Sunday, November 07, 2004

The Next Supreme Court Nominee

Some interesting thoughts on the President's next Supreme Court nominee. Tom Goldstein doesn't think Michael McConnell will be selected because of his outspoken opposition to Roe, despite the fact that this Senate confirmed him to the 10th Circuit without a fight. Goldstein recommends Judge John Roberts of the D.C. Circuit.

More likely, I think, is Judge John Roberts of the D.C. Circuit, who was only confirmed to that court last year. The model for confirmation here is likely to be that of David Souter and Clarence Thomas, both of whom were nominated to the Supreme Court after brief tenures on federal appeals courts.

Judge Roberts is 49 years old. Previously, he was the nation's leading Supreme Court advocate as an attorney at Hogan & Hartson in Washington, D.C. (Although he was known as a conservative, he never took on the partisan profile of Ted Olson.) He also has held several government positions: principal deputy solicitor general, associate counsel to President Reagan, and special assistant to Attorney General William French Smith. (Judge Roberts was nominated for the same position in 1992, but the nomination lapsed.) After law school, he served as a clerk to Chief Justice Rehnquist, a fact that would give the appointment a certain symmetry.

Given his prior government positions and high profile as a Supreme Court advocate, John Roberts is a very well known commodity to the Washington conservative legal establishment that will be so important to advising the President on his nomination. He also notably can be said to have argued for the overruling of Roe v. Wade, a fact that would cause religious conservatives to embrace him: he signed the United States's brief in Rust v. Sullivan, which included a pointed (if gratuitous) statement that the Administration believed that "Roe was wrongly decided and should be overruled." But he took that position as a government lawyer while in the Solicitor General's office, where he was advocating the position of the Administration, a fact that makes it substantially more difficult to block him on that ground. I am not aware of any public statements by Judge Roberts regarding his personal view on whether Roe should be overruled.

Conservatives also would appreciate that Judge Roberts was on the brief for the United States in Lee v. Weisman, a high profile case in which the government advocated narrowing the wall separating church and state.

If Judge Roberts' confirmation to the D.C. Circuit is informative, it would be difficult to muster a solid opposition to his nomination. The Senate Judiciary Committee approved his nomination 16-3. The full Senate approved it without a roll call vote.

Jim Lindren guesses that the pick slot will go to White House Counsel Alberto Gonzalez.

Personally, my uninformed guess is that Bush will nominate Alberto Gonzalez for the next vacancy on the Supreme Court, though this is far from certain. White House Counsel Gonzalez has Bush's trust, has prior judicial experience, and is reputed to be competent. Gonzalez would be as moderate an appointment as the Democrats are likely to see. Not only is Gonzalez probably in favor of affirmative action, but he decided against parental notification for abortion in Texas. If there are two slots to fill at the same time, I would expect an attempt at a deal--Gonzalez plus another much more conservative justice. Depending on whom they replace, that would leave the abortion split close to the same.

This would also seem to be consistent with Bush's practice of appointing minorities to more of the truly important positions of power than any prior President. Minorities are part of Bush's inner circle in a way that they never were for Clinton, Kerry, or Dean.

Michael Rappaport thinks McConnell is the best choice:

McConnell was a first rate constitutional scholar, who had a reputation for integrity and excellent scholarship. His nomination to the Tenth Circuit was supported by a bipartisan group of law professors. McConnell would also make sense since he would be acceptable to the evangelicals who seemed to be so important to President Bush's reelection as well as to other Americans. McConnell is a religious man who devoted much of his scholarly career to pursuing a view of constitutional religious liberties that is both respectful of evangelical concerns and well grounded in history. Finally, McConnell would be likely to be confirmed. Democrats could do far worse, from their perspective, than a nominee who has integrity, is collegial, and respects those who disagree with him. In fact, McConnell's personality seems to be a perfect fit with the job of Chief Justice.

Professor Bainbridge agrees that McConnell is a great choice, but agrees with Goldstein on his confirmability.

I agree with much of what Mike says, except possibly about McConnell's confirmability. McConnell's only been on the bench for a couple of years, which will give people a reason to argue that he lacks experience. When he went up for the 10th Circuit, he had the strong support of then-Judiciary chair Orrin Hatch, who will no longer be in as strong a position to help out. Finally, I'm not convinced that the liberal law profs who backed McConnell for the appeals court would be willing to do so for the Supreme Court. But let's hope I'm wrong; we certainly could do a lot worse.