Let’s Put This Out In The Open
As things begin to heat up in Washington over the fight that’s coming on O’Connor’s replacement, we here have been asked to give our "short-list" of nominees. As our regular readers know, both Marcie and I are keeping a close watch on the proceedings. Names are always popping up in our research, which is why our list, which was originally at about forty names was shrunk to about twenty-five, grew back up to about thirty, then shrank again. Let’s face it, this isn’t an easy task; this is much like keeping up with the Jones’s when the Jones’s are schizophrenic.
Before I continue, both Marcie and I agree that a disclaimer of sorts is needed. We are looking for originalists only. We’re not looking at "consensus" nominees. Such a nominee could, and probably would be, a disaster. A nominee such as a Gonzales would prove to be more of a Souter or an O’Connor; neither of which could interpret the Constitution properly if Alexander Hamilton was explaining it to them. Indeed, several of the justices sitting on the current court have disregarded the primary reference tool as to what the Framers meant when they disregard The Federalist Papers. So, do not look for a moderate, or consensus, jurist on this list. There won’t be any.
Our first choice is Judge J. Michael Luttig from the 4th Circuit Court. Judge Luttig is, by far, one of the most conservative originalists sitting on the federal bench. Judge Luttig was appointed to the Fourth Circuit in 1991 by President George H.W. Bush. Before his appointment, Judge Luttig served in a number of positions in the Department of Justice, finishing as the Assistant Attorney General for the Office of Legal Counsel. Before joining the Bush administration, he was an associate at Davis Polk from 1985-1989. Judge Luttig graduated from Washington and Lee University and the University of Virginia School of Law. He clerked for then-Judge Scalia on the DC Circuit and then for Chief Justice Warren Burger. Judge Luttig had also worked for Chief Justice Burger before entering law school.
Our second choice is Judge John Roberts from the DC Circuit Court. Judge Roberts was involved in the recent Hamdan decision this past week in which the DC Court ruled that detainees are not entitled to our legal system, and would face the tribunals, which are entirely constitutional, that the military is preparing. Judge Roberts was appointed to 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). Before his appointment, he practiced at Hogan & Hartson from 1986-1989 and 1993-2003. During the interlude, he was the Principal Deputy Solicitor General in the first Bush administration. He also served in the Reagan administration as a Special Assistant to the Attorney General from 1981-1982 and as Associate Counsel to the President from 1982-1986. Judge Roberts attended Harvard College and Harvard Law School. He then clerked for Judge Henry Friendly on the Second Circuit and for Justice Rehnquist.
Third on our list is Judge Edith Jones. Judge Jones currently serves on the 5th Circuit Court. She was appointed to the court by Pres. Reagan in 1985; a seat which had newly been created. She was confirmed by the Senate in April of 1985, and received her commission the next day. She got her BA from Cornell, and her JD from the University of Texas Law School. From 1974 to 1985, Judge Jones was in private practice. She has been considered for the high court before, but the two seats she was considered for ended up going to Justices Souter and Thomas. She is the former general counsel for the Texas Republican Party. The link below is to an outstanding opinion that Judge Jones penned.
http://www.ca5.uscourts.gov/opinions/pub/03/03-10711-CV0.wpd.pdf
Number four is someone many of us are familiar with. At least, you’re familiar with him if you have paid attention to this internal, bloodless war. It is Miguel Estrada. He serves on no federal bench now, as he withdrew his name from the list of appointees. He was brutally savaged by the Senate judiciary committee, and left in limbo for four years before calling it quits. Mr. Estrada graduated magna cum laude and Phi Beta Kappa with a bachelor’s degree from Columbia College, New York in 1983. He received a juris doctor degree magna cum laude in 1986 from Harvard Law School, where he was an editor of the Harvard Law Review. After law school, Mr. Estrada served as a law clerk to the Honorable Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit and then clerked for the Honorable Anthony M. Kennedy of the U.S. Supreme Court. From 1990 until 1992, Mr. Estrada served as Assistant U.S. Attorney and Deputy Chief of the Appellate Section, U.S. Attorney's Office, Southern District of New York. In 1992, he joined the United States Department of Justice as an Assistant to the Solicitor General. In those capacities, Mr. Estrada represented the government in numerous jury trials and in many appeals before the U.S. Court of Appeals for the Second Circuit. Before joining the U.S. Attorney's Office, Mr. Estrada practiced law in New York with Wachtell, Lipton, Rosen & Katz.
Number five is Judge Emilio Garza, and like Judge Jones, he too hails from the 5th Circuit Court. Judge Garza has an excellent originalist mind, and would be a very welcome addition to the high court. Judge Garza lives in San Antonio, Texas. Prior to joining the Fifth Circuit, he was a federal district court judge for the U.S. District Court for the Western District of Texas (1988-1991) and a state district court judge for the district of Bexar County, Texas (1987-1988). Judge Garza has also been an attorney in private practice with the law firm of Clemens, Spencer, Welmaker & Fink in San Antonio (1976-1987) and a Captain in the United States Marine Corps. Judge Garza served in the Marine Corp from 1970 to 1979, with active duty from 1970 to 1973. Judge Garza was born in 1947. He attended the University of Notre Dame (B.A., 1967; M.A. 1970) and the University of Texas Law School.
Number six is a newbie to our list, but one that I believe could be a serious "dark horse;" a surprise for the other side of the aisle. Mary Ann Glendon is the Learned Hand Professor of Law at Harvard University. She writes and teaches in the fields of human rights, comparative law, constitutional law, and legal theory. She has received honorary doctorates from numerous universities including the Universities of Chicago and Louvain. Professor Glendon taught at Boston College Law School from 1968 to 1986, and has been a visiting professor at the University of Chicago Law School and the Gregorian University in Rome. She received her Bachelor of Arts, Juris Doctor, and master of comparative law degrees from the University of Chicago. During a two-year post-graduate fellowship for the study of European law, Professor Glendon studied at the Université Libre de Bruxelles and was a legal intern with the European Economic Community. From 1963 to 1968, she practiced law with the Chicago firm of Mayer, Brown & Platt, and served as a volunteer civil rights attorney. Her experience, both in life and law, could serve the court greatly. And despite her widely and well-traveled life, she is ground in the true meaning of the law and the Constitution.
Number seven is Judge Samuel Alito, who serves on the 3rd Circuit Court. Prior to his nomination to the Third Circuit by President George H.W. Bush, he served as U.S. Attorney for the District of New Jersey (1987-1990), Deputy Assistant Attorney General (1985-1987), and Assistant to the Solicitor General (1981-1985). Judge Alito was born in 1950 in Trenton NJ. He attended Princeton University and Yale Law School. He clerked for Judge Leonard I. Garth on the Third Circuit. Judge Alito has extensive background within the federal government, and has participated in a number of cases arising before the 3rd Circuit Court, including one, Homar v. Gilbert (1996), which was appealed to the Supreme Court. Another memorable case that was appealed to the USSC was O’Connor’s most famous case upon arrival to the high court, Planned Parenthood v. Casey. In both the cited cases, Judge Alito joined in the dissenting opinions.
Number eight is another new addition, and another dark horse, or so she is right now. Judge Alice Batchelder serves on the 6th Circuit Court. Prior to service on the Circuit Court, Judge Batcheleder served on the U.S. District Court, Northern District of Ohio. She was nominated by Ronald Reagan on February 28, 1985, to a new seat created by 98 Stat. 333; Confirmed by the Senate on April 3, 1985, and received commission on April 4, 1985. Her service on the district court was terminated on January 4, 1992, due to appointment to another judicial position. She was nominated by George H.W. Bush on June 12, 1991, to a seat vacated by Frederick Pierce Lively; Confirmed by the Senate on November 27, 1991, and received commission on December 2, 1991 to the 6th Circuit Court. Her education includes: Ohio Wesleyan University, B.A., 1964, Akron University School of Law, J.D., 1971, University of Virginia School of Law, LL.M., 1988. From 1971 to 1983, Judge Batchelder conducted private practice in Medina, Ohio, and from 1983 to 1985 she was a U.S. Bankruptcy Judge, Northern District of Ohio. She is already being compared, by many people—myself included, to Judge Edith Jones.
Number nine is Judge Edith Brown Clement, who currently sits on the 5th Circuit Court. Prior to her appointment by President George W. Bush, she was a judge on the U.S. District Court, Eastern District of Louisiana (1991-2001) and a lawyer with Jones, Walker, Waechter, Poitevent, Carrere & Denegre in New Orleans (1975-1991). Judge Clement was born in Birmingham Alabama in 1948. She attended the University of Alabama and Tulane Law School. She clerked for Judge Herbert W. Christenberry, a U.S. District Court judge for the Eastern District of Louisiana. Very little is out there about Judge Clement, but from what we have researched, she is a good pick. She is described as thoughtful and careful when dealing with a decision, and she is not apt to follow "emanations from the penumbras" as so many jurists do. (For those unfamiliar with that term, it was made famous in Roe, and to law geeks like me, it literally means to "make it up as you go.") Harvey Koch, an attorney from New Orleans had this to say about Judge Clement: "She's in charge but in a very genteel manner -- an iron fist in a silk glove. She is very deliberate, and she weighs all of the issues."
I know that I stopped with only nine on our list. I am reluctant to reveal the number ten that Marcie and I, jokingly, agree on. As a matter of fact, I won’t. It is just an in-joke between her and I. It is absurd, and stupid, and comes only from long nights up doing tons of research and studying. So, yes, I think we’ll keep number ten under wraps. There’s no need to purposefully tick some people off. But there is our short list, and below are links to a couple places where you can keep up with this whole fight, in addition to our own.
Publius II
http://confirmthem.com/
http://www.sctnomination.com/blog/
http://bench.nationalreview.com/
As things begin to heat up in Washington over the fight that’s coming on O’Connor’s replacement, we here have been asked to give our "short-list" of nominees. As our regular readers know, both Marcie and I are keeping a close watch on the proceedings. Names are always popping up in our research, which is why our list, which was originally at about forty names was shrunk to about twenty-five, grew back up to about thirty, then shrank again. Let’s face it, this isn’t an easy task; this is much like keeping up with the Jones’s when the Jones’s are schizophrenic.
Before I continue, both Marcie and I agree that a disclaimer of sorts is needed. We are looking for originalists only. We’re not looking at "consensus" nominees. Such a nominee could, and probably would be, a disaster. A nominee such as a Gonzales would prove to be more of a Souter or an O’Connor; neither of which could interpret the Constitution properly if Alexander Hamilton was explaining it to them. Indeed, several of the justices sitting on the current court have disregarded the primary reference tool as to what the Framers meant when they disregard The Federalist Papers. So, do not look for a moderate, or consensus, jurist on this list. There won’t be any.
Our first choice is Judge J. Michael Luttig from the 4th Circuit Court. Judge Luttig is, by far, one of the most conservative originalists sitting on the federal bench. Judge Luttig was appointed to the Fourth Circuit in 1991 by President George H.W. Bush. Before his appointment, Judge Luttig served in a number of positions in the Department of Justice, finishing as the Assistant Attorney General for the Office of Legal Counsel. Before joining the Bush administration, he was an associate at Davis Polk from 1985-1989. Judge Luttig graduated from Washington and Lee University and the University of Virginia School of Law. He clerked for then-Judge Scalia on the DC Circuit and then for Chief Justice Warren Burger. Judge Luttig had also worked for Chief Justice Burger before entering law school.
Our second choice is Judge John Roberts from the DC Circuit Court. Judge Roberts was involved in the recent Hamdan decision this past week in which the DC Court ruled that detainees are not entitled to our legal system, and would face the tribunals, which are entirely constitutional, that the military is preparing. Judge Roberts was appointed to 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). Before his appointment, he practiced at Hogan & Hartson from 1986-1989 and 1993-2003. During the interlude, he was the Principal Deputy Solicitor General in the first Bush administration. He also served in the Reagan administration as a Special Assistant to the Attorney General from 1981-1982 and as Associate Counsel to the President from 1982-1986. Judge Roberts attended Harvard College and Harvard Law School. He then clerked for Judge Henry Friendly on the Second Circuit and for Justice Rehnquist.
Third on our list is Judge Edith Jones. Judge Jones currently serves on the 5th Circuit Court. She was appointed to the court by Pres. Reagan in 1985; a seat which had newly been created. She was confirmed by the Senate in April of 1985, and received her commission the next day. She got her BA from Cornell, and her JD from the University of Texas Law School. From 1974 to 1985, Judge Jones was in private practice. She has been considered for the high court before, but the two seats she was considered for ended up going to Justices Souter and Thomas. She is the former general counsel for the Texas Republican Party. The link below is to an outstanding opinion that Judge Jones penned.
http://www.ca5.uscourts.gov/opinions/pub/03/03-10711-CV0.wpd.pdf
Number four is someone many of us are familiar with. At least, you’re familiar with him if you have paid attention to this internal, bloodless war. It is Miguel Estrada. He serves on no federal bench now, as he withdrew his name from the list of appointees. He was brutally savaged by the Senate judiciary committee, and left in limbo for four years before calling it quits. Mr. Estrada graduated magna cum laude and Phi Beta Kappa with a bachelor’s degree from Columbia College, New York in 1983. He received a juris doctor degree magna cum laude in 1986 from Harvard Law School, where he was an editor of the Harvard Law Review. After law school, Mr. Estrada served as a law clerk to the Honorable Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit and then clerked for the Honorable Anthony M. Kennedy of the U.S. Supreme Court. From 1990 until 1992, Mr. Estrada served as Assistant U.S. Attorney and Deputy Chief of the Appellate Section, U.S. Attorney's Office, Southern District of New York. In 1992, he joined the United States Department of Justice as an Assistant to the Solicitor General. In those capacities, Mr. Estrada represented the government in numerous jury trials and in many appeals before the U.S. Court of Appeals for the Second Circuit. Before joining the U.S. Attorney's Office, Mr. Estrada practiced law in New York with Wachtell, Lipton, Rosen & Katz.
Number five is Judge Emilio Garza, and like Judge Jones, he too hails from the 5th Circuit Court. Judge Garza has an excellent originalist mind, and would be a very welcome addition to the high court. Judge Garza lives in San Antonio, Texas. Prior to joining the Fifth Circuit, he was a federal district court judge for the U.S. District Court for the Western District of Texas (1988-1991) and a state district court judge for the district of Bexar County, Texas (1987-1988). Judge Garza has also been an attorney in private practice with the law firm of Clemens, Spencer, Welmaker & Fink in San Antonio (1976-1987) and a Captain in the United States Marine Corps. Judge Garza served in the Marine Corp from 1970 to 1979, with active duty from 1970 to 1973. Judge Garza was born in 1947. He attended the University of Notre Dame (B.A., 1967; M.A. 1970) and the University of Texas Law School.
Number six is a newbie to our list, but one that I believe could be a serious "dark horse;" a surprise for the other side of the aisle. Mary Ann Glendon is the Learned Hand Professor of Law at Harvard University. She writes and teaches in the fields of human rights, comparative law, constitutional law, and legal theory. She has received honorary doctorates from numerous universities including the Universities of Chicago and Louvain. Professor Glendon taught at Boston College Law School from 1968 to 1986, and has been a visiting professor at the University of Chicago Law School and the Gregorian University in Rome. She received her Bachelor of Arts, Juris Doctor, and master of comparative law degrees from the University of Chicago. During a two-year post-graduate fellowship for the study of European law, Professor Glendon studied at the Université Libre de Bruxelles and was a legal intern with the European Economic Community. From 1963 to 1968, she practiced law with the Chicago firm of Mayer, Brown & Platt, and served as a volunteer civil rights attorney. Her experience, both in life and law, could serve the court greatly. And despite her widely and well-traveled life, she is ground in the true meaning of the law and the Constitution.
Number seven is Judge Samuel Alito, who serves on the 3rd Circuit Court. Prior to his nomination to the Third Circuit by President George H.W. Bush, he served as U.S. Attorney for the District of New Jersey (1987-1990), Deputy Assistant Attorney General (1985-1987), and Assistant to the Solicitor General (1981-1985). Judge Alito was born in 1950 in Trenton NJ. He attended Princeton University and Yale Law School. He clerked for Judge Leonard I. Garth on the Third Circuit. Judge Alito has extensive background within the federal government, and has participated in a number of cases arising before the 3rd Circuit Court, including one, Homar v. Gilbert (1996), which was appealed to the Supreme Court. Another memorable case that was appealed to the USSC was O’Connor’s most famous case upon arrival to the high court, Planned Parenthood v. Casey. In both the cited cases, Judge Alito joined in the dissenting opinions.
Number eight is another new addition, and another dark horse, or so she is right now. Judge Alice Batchelder serves on the 6th Circuit Court. Prior to service on the Circuit Court, Judge Batcheleder served on the U.S. District Court, Northern District of Ohio. She was nominated by Ronald Reagan on February 28, 1985, to a new seat created by 98 Stat. 333; Confirmed by the Senate on April 3, 1985, and received commission on April 4, 1985. Her service on the district court was terminated on January 4, 1992, due to appointment to another judicial position. She was nominated by George H.W. Bush on June 12, 1991, to a seat vacated by Frederick Pierce Lively; Confirmed by the Senate on November 27, 1991, and received commission on December 2, 1991 to the 6th Circuit Court. Her education includes: Ohio Wesleyan University, B.A., 1964, Akron University School of Law, J.D., 1971, University of Virginia School of Law, LL.M., 1988. From 1971 to 1983, Judge Batchelder conducted private practice in Medina, Ohio, and from 1983 to 1985 she was a U.S. Bankruptcy Judge, Northern District of Ohio. She is already being compared, by many people—myself included, to Judge Edith Jones.
Number nine is Judge Edith Brown Clement, who currently sits on the 5th Circuit Court. Prior to her appointment by President George W. Bush, she was a judge on the U.S. District Court, Eastern District of Louisiana (1991-2001) and a lawyer with Jones, Walker, Waechter, Poitevent, Carrere & Denegre in New Orleans (1975-1991). Judge Clement was born in Birmingham Alabama in 1948. She attended the University of Alabama and Tulane Law School. She clerked for Judge Herbert W. Christenberry, a U.S. District Court judge for the Eastern District of Louisiana. Very little is out there about Judge Clement, but from what we have researched, she is a good pick. She is described as thoughtful and careful when dealing with a decision, and she is not apt to follow "emanations from the penumbras" as so many jurists do. (For those unfamiliar with that term, it was made famous in Roe, and to law geeks like me, it literally means to "make it up as you go.") Harvey Koch, an attorney from New Orleans had this to say about Judge Clement: "She's in charge but in a very genteel manner -- an iron fist in a silk glove. She is very deliberate, and she weighs all of the issues."
I know that I stopped with only nine on our list. I am reluctant to reveal the number ten that Marcie and I, jokingly, agree on. As a matter of fact, I won’t. It is just an in-joke between her and I. It is absurd, and stupid, and comes only from long nights up doing tons of research and studying. So, yes, I think we’ll keep number ten under wraps. There’s no need to purposefully tick some people off. But there is our short list, and below are links to a couple places where you can keep up with this whole fight, in addition to our own.
Publius II
http://confirmthem.com/
http://www.sctnomination.com/blog/
http://bench.nationalreview.com/
posted by Syd And Vaughn | 12:44 PM
5 Comments:
Publius,
Call me nosy if you wish, but I would really like to know who number ten is? If it is someone incredibly obvious, E-mail me so I can slap myself in the forehead.
In my opinion, you're hit each of the biggies. I'll admit, I'm not up to speed on Batchelder or Glendon, yet. Though I have heard that Glendon has participated with the UN on a couple of "goodwill tours", including the UN Women's Conference held in China.
I'd like to see her views on international law, and whether she adheres to Breyer's notions that it's necessary when the Constitution isn't "clear." Or, if she comes from the School of Scalia that if the Constitution doesn't address a particular issue, then the court should remand the case back to it's previous court, and let the people decide from that point forward.
Mistress Pundit.
Hey Publius!
Enough of the c**k-tease already...Who's #10? Don't be holding out on your readers. I linked to this site a month ago. You two aren't bad. In fact, you two are pretty damned good, but this is just wrong.
You lead your readers up through nine of the best judges this country has to offer, and now you won't reveal your tenth. Very uncool, man. Come on: How about a hint...Animal, vegetable, or mineral?
Ryan Otten
I agree with all of your nominees on the short-list; why aren't you president?
In seriousness, though, I have to ask this: You named nine, so is this your ideal Supreme Court? Who is number ten you fail to reveal? If this is your "ideal" court, where are Scalia and Thomas. Rehnquist will step down soon enough, but neither Scalia or Thomas are anywhere near stepping down, so, again, if this is your ideal court, where do the two of them fall?
You can't just disregard two of the best justices the court has had in a long time, can you?
Kelly
You RW bloggers are all the same with your secrets. You won't tell anyone anything unless you deem the time is right. Who is your 10th choice, and why do you have to be so damned secretive about it?
Sasha
I enjoy playing the guess who will be the new justice. I told Fdr and Bunny who Bush will appoint. It's a female. She a lawyer. She has the trust of the President. She's a graduate from Southern Methodist. She headed a very large waging organization. Rawriter.
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