April 24, 2010
I recently asserted that any of the four people on the list initially leaked by the White House would be an excellent nominee to succeed retiring Justice John Paul Stevens. (See "An Excellent Supreme Court Shortlist," 4/10/10, p. 15.) Now I'd like to argue that the wisest choice would be Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.
I hasten to...
April 10, 2010
With the long-expected announcement by Justice John Paul Stevens that he will retire by July, the coming summer could be dominated by a big confirmation battle -- or perhaps just enlivened by a little skirmish, if President Obama picks a relatively uncontroversial nominee.
Many Republicans are spoiling for a fight to rev up their base for the coming elections. Some would depict any Obama nominee...
May 15, 2009
Barack Obama first explained his "empathy" test for choosing justices in voting against the nomination of John Roberts to be chief justice in 2005:
What matters on the Supreme Court is those 5 percent of cases that are truly difficult... In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal...
May 12, 2009
President Obama will not begin interviewing possible Supreme Court nominees until next week at the earliest, according to the White House. So what's going on behind the scenes?
I don't know for sure, but I can guess: Apart from vetting the leading prospects to flush out any character flaws, ethical issues or tax problems of the kind that have plagued some Obama nominees, the White House is...
May 9, 2009
Many hope, and many others fear, that President Obama will choose a crusading liberal activist to energize the Supreme Court's progressive wing.
Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the...
May 1, 2009
Editor's Note: I have been persuaded that I was unfair to Judge Sonia Sotomayor, who is widely seen as a possible Supreme Court nominee, in this article posted on May 1. I regret calling her "exceptionally controversial," which was an overstatement. I also regret citing anonymous claims that she has been "masquerading as a moderate," which I do not know to be true. -- Stuart...
February 7, 2009
President Obama has tried to remain true to his campaign message of bipartisanship. But he's struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It'll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and...
October 4, 2008
The federal judiciary will become markedly more conservative if McCain wins and markedly more liberal if Obama does. This shift will affect the outcomes of cases involving a host of ideologically charged issues, including abortion; gay rights; affirmative action; the death penalty; the rights of suspected terrorists; gun control; property rights; the environment; regulation; and big-dollar...
July 26, 2008
Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.
McCain, eager to establish credibility with conservatives, has bashed liberal "activist judges" who intrude into "policy questions that should be decided democratically,"and...
July 26, 2008
Elsewhere in this issue I discuss how the outcome of the presidential election might affect the Supreme Court's future. Below is a midsummer trivia quiz on the Court's richly quotable past.
Some quotes are by justices, others are about them or the Constitution. Award yourself 1 point for identifying the author of a quote; 2 more for naming the case or the author's written work (where applicable...
July 12, 2008
At the Supreme Court, the right-wingers are always up to no good, and almost always in charge. Or so it seems to the sizable slice of the journalistic-academic-cosmopolitan world typified by The New York Times' editorial page.
A new wrinkle in this summer's assessments is that the conservative cabal appears to have co-opted liberal Justices Stephen Breyer, David Souter, and John Paul Stevens....
October 13, 2007
For all the new attention focused on the tired old arguments about whether Clarence Thomas did or did not talk dirty to Anita Hill almost 25 years ago, his recently published memoir raises far more consequential issues. At the top of the list is Justice Thomas's impassioned account in My Grandfather's Son and recent media interviews of his conviction that racial affirmative-action preferences do...
September 1, 2007
For all the partisan bitterness in the air and the messes that Attorney General Alberto Gonzales has made, it shouldn't be that hard for President Bush to replace him with someone far, far more effective. Nor should it be hard to get a conservative Republican nominee of quality confirmed without giving away the store to Democrats or weakening the presidency.
In particular, the right nominee could...
August 1, 2007
Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.
If and when those nominees face Republican filibusters or other tactics to deny them floor...
July 28, 2007
Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.
If and when those nominees face Republican filibusters or other tactics to deny them floor...
March 3, 2007
A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O'Connor, a disagreement between two of the nation's best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:
What will the legal landscape look like in 10 years? Make your predictions and place your bets.
In a widely acclaimed book...
January 30, 2006
When conservative Washington lawyers who argue before the Supreme Court talk about "the Greenhouse Effect," they don't mean global warming. The Greenhouse in question is Linda Greenhouse, the longtime and esteemed Supreme Court reporter for The New York Times. The "effect" is to subtly push Supreme Court justices to the left. Unless a jurist comes to the court with very...
January 10, 2006
RAY SUAREZ: We are now joined by two court watchers who have been following these hearings closely: Jeffrey Rosen, professor of law at George Washington University and legal affairs editor at the New Republic, and Stuart Taylor, a columnist with National Journal and a fellow at the Brookings Institution.
And Stuart, Judge Alito was in the hot seat for upwards of seven hours. They covered a...
January 7, 2006
Most analysts predict (and I agree) that if confirmed, Judge Samuel Alito will be more conservative than Justice Sandra Day O'Connor, whom he would succeed on the Supreme Court. That's why O'Connor was practically begged to stay on by liberal Democratic senators such as Barbara Boxer of California and Patrick Leahy of Vermont; moderate Republican senators such as Arlen Specter of Pennsylvania and...
December 28, 2005
RAY SUAREZ: As a lawyer in the Reagan administration, Supreme Court nominee Samuel Alito wrote several memos, briefs and letters that have garnered widespread attention since their release by the National Archives earlier this month. In these documents, Alito advised his superiors at the Justice Department on matters ranging from executive privilege to abortion rights to civil rights,...
October 29, 2005
"The Supreme Court [grapples with] the widest range of issues of importance to the law. To give some recent examples: What innovations are patentable and what should be the role of juries in deciding whether a patent is valid or has been infringed? Are police officers entitled to ask the passenger of a car to step outside when they have made a lawful traffic stop? Does the First Amendment...
October 15, 2005
"His mind was great and powerful, without being of the very first order; his penetration strong, though not so acute as that of a Newton, Bacon, or Locke; and as far as he saw, no judgment was ever sounder. It was slow in operation, being little aided by invention or imagination, but sure in conclusion."
October 8, 2005
"She once told me that the president was the most brilliant man she had ever met."
So reports conservative writer and former Bush speechwriter David Frum, in National Review Online. Unless White House Counsel Harriet Miers explains that she was joking or Frum was hallucinating, this alone may cast enough doubt on her judgment to warrant a "no" vote on her Supreme Court...
September 19, 2005
The confirmation battle over Judge John Roberts is about to take center stage. George W. Bush quickly nominated Roberts to serve as chief justice--a move the president had considered all along, according to one adviser close to the process who refused to be quoted because of the sensitivity of the deliberations. Roberts could face some tougher questioning as chief, but barring bombshells, the...
September 17, 2005
"We are rolling the dice with you, judge.... You've told me nothing, ... as if the public doesn't have a right to know what you think about fundamental issues facing them."
September 12, 2005
In 39 arguments before the U.S. Supreme Court, John G. Roberts earned a reputation as an unflappable advocate for his clients. But this week, when Roberts testifies before the Senate Judiciary Committee in his own bid to join the high court, he'll face a different challenge. Instead of sparring with nine erudite justices interested in ferreting out fine points of the law, Roberts will confront 18...
September 10, 2005
In this time of terrorism, the most important marks to be made by John Roberts and President Bush's next Supreme Court nominee on our law and society may not involve abortion, gay rights, women's rights, privacy, affirmative action, religion, or crime. Instead, they may involve claims by Bush, and perhaps his successors, of extraordinary powers as commander-in-chief -- at home as well as abroad...
September 3, 2005
The more-provocative labels hurled at John Roberts by the dozens of liberal groups opposing his nomination seem unlikely to stick, especially once the nation gets to know him through his televised confirmation testimony after Labor Day.
July 30, 2005
Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?
July 23, 2005
Judge John G. Roberts Jr. will "strictly apply the Constitution and laws, not legislate from the bench," President Bush said Tuesday night in announcing his Supreme Court nominee. "Strict constructionist" was on the lips of many Bush-Roberts supporters confident that Roberts is no "judicial activist."
July 16, 2005
Attorney General Alberto Gonzales is a likable fellow and a competent lawyer. He rose from humble Mexican-American origins to join the U.S. Air Force and graduate from Harvard Law School. He has won the trust and friendship of George W. Bush. He wrote 20-some forgettable judicial opinions while on the Texas Supreme Court. And since 2001, he has sat in sphinx-like silence through many high-level...
May 28, 2005
OK, OK, maybe I'm getting a bit carried away. My dream of a Militant Moderate Caucus (even a third party!) shoving the hard-right Republican and hard-left Democratic leaders to the margins, fixing Social Security and health care, and listening to mainstream voters instead of special-interest screamers remains forlorn. But the bipartisan, May 23 deal among 14 mostly moderate senators to bring some...
May 21, 2005
Justice William Brennan Jr. was in an animated mood, even for him. It was May 27, 1987, toward the end of the Supreme Court's first term since Justice William Rehnquist's 1986 promotion to chief justice. The Senate vote had been 65-33, amid bitter attacks -- even charges of perjury -- from liberal groups.
April 30, 2005
California Supreme Court Justice Janice Rogers Brown is the most interesting of President Bush's judicial nominees blocked by Democratic filibusters. So a look at her speeches and judicial opinions may shed light on what the fuss is all about.
December 18, 2004
Consultation. Conciliation. Compromise. Such concepts are in eclipse these days in Washington. Everyone is getting ready for the mother of all confirmation battles. As soon as one of the nine aging Supreme Court justices retires, sports fans expect, President Bush will pick a clone of Antonin Scalia or Clarence Thomas. Liberal groups will "Bork" the nominee as a retrograde, right-wing...
December 11, 2004
Veteran Washington superlobbyist Tom Korologos, now ambassador to Belgium, had some pithy words of wisdom for past Republican Supreme Court nominees whom he helped shepherd through the process: "Your role is that of a bridegroom at a wedding. Stay out of the way, be on time, and keep your mouth shut."
December 11, 2004
President Bush is keeping confidential his short list of possible nominees should one or more Supreme Court justices retire. But in conversations with former White House officials and others, the same names keep coming up. Brief biographies of 10 of them follow, very roughly in order of their prominence in the Supreme Court succession speculation game.
November 20, 2004
A lot of liberals, and a lot of conservatives, think that President Bush is speaking in code when he says he would nominate to the Supreme Court "strict constructionists" who would "faithfully interpret the law, not legislate from the bench."
November 13, 2004
White House Counsel Alberto Gonzales is an amiable man with an inspiring personal story. One of eight children of uneducated Mexican-American immigrants, he grew up in a Texas house with no hot water or telephone. He would be the first Hispanic attorney general. He has the complete trust of the president, whom he has loyally served for four years in Washington, and in Texas before that. He is far...
October 23, 2004
Liberal and conservative interest groups see Supreme Court appointments as a president's most important domestic legacy. So now they are in their quadrennial lather about how Republican appointees could swing the closely balanced Court decisively to the right, and how Democratic appointees could swing it to the left, especially on big social issues that include abortion rights, affirmative action...
June 14, 2003
Conservative and liberal activists, lawyers, political junkies, and the media are abuzz with eager anticipation that this summer will bring the mother of all Senate confirmation battles, with the closely divided Supreme Court's ideological balance at the tipping point. "It is almost certain," Time magazine forecast last month-with more confidence than evidence-"that by the end of...
June 14, 2003
President Bush may well have an opportunity to nominate someone to the Supreme Court. Here are some of the most talked-about candidates:
May 24, 2003
Republicans and Democrats are nearing the brink of nuclear warfare over President Bush's judicial nominations. Unless both sides compromise, the damage to the government and the nation could be profound. Hostilities have raged on and off since the 1987 Battle of Bork, resulting in a downward spiral of partisan bitterness and recriminations. The latest and biggest escalation has been Senate...
November 16, 2002
Amid all the liberal scare talk about how letting President Bush pack the courts with right-wing Neanderthals would end civilization as we know it, it's worth noting that the first new Bush justice, if there are any, probably won't make the Supreme Court more conservative, and may well make it more liberal.
May 11, 2002
If you had to design the ideal candidate for an appellate judgeship, you might imagine a lawyer who wins praise from legal luminaries of both political parties as one of the nation's very best appellate advocates. Someone who has argued dozens of cases before the Supreme Court, who has a stellar track record in both private practice and government service, and who won the American Bar Association...
March 23, 2002
A Supreme Court test of whether candidates for elective state judgeships have a First Amendment right to express their views on legal and political issues has helped bring into focus a disturbing trend in some of the 39 states that choose judges by popular election. Judicial campaigns, once sleepy affairs that incumbents won in a walk, are getting more politicized, meaner, more expensive, and...
February 16, 2002
Federal District Judge Charles Pickering Sr. of Mississippi has the misfortune of being the first Bush federal appeals court nominee openly targeted by liberal groups and Senators determined to block the President from transforming the lower courts-and, if he gets a chance, the Supreme Court-into conservative bastions.
May 12, 2001
President Bush made a strategically smart move in the 15-year-old war of the judges by announcing on May 9 a slate of 11 nominees carefully balanced both to please conservative activists and to disarm mainstream Democrats whose help he will need to avoid partisan gridlock.
April 28, 2001
As George W. Bush passes the 100-day mark, he faces an unusual problem for a new President: Time is already running out on his ambition-advertised during last year's campaign-to make the Supreme Court more conservative.
January 13, 2001
Former Sen. John Ashcroft, R-Mo., is an able and accomplished man who won the respect of many Senate colleagues in both parties. But he is unfit to be Attorney General. The reason is that during an important debate on a sensitive matter, then-Sen. Ashcroft abused the power of his office by descending to demagoguery, dishonesty, and character assassination.
October 2, 2000
RAY SUAREZ: For more on what's at stake for the Supreme Court this presidential campaign we turn to two congressional spokesmen for the Bush and Gore campaigns: Republican Asa Hutchinson of Arkansas and Democrat Barney Frank of Massachusetts. They are both on the House Judiciary Committee.
Joining them are two Supreme Court watchers: Stuart Taylor, legal affairs correspondent for National Journal...
December 11, 1999
It's no secret that the next President could alter the ideological balance on the Supreme Court. The Court is so closely divided that the next appointment or two could produce a shift either to the liberal or to the conservative side. What's less widely appreciated is that the current makeup of the Court so closely mirrors the nation's divisions, with those at the center often striking so...
October 16, 1999
The Democratic spin is that the Republican Senate's Oct. 5 party-line vote, 54-45, to reject Ronnie L. White's nomination for a U.S. District Court seat in Missouri was tinged with racism. At the very least, as President Clinton put it, the vote adds "credence to the perceptions that they treat minority and women judicial nominees unfairly and unequally." The Republican spin is, not...
October 2, 1999
It's taking longer and longer--and getting harder and harder--to fill vacancies on the federal courts. Some new numbers tell part of the story: The average time for Senate action on judicial nominations rose from 38 days in 1977-78 (when both the presidency and the Senate majority were Democratic) to 144 days in 1987-88 (when a Republican President faced a Democratic Senate) and 201 days in 1997-...
July 22, 1996
If you like you judges fair and impartial, and you favor the freedom of speech, then I nave a nasty little conundrum for you. It is presented by the sort of controversy- heretofore unusual, but likely to become more commonplace in the future-that unfolded recently in Georgia, which (like more than half lbs states) has some contested judicial elections. In late June, a lawyer arraigned Mark Merrit...
February 5, 1996
You may not have realized that the Supreme Court-even after a decade under Chief Justice William Rehnquist-is a liberal "judicial dictatorship" that "has centralized control over every moral, political, social, and economic issue in the country," as part of an "intellectual elite that believes the prevailing social order of middle-class America is deeply flawed, unjust,...
March 22, 1993
The thumbnail sketch that has taken hold in commentary about Justice Byron White over the years goes something like this: Started as a Kennedy Democrat when appointed to the Supreme Court in 1962, moved to the right, ended as a crusty Rehnquistian conservative.
The 75-year-old White's announcement on Friday that he would retire at the end of the current Court term provides an occasion for...
November 1, 1991
The fundamental problem with the Supreme Court appointment process is not its tendency to he hijacked by eleventh-hour El-legations of scandalous conduct.
Nor is it the unseemly, kangarocourt atmosphere that sometimes prevails at Senate confirmation hearings.
Nor is it that somebody leaked Professor Anita Hill's allegations of sexual harassment against Judge (now Justice) Clarence Thomas to the...
