehnquist will likely be next.  But will Bush appoint a chief from outside or will he elevate a sitting judge to chief?

I wouldn't count on Stevens stepping down, in 2000 he was eighty and made it through four years of W's first term.  He's likely to make it past the next four.

Just hope for a GOP president in 08 who will nominate those who follow judicial restraint.  With a lot of pro-choice GOP nominees rearing the head in the 2008 primary, and McCain....things don't look that hot.

Unless George Allen (R-Va), Mike Huckabee (R Gov. of Ak) or Chuck Hagel (McCain-lite) have a say in it.

I am a GOPer from PA, and honestly I would have much rather seen a 54-46 Republican Senate, where Specter lost his 2004 reelection and John Kyl became judiciary chair.

But that would have meant getting Joe Hoeffel as a Senator...bleh.

Specter owes his reelection to Bush and Santorum, and hopefully his payback will be supporting our judges.

I don't necessarily believe that he is against overturning Roe or not.  Everything is about context.

For instance his past opposition to Roe was as a lawyer for the government under Reagan.  It was his job to take that position and his personal views and general sense of jurisprudence had no bearing on his position.

From the little I have read of the guy he seems to be a person who believes in careful and reasoned deliberations.  This appeals to me.  I hope that means he will be a justice that puts political philosophy in a box and doesn't use it in rendering a decision.  

If I were in charge of questioning him I personally would be more interested in hearing his views on the Commerce and General Welfare clauses than on Roe.  I don't want a justice who wants us to go back to 1936 but I have no problem with a justice that wants to limit the expansion of these  clauses.

Stevens.  She has had health problems as well.

I am not convinced Bush gets more than two, I think three is the most he gets barring a surprise retirement or death.