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July 01, 2005BELTWAY BLOGROLL
Let The Supreme Court Blog War Begin
Conservative commentator Hugh Hewitt predicted in his recent book about blogging that the next Supreme Court vacancy would trigger "the perfect interblog storm." The makings of that storm appeared on the political radar today, with the announcement that Justice Sandra Day O'Connor is retiring.
Early rumblings in the blogosphere come from:
Ed Morrisey of Captain's Quarters, who will be in Washington next week for a Heritage Foundation roundtable on blogging: "O'Connor's retirement puts more pressure on the Senate than a Rehnquist retirement would have done. Rehnquist has consistenly provided a conservative voice on the court, and replacing him with another conservative would probably not have concerned moderate Democrats, who want to keep their powder dry for selected battles. O'Connor, however, has voted more from the center, and replacing her with a staunch conservative might get some of those moderate Democrats to the firing lines in the political battle to come."
Daily Kos: "Who will Bush appoint? I'm not one to speculate (I'm a chemist, not a lawyer), but I'd say it's a safe bet that it'll be someone conservative, to say the least. ... Alberto 'the Inquisitor' Gonzales is a possibility ... what could possibly be worse?" The site also urges readers to take action and offers tips.
Josh Marshall at Talking Points Memo: "It now appears overwhelmingly likely that President Bush will get at least two Supreme Court nominations, possibly more. So game on. We're looking into setting up a limited duration Court battle group blog over at TPMCafe. More soon.
PoliPundit (via Michelle Malkin): "My choices to replace O'Connor are either Judge Janice Rogers Brown, or Judge Priscilla Owen. Both are sufficiently conservative, young, and female. And both were just confirmed by large margins by the US Senate. It would be very difficult for the 'Gang of 14' compromisers to filibuster either of them."
The Supreme Court Nomination Blog: Recaps cases where O'Connor served as the deciding fifth vote and provides links to potential replacements.
The National Abortion Rights Action League, meanwhile, will be posting news and insights at the Bush v. Choice blog. And RedState.org is running a collaborative blog called Confirm Them.
UPDATE: Ed Kilgore at TPMCafe thinks this is the moment of truth for the Republican Party and religious conservatives. "This appointment represents the giant balloon payment at the end of the mortgage the GOP signed with the Cultural Right at least 25 years ago," he wrote. "Social conservatives have agreed over and over again to missed payments, refinancings, and in their view, generous terms, but the balance is finally due, and if Bush doesn't pay up, they'll foreclose their entire alliance with the Republican Party."
Posted by dglover at July 1, 2005 11:02 AM
Comments
Since Kennedy has already called for his party to oppose any nominee who might attempt to "roll back individual rights", this should be remembered, and brought up whenever private property rights issues come up, or when discussing an individual's right to keep and bear arms.
Posted by: michael spurek at July 1, 2005 12:59 PM
This is the perfect time to put in a conservative. I don't mean a Scalia, but it should be a clear conservative. With luck, the Dems will overplay their hand, and it will start a battle that Bush will surely win (constitutional option or otherwise). Then when Rhenquist retires, we can move up Scalia and replace him with a like-minded arch conservative (probably a female) that will also be hard to oppose. The next one (I am guessing three in this Presidential term) could then be another moderately conservative minority (Asian?). Ginsberg will likely try to hold out until after the next Presidential election (hoping for a Dem win), but I am betting on another Republican victory which would mean 2 more SCOTUS appointments of moderate conservatives. This would help tilt the court away from judicial activism and put it on a sound course for the next 10 years or so.
Posted by: reallygone at July 1, 2005 02:08 PM
We are about to witness the most viscious, brass-knuckle political fight in a generation. Anything but a Hillary Clinton nomination will bring out the leftist Jihadists. Hoefully, the supporters of MoveOn.org will bankrupt themselves on this one.
Posted by: Mike O at July 1, 2005 03:22 PM
Wow! Tempers are already flying! This should be a time of thoughfulness. Our country is so deeply divided. What about a common sense nominee, who actually has the brains to not side with either political party's dogma, but to do the right thing? There are too many hotheaded narrow minded zealots on both sides trying to force their opinions on us. We desperatly need a candidate who will consider each case and it's consequenses. Not just blindly follow any party lines. Both political parties have lost all credibility, as far as I'm concerned.
Posted by: just a girl at July 1, 2005 04:18 PM
The general partisan fireworks related to judicial appointments will be nothing compared to the forth of July-4-like comet collisions we will see as individual senators slather and squirm about protecting their turf, jobs and secrets by doing, each in their turn, what seems nonsensical and self defeating to those of us living outside the putrid, duplicitous, self serving world in which members of the upper house cohabitate.
Why not export lower house procedural rules to the Senate. It would be the next best thing to term limits......I'm just dreaming. The Senate will cave....the Dems have not been out of power long enough for their 'secrets' to lose enough coersive power that would then free up the Senate to act like the 'world's greatest deliberative body" that it thinks it is.
The Dems are still farrrr more powerful than most people think........
Posted by: Ronald Proby at July 2, 2005 10:30 AM
If Dubya appoints Janyce Rogers Brown he will force most of the real, bi-partisan, counter productive scum in the Senate to come to the surface. Big time!. She is the best and safest conservative nominee available. Sadly, if recent capitulatory POTUS moves in the Israeli/Palestinian theatre are any indication, the Whitehouse won't make any bold moves with judicial appointments. It seems that daddy has got a lock hold on Dubya's ear lately.
If, on the other hand, bold, true conservative moves are forthcoming they will likely be as a result of the Rove/ConBase boys doing some serious 'secret' gathering of their own.
Posted by: Ronald Proby at July 2, 2005 10:58 AM
Two different views of federalism: possible O'Connor replacements Wilkinson and Luttig debate the outer reaches of the commerce clause.
Judges M. Luttig and J. Harvie Wilkinson of the Fourth Circuit are often mentioned as possible replacements for Justice O'Connor. Federalism, and what it means in the wake of the Raich decision is an important distinction between Wilkinson and Luttig.
It seems like Luttig's reasoning in the dissent below (Gibbs v. Babbitt) would suggest that he would have voted to invalidate the marijuana regulation in question in Gonzales v. Raich.
In Gibbs, Judge Luttig dissented from a decision holding that a Fish and Wildlife Service regulation limiting the killing of endangered wolves on private land was within the commerce power. Judge Luttig argued that the killing of a small number of wolves did not have a "substantial effect" on interstate commerce required by Lopez and Morrison. The case has received media attention because of the criticism of Judge Luttig's views in the majority opinion written by Judge Wilkinson. Judge Wilkinson argued that Judge Luttig "would rework the relationship between the judiciary and its coordinate branches" by allowing courts to invalidate laws based on "a judge's view of the wisdom of enacted policies."
Judge Luttig's view of the substantial effects test cannot be reconciled with his mentor, Scalia's opinion in Gonzales v. Raich. For starters, the grey wolf taking regulation in question in Gibbs IS part of a larger regulation, the Endangered Species Act. This is the specific reason why the marijuana regulation was upheld by Scalia, because the Congress is allowed to make regulations that reach purley intrastate activities if regulation of those intrastate activities is part of a larger scheme of interstate commerce regulations. Under Scalia's reasoning in Raich, the grey wolf taking regulation would have been valid.
So is Luttig in favor of medical marijuana? The Fourth Circuit has not ruled directly on the medical marijuana issue (none of the states in the Fourth Circuit have passed medical marijuana laws), see Raich at fn1. See e.g. United States v. Dash (10th Circuit 1997)(maufacturing controlled substance can be reached by the commerce clause based legislation). Proyect v. United States (2nd Cir. 1996) (manufacturing marijuana can be reached by commerce clause based legislation).
However, in United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995), Judges Russell, Hall, and Widener upheld the CSA's application to the growing of thirty three marijuana plants. Judge Luttig did not participate in the decision. The Leshuk decision itself simply says that because Congress made explicit findings that the manufacture of marijuana substantially affects commerce (and Congress failed to make the findings in the Gun Free Schools Zones Act), the CSA is valid. However, there were findings made by Congress in the VAWA, and they are explicitly discussed in Luttig's dissent in Brzonkala.
Luttig specifically criticizes finding an act of Congress contitutional against a commerce clause challenge just by making conclusory "findings." Luttig states: "Ignoring entirely the overarching change in Commerce Clause analysis wrought by Lopez, the majority merely recites several statements from House and Senate committees on the general problem of violence against women and the effect of that violence on the national economy, together with a sentence from a House Report stating that violence against women substantially affects interstate commerce (incidentally, never mentioning that the Senate, as opposed to the House, did not conclude that such violence substantially affects interstate commerce) and then simply states, without more, that the Act is constitutional."
Luttig suggests that he could have found differently on the issue in Leshuk:
"The majority's wholesale deference to a committee finding would at least be understandable if that committee had made extensive findings deserving of deference. However, the majority ultimately sustains the constitutionality of the Act literally on the basis of a single sentence appearing in that committee report, which sentence is, itself, entirely conclusory."
United States v. Leshuk:
http://www.law.emory.edu/4circuit/sept95/945839.p.html
See Gibbs v. Babbitt, full case available here:
http://pacer.ca4.uscourts.gov/opinion.pdf/991218.P.pdf
Brzonkala v. Virginia Tech, full text here:
http://pacer.ca4.uscourts.gov/opinion.pdf/961814A.P.pdf
Luttig is a true federalist and seems willing to examine the sum and subtance of Congressional findings vis-a-vis the substantial affect any given activity may have on interstate commerce. He probably would have bucked his mentor Scalia and voted with Thomas in Gonzales v. Raich.
Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or chipesq@hotmail.com.
Posted by: Chip Venie at July 8, 2005 10:03 PM
I predict Elizabeth Dole. Woman. Not a Judge. Senator, so harder for senators to be against her. Harvard Law grad. Conservative, but not extreme. Negatives: some political baggage and age
Posted by: Paul at July 13, 2005 08:36 PM
There's a quite wonderful solution proposed at the Daily Pepper blog for the Supreme Court vacancies problem. It involves the greatest good for the greatest number. www.dailypepper.com
Posted by: Loerke at July 14, 2005 05:58 PM
