Pindar's SCOTUS picks

[Pindar]

Some of my friends who work in Washington have been telling me Rehnquist is expected to announce his stepping down after the July Fourth Holiday. This means two of a possible Bush Supreme Court Three-fer will be in the works. Below is a simple list of who I think the strongest contenders for the seats are. It includes a brief on each.

Top Contenders:


J. Michael Luttig


J. Michael Luttig, 51, has been a favorite in conservative legal circles for decades, going back to his clerkship for then-Judge Antonin Scalia on the U.S. Court of Appeals for the D.C. Circuit in 1982-83.


A graduate of Washington and Lee University and the University of Virginia law school, Luttig also clerked for Chief Justice Warren E. Burger in 1983-84, practiced law in the private sector from 1985-1989, and then served in a variety of Justice Department positions during the first Bush administration, where his duties included helping current Justices Clarence Thomas and David H. Souter win Senate confirmation.

President George H.W. Bush appointed him to the Richmond-based U.S. Court of Appeals for the Fourth Circuit in 1991, when Luttig was just 37 years old. Ever since, he has been spoken of as a likely choice for the Supreme Court should a Republican president have a chance to name him. His many supporters on the right, including ex-law clerks sprinkled throughout the Bush administration, think now is Luttig's time.

This has sometimes led him to clash with other members of the 4th Circuit, including fellow conservative J. Harvie Wilkinson, also thought of as a Supreme Court contender. In 2000, he dissented from a ruling by Wilkinson that upheld a Fish and Wildlife Service regulation limiting the killing of endangered wolves on private land. He also disagreed with Wilkinson in 2003, when he wrote a dissenting opinion that supported the Bush administration's position that it could designate and detain "enemy combatants" with little judicial scrutiny.

In 1998, he upheld Virginia's ban on the procedure known as a partial birth abortion -- but agreed to let it be struck down after the Supreme Court struck down a similar Nebraska law in 2000.

-- Charles Lane



John G. Roberts



John G. Roberts, 50, has long been considered one of the Republicans' heavyweights amid the largely Democratic Washington legal establishment. Roberts was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2003 by President George W. Bush. (He was also nominated by the first President Bush, but never received a Senate vote). Previously, he practiced law at D.C.'s Hogan & Hartson from 1986-1989 and 1993-2003. Between 1989 and 1993, he was the Principal Deputy Solicitor General in the first Bush administration, helping formulate the administration's position in Supreme Court cases. During the Reagan administration, he served as an aide to Attorney General William French Smith from 1981-1982 and as a an aide to White House Counsel Fred Fielding from 1982-1986.


With impeccable credentials -- Roberts attended Harvard College and Harvard Law School, clerked for Justice William H. Rehnquist on the Supreme Court and has argued frequently before the court -- the question marks about Roberts have always been ideological. While his Republican party loyalties are undoubted, earning him the opposition of liberal advocacy groups, he is not a "movement conservative," and some on the party's right-wing doubt his commitment to their cause. His paper record is thin: as Deputy Solicitor General in 1990, he argued in favor of a government regulation that banned abortion-related counseling by federally-funded family planning programs. A line in his brief noted the Bush administration's belief that Roe v. Wade should be overruled.

As a judge on the D.C. Circuit, Roberts voted with two colleagues to uphold the arrest and detention of a twelve-year old girl for eating french fries on the Metro train, though his opinion noted that "[n]o one is very happy about the events that led to this litigation." In another case, Roberts wrote a dissenting opinion that suggested Congress might lack the power under the Constitution's Commerce Clause to regulate the treatment of a certain species of wildlife.

-- Charles Lane


Smaller chance



Emilio M. Garza



Emilio M. Garza, 57, is a judge for U.S. Court of Appeals for the 5th Circuit and has been on the short list for a Supreme Court nomination before.

Justice Department officials interviewed Garza in 1991, when he was among a handful of candidates being considered by President George H. W. Bush to succeed Justice Thurgood Marshall. But Garza then had only three years of experience on the federal bench and his views on many issues were unknown. Bush nominated Clarence Thomas instead.


Garza, who will turn 58 in August, would make history as the first Hispanic ever nominated to the high court.

The former Marine captain earned bachelor's and master's degrees from the University of Notre Dame and graduated from the University of Texas School of Law. He practiced law in his native San Antonio for 11 years and served as a state district judge for a year before President Reagan nominated him to the U.S. District Court in 1988. Three years later Bush elevated him to the 5th Circuit.

Since then Garza has developed a reliably conservative judicial record that includes criticism of the Roe V. Wade abortion decision of 1973. In 1997, Garza sided with the majority in upholding a lower court decision that struck down parts of a Louisiana law requiring parents to be notified when a minor child seeks an abortion. In his concurring opinion, however, he expressed doubts about whether Roe v. Wade was well-grounded in the Constitution.

"In the absence of governing constitutional text, I believe that ontological issues such as abortion are more properly decided in the political and legislative arenas," Garza wrote. ". . . . It is unclear to me that the [Supreme] Court itself still believes that abortion is a 'fundamental right' under the Fourteenth Amendment. . . ."

-Christopher Lee



Michael W. McConnell


Michael W. McConnell, 50, has been a judge on the U.S. Court of Appeals for the 10th Circuit, based in Denver, since his appointment by President Bush in 2002.


Before then, he was mostly a legal academic, having served as a law professor at the University of Chicago from 1985-1996 and subsequently at the University of Utah.

McConnell's good standing with the legal professoriate helped him immeasurably during the confirmation process; more than 300 of his fellow professors, including many liberals, endorsed him for the bench.

An eclectic thinker who served both as a law clerk for the liberal icon Justice William Brennan and as an official in the Reagan administration, McConnell has expressed his opinions on a wide range of subjects, including a Wall Street Journal op-ed in December 2000 in which he expressed doubts about the legal reasoning of the Supreme Court's Bush v. Gore decision.

But his outspoken disagreement with Roe v. Wade has earned him the condemnation of liberal advocacy groups (though at his confirmation hearing he called it "settled law.") Conservatives like his writings favoring government "neutrality" toward religion.

As a judge, McConnell has upheld Congress's power to criminalize the possession of homemade child pornography; in a case soon to be reviewed by the court, he voted to prohibit enforcement of federal anti-drug laws against people who consume hallucinogenic tea as part of a religious ritual.

-- Charles Lane




Larry D. Thompson


Larry D. Thompson, 59, is a senior vice president and general counsel for PepsiCo.

He was the deputy Attorney General--the No. 2 person at the Justice Department--for much of President Bush's first term.


During his tenure at Justice, he had daily involvement in the war on terror and headed the corporate crime task force that pursued prosecutions against Enron Corp., Worldcom Inc. and HealthSouth Corp.

He was one of the highest-ranking African Americans in the Bush administration and if appointed to the court, would be the third African American justice.

Thompson is a longtime acquaintance of Justice Thomas and was a member of the legal team that assisted Thomas during his confirmation hearings in 1991.

Around the same time, Thompson angered some civil rights groups when he wrote that certain black leaders "stressed . . . black people as victims" and ignored problems like their "lack of respect for the law, kids having children too soon and fathers who were not taking their responsibility seriously."

He is a graduate of the University of Michigan Law School, served as a U.S. Attorney in Georgia and practiced at the Atlanta firm of King & Spalding.

--Darryl Fears




Wild Cards


Janice Rogers Brown


Janice Rogers Brown, 56, was confirmed last month to the U.S. Court of Appeals for the D.C. Circuit. For nine years before that, she was a California Supreme Court justice.

Brown was born in Greenville, Ala., and educated at California State University at Sacramento and the University of California at Los Angeles School of Law. She is a self-described conservative who as a young single mother once called herself so leftist as to be almost Maoist. She was legal affairs secretary for California Gov. Pete Wilson (R) before joining the California Court of Appeals in 1994.

As a judge, she has written sharp opinions that opposed affirmative action, that supported a state law requiring girls younger than 18 to notify their parents before getting an abortion, and that advocated using stun guns in a courtroom to control an unruly defendant. She has strongly supported property rights and describes herself as someone who looks to the intent of the framers of the Constitution when making decisions. Some have criticized her for writing dissents and opinions that personally attack other justices.

Brown has attracted as much attention for her speeches as for her legal decisions. In recent years, she has described New Deal legal precedents as "the triumph of our socialist revolution," and two months ago, she told a Connecticut group of Catholic legal professionals that "there seems to have been no time since the Civil War that this country was so bitterly divided." She also said that "these are perilous times for people of faith" and that there's a social cost to pay "if you are a person of faith who stands up for what you believe in and say those things out loud."

Brown grew up in the segregated South, where her family refused to enter restaurants or theaters with separate entrances for black customers. Before moving to Washington, she lived in a gated community in the foothills of the Sierra Nevadas.

-- Marc Kaufman



Alberto R. Gonzales


Attorney General Alberto R. Gonzales, 49, has less time on the bench than the other likely Supreme Court candidates but has one crucial advantage: the close friendship of President Bush.


Gonzales grew up as the son of impoverished Mexican immigrants and went on to graduate from Harvard University law school. Bush, then the governor of Texas, hired him as his general counsel and later appointed him to the Texas Supreme Court. Bush brought Gonzales to Washington as his White House counsel in 2001.

The Senate narrowly approved Gonzales as attorney general in February after he faced sharp criticism from Democrats over the role he played in approving controversial detention and antiterrorism policies.

Yet legal experts say that the strongest opposition to Gonzales as a Supreme Court candidate would likely come from the right, due primarily to positions he has taken on issues like abortion and affirmative action.

While on the bench in Texas, Gonzales sided with a majority in a 2000 case allowing an unidentified 17-year-old girl to obtain an abortion without notifying her parents, finding that she qualified for an exception to that state's parental notification law. In a concurring opinion, Gonzales said that to side with dissenters in the case would amount to "an unconscionable act of judicial activism."

Gonzales also testified at his attorney general confirmation hearing earlier this year that he recognized the Roe v. Wade decision legalizing abortion as "the law of the land."

Advisors close to the White House have said that Bush likes the idea that Gonzales would be the first Hispanic justice. (Benjamin Nathan Cardozo, a justice in the 1930s, was of Portuguese and Jewish descent.)

-- Dan Eggen


The night of the long knives is come. Citizens will rise up against the barbarian defamers of the Republic and drive them from their secure posts and high places. The citizens voice will be heard again and the law will be a reflection of that voice.



Potestas Democraticorum delenda est!

(The power of the Democratic Party must be destroyed)