My SCOTUS Pick is Still Edith Jones:

Since Orin and Eugene have re-upped the brilliant and talented Michael McConnell--who I agree would be an exceptional Justice--I will re-up Edith Jones and in the alternative, Alice Batchelder who I commented on some time ago. If the President seeks a woman, Jones remains the obviously correct choice in my book. Personally, I would be blissful with any of them, and many others as well.

While I'm at it, I figured I would go ahead and re-up this post on Judge Jones's decision in McCorvey v. Hill, where she concurred and discussed the state decisis and mootness problems spawned by Roe. If she ends up being nominated, I would encourage to you read what she actually wrote there which I think is more complicated and interesting that it has been described elsewhere.

What does everyone make of the one sentence in the AP story that a White House official noted that Miers was barely selected over Alito.
10.27.2005 3:51pm
Paul Secunda (mail):
Todd: Is this really a practical choice? Edith Jones has a record of decisions on civl rights issues in the 5th Circuit that can only be described diplomatically as outside even the conservative mainstream. Does Bush dare pick a candidate that the Group of 14 might filibuster? Or am I wrong, and are you merely saying that this would be the best choice if you did not have to worry about such things as filibusters?
10.27.2005 4:14pm
Dilan Esper (mail) (www):
I think Edith Jones would be filibustered. She would be highly controversial because she is pretty ideological and hates Roe. So it depends on whether Bush wants a fight or not.
10.27.2005 4:17pm
Anderson (mail) (www):
Hey Todd, give us a talking point against Jones's most notorious decision, i.e., that the right to counsel doesn't imply the right to awake counsel.
10.27.2005 4:17pm
Simon (391563) (mail) (www):
Whatever one thinks of Roe (I'm no fan myself), I found Judge Jones's editorializing in her concurrence to be wholly inappropriate. As her opinion recognized, she (the court) had no jurisdiction over the matter, so instead she appended a sermon on the matter.

If she wants to write an article or essay about Roe, and why it was badly decided and possibly no longer valid law, fine. I have no problems with judges doing so. (Cf. Posner's corpus.) But I think doing so in the context of a judicial opinion -- even a concurrence -- is an abuse of her position.
10.27.2005 4:21pm
Dilan Esper: "So it depends on whether Bush wants a fight or not."

Oh, we know Bush doesn't want a fight; the question is, does he want his base?
10.27.2005 4:28pm
frankcross (mail):
If you read the McCorvey opinion, it sure looks like she is using "fact-intensive inquiry" as a surrogate for judicial policymaking or "judicial legislation". Not that I personally think that is such a bad thing, but it looks a little odd in the mouth of a favorite of conservative/strict constructionist/originalists.
10.27.2005 4:34pm
Bob Flynn (mail):

I think Edith Jones would be filibustered

Do you think Edith Jones should be filibustered?

In my view, both Jones and Batchelder would be fine selections. My first choice, though, remains Kozinski -- and it looks like I'm sailing that ship solo:)
10.27.2005 4:37pm
Greedy Clerk (mail):
Judge Jones, let me introduce you to my friend Phil A. Buster.

Do you think Edith Jones should be filibustered?

It doesn't matter what I think, but yes I do. She is a judicial activist who will make law, not interpret it.

10.27.2005 4:42pm
Joe Hill:
Edith Jones should be filibustered for being an ideological zealot. Alice Batcheleder should be filibustered for being an ideological zealot and for being unqualified.
10.27.2005 4:43pm
Matt Barr (mail) (www):
Dusting off my My Favorite Supreme Court Nominee Internet quiz. Priscilla Owen led comfortably after nearly 15,000 votes, followed by Karen Williams.
10.27.2005 4:48pm
elaine (mail):
One of the first cases I worked on as a junior associate was argued before a panel that included Jones. As part of preparing the senior partner for argument, I had to read a great deal of her work and was nothing but impressed (as was the absolutely liberal senior partner I was working for, whose judgment was a lot more seasoned than mine).

I was then overwhelmingly impressed by her knowledge and intelligence, both at oral argument and in the opinion that followed. In the years that have followed, I've seen few appellate judges with the same ability to think on their feet about really complex issues and the consequences that flow from legal decisions.

I'm politically distant from Jones on many issues, but my view has always been that the team that wins the election gets to pick the umpires. As far as qualifications go (the only thing that matters to me), Jones is 100% qualified. To me, she's not even a "female" pick -- she's as solidly qualified as any person of whatever genitalia on the federal bench.
10.27.2005 4:55pm
Dilan Esper (mail) (www):

Whether Jones should be filibustered depends in part on whether the compromise to prevent the nuclear option will hold. I think the nuclear option was based on terrible constitutional interpretation, i.e., that the Presiding Officer of the Senate can force a majority vote on a Senate Rule by disingenuously claiming that the rule is unconstitutional when it isn't. It would do great damage to the counter-majoritarian traditions of the Senate. And it would be especially bad because the Senate majority itself does not reflect a majority of the country, because the "red states" are overrepresented.

So I would not favor ANY filibuster that would result in the nuclear option being exercised.

On the merits, though, I think Edith Jones is likely to be a conservative judicial activist, i.e., to try to enact her conservative views into law whether or not the Constitution supports them or the proper case presents itself. If there is a way to block her, I would certainly prefer that she be blocked. In contrast, I think that McConnell will be conservative but not activist, and should be confirmed if nominated.
10.27.2005 4:59pm
Why hasn't anyone suggested Latham partner Maureen Mahoney as a possibility for this reopened slot? She was nominated by Bush I to the E.D. Va. and the Senate never acted on the nomination. Is she too "disloyal" to the team for her participation in the Michigan affirmative action cases? I think she would be a good choice.
10.27.2005 5:01pm
anonymous coward:
"[Going nuclear] would do great damage to the counter-majoritarian traditions of the Senate."

Sure, but is that a bad thing?

I don't think Bush is going intentionally provoke a nuclear-option battle over SCOTUS. That's why Owen, Brown, et al. are out of the running. But it would be great fun, and has a smallish but real chance of paying off for our increasingly-lame duck Prez.
10.27.2005 5:17pm
Bob Flynn (mail):
Mahoney would be a great selection, too. None of these folks deserve to be fillibustered
10.27.2005 5:22pm
Hans Bader (mail):
5th Circuit judge Edith Jones would be a superb justice, and 6th Circuit judge Alice Batchelder would be nearly as good. Both are highly qualified and experienced both in constitutional law and in the business law issues that the Supreme Court all too often neglects.

But Batchelder is easier to confirm. She has voted to uphold laws protecting against partial-birth abortions and to strike down racial quotas, but the public agrees with her on those issues. She has not taken more far-reaching and controversial positions, like calling into question earlier-term abortions, or banning all affirmative action per se. She has decided cases on the narrowest possible grounds, avoiding judicial activism.

Perhaps Batchelder should be nominated. She could be confirmed.

Justices Maura Corrigan and Robert Young of the Michigan Supreme Court would be excellent choices, too, and Karen Williams of the Fourth Circuit would be OK.

All of the above choices would be qualified, and would appeal to Bush's desire for racial or gender diversity.
10.27.2005 5:25pm
Todd: the comments on your prior post on Jones' concurring opinion didn't really address the central issue about whether it is possible to create an adequate factual record to challenge Roe. Jones' arguments for that claim are not very persuasive. Here's what they amount to:

Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey; see Casey, 505 U.S. at 872-78, 112 S. Ct. at 2817-21). No "live" controversy will arise concerning this framework.

But why not? There is nothing stopping a state political majority from creating a test case by passing a law limiting abortion. That law could be supported by a substantial legislative record that includes the social scientific evidence that Jones refers to in her opinion. For that matter, such evidence could have been introduced in recent challenges to partial birth abortion statutes.

But all that talk about the factual record really isn't the issue. And your suggestion that Jones leaves open whether Roe should be overturned is hard to take seriously. Jones' opinion reads more like a merits brief challenging Roe, citing only the social scientific evidence produced in McCorvey's brief. It's true that Jones is cautious not to close the door on the possibility that there might be scientific evidence pointing in the other direction. But then, how could she not? It'd be rather embarassing to make conclusive scientific claims in a concurring opinion, only to be confronted by the very real possibility that there is no existing or emerging scientific consensus on these issues. At any rate, Jones' lack of impartiality in citing the factual development over the last few decades is not surprising. This was a not-so-thinly veiled attack on the central holdings of Roe and Casey. Given the tone of the opinion, it seems sort of silly to pretend otherwise.
10.27.2005 5:34pm
Jones and Owen both would lead to precisely the nasty partisan food-fight that the White House neither wants nor needs right now.
10.27.2005 5:34pm
Houston Lawyer:
I just want to see a liberal senator's head explode. If a filibuster holds, it holds. We do have another election coming up in 2006. Obstructionism isn't a great platform to run on and it is fun to run against.

This is why I favor the nomination of Justice Brown. Watching the Klu Klux Kleagle filibuster her would be even more entertaining than the Anita Hill fiasco.
10.27.2005 5:35pm
Humble Law Student:
I think Bush might as well nominate a stalwart conservative, because the only support he can still lose is his die hard supporters. He probably isn't going to gain any additional support from moderates if he nominates someone "mainstream" (whatever that means anymore). Therefore, its likely the best he could hope for is to reinvigorate his somewhat disillusioned base by nominating someone fairly conservative. Its either maintain the status quo, or a metaphorical cutting of his own wrists.
10.27.2005 5:45pm
Joe Jackson:
I'm with you, Todd. W should not continue to repeat his father's mistakes by passing over Jones again.

Alice Batchelder would get through with at least 70 votes. Batchelder has a wealth of experience -- she has been a federal judge at both levels, for a combined 25 years, has authored more than 800 opinions, and is a powerful writer. Although she has a strong conservative record, she is a judicial minimalist if there ever was one.
10.27.2005 5:51pm
Who do you think is the most likely nominee? Most qualified has already been debated to death.
10.27.2005 5:57pm
Probably someone no one has ever heard of.

This administration seems dead-set on appointing another Souter.
10.27.2005 6:05pm
Anderson (mail) (www):

My first choice, though, remains Kozinski -- and it looks like I'm sailing that ship solo:)
This Dem would volunteer as first mate, but K. is too smart for this White House.
10.27.2005 6:12pm
anonymous coward:
"I think Bush might as well nominate a stalwart conservative, because the only support he can still lose is his die hard supporters."

But weeks of headlines screaming about Roe being endangered by a right-wing Justice could re-energize liberals and some pro-abortion centrists. What Bush wants to do is make the base happy without enraging everyone else--see Roberts, Chief Justice John.
10.27.2005 6:21pm
Kozinski has expressed too much skepticism about the breadth of executive power, particularly with respect to the rights of the accused, for him to be under serious consideration by this administration.
10.27.2005 6:24pm
David M. Nieporent (www):
Bob: Kozinski would be my choice, so you're not alone.
10.27.2005 7:23pm
Plainsman (mail):
Judge Kozinski would also be my dream nominee (selection effect applying to VC readers?). However, he is too cheeky and cerebral for Bush. The issue mentioned by AnandaG is one of the reasons I like Kozinski so much. It is also a reason why he will not be nominated by this President.

Ah well. Alito or McConnell would be great as well.
10.27.2005 7:27pm
Two thoughts, and a link:

1) The Roberts' nomination was fantastic politically and otherwise. Bush is still sitting great on that. A good nomination here, and his legacy among conservatives could be alot better than most imagine.

2) The Jones' concurrence above is a very intriguing piece of writing as Professor Z suggests. It would be overly simplistic to dismiss as a piece of drivel that ignores stare decisis. It is a careful piece of writing, and embodies a sense of realism. Other members of the Court are often unwilling to display such candor when they chuck a line of cases out the window. See Griswold, Lawrence. Why not just fess up to the fact that social science or societal attitudes have necessitated a new consideration of an issue (See Brown)?

As to the link:

(Interesting article from someone who seems to know Judge Alice Batchelder)
10.27.2005 7:29pm
Kozinski would be great, but his problem is that although he's arguably conservative, he's too idiosyncratic for the NRO crowd, and has too much of a sense of humor, which of course is the kiss of death for idealogues of any stripe.
10.27.2005 7:45pm
Sixth Circuit Lawyer:
Batchelder is an extremely poor pick for Supreme Court. She was part of the problem when Sixth Circuit judges were making personal attacks on each other in opinions a few years ago. She even joined one opinion that claimed that something another judge wrote was "simply a lie."

If I wrote what Judge Batchelder attached her name to, I could have my law license suspended. She certainly does not deserve a promotion.
10.27.2005 7:52pm
Cato the Younger:
Since you provide no citation, I guess we are just supposed to assume that it is true.

Assuming it is true, who was it? Boyce Martin? Eric Clay? There are, unfortunately, several judges on that circuit who do lie, and do so routinely. Martin rigged one of the most important con-law cases of the last 25 years, and his defense (to paraphrase Clay and Moore's concurrence in Grutter) was, "so what, we do that all the time." Several of them are simply out of control, and ignore precedent, revive long-dead ancient writs to give themselves unheard of powers (do a google search for "Clay" and "Moore" and "audita querela"), and yes, intentionally misrepresent facts in order to make their wacky opinions seem more reasonable. There is nothing wrong with calling a "spade" a "spade."
10.27.2005 8:41pm
frankcross (mail):
Not that hard to find. First, it was an opinion written by Boggs not her, which she joined. Second it was an enbanc opinion, with three dissenters so the reference was to all the other judges of the circuit.

But with such language, she would fit right in on the Supreme Court
10.27.2005 9:17pm
The naivete of much of what I'm reading here, even from people I normally respect like EV and OK, is breathtaking. Anyone who honestly thinks that Bush is just going to accept this spanking and toe the conservative line hereafter is fooling himself. This is not a president who takes this kind of thing lightly.

Be careful what you wish for.
10.27.2005 9:17pm
Greedy Clerk (mail):
>I>Kozinski would be great, but his problem is that although he's arguably conservative, he's too idiosyncratic for the NRO crowd, and has too much of a sense of humor, which of course is the kiss of death for idealogues of any stripe.

Also, he rules against big business way too much. Moreover, it is a fact that he is not well-liked by many of his colleauges, and this could cause some concners of "judicial temperament." Finally, the guy is just not the kind of guy Bush would like --- Bush wouldn't understand his funny accent and would probably peg him for someone who would apply the dreaded furin lawr.

10.27.2005 9:20pm
Cato the Younger:
Ah yes, the Byrd case. Nothing Boggs said was incorrect. This was precisely my point, by the way. The last few years of C.J. Martin's tenure went like that a lot -- the libs on the court would simply enter orders as they pleased, without any discussion or even the benefit of a real vote. They would try to cover the butts later by pretending some process had been followed when, in fact, it had not. But then again, who would expect anything different from the judges that (literally) rigged Grutter?

Like I said, calling a spade a spade.
10.27.2005 9:53pm
Other than he is a white male, what is the argument against McConnell? He won't piss off the base and he will have the support of significant parts of liberal academia, making his opponents appear to be naked partisans. I can't think of another nominee that would be as politically shrewd for Bush. What am I missing
10.27.2005 10:04pm
Bruce Lagasse (mail):
Wouldn't a google search for "Clay" and "Moore" bring up the Lone Ranger?
10.27.2005 10:43pm
3Lanon (mail):
The citation for the Byrd case with the "simply a lie" dissent (and other scathing dissents), for anyone who is interested, is 269 F.3d 578.
10.28.2005 12:01am
Cato the Younger:
Bogg's Grutter dissent is a worthwhile read too. It contains the infamous "appendix of procedural irregularities" where Boggs lists all the ways in which Boyce Martin violated circuit rules in order to guarantee the left that affirmative action would be upheld. Some truly despicable stuff.
10.28.2005 1:07am
Sixth Circuit Lawyer:
The ability to express strong disagreement with a degree of civility is an essential part of being an appellate judge. Batchelder doesn't have that talent.

The rhetoric Batchelder attached her name to would give the Democrats and liberal groups license to throw similar rhetoric back at her in a confirmation fight.

As to Cato's comment about "last few years of C.J. Martin's tenure," I think a more accurate description is that the conservatives couldn't accept that sometimes they would lose the vote on a big case. Instead of accepting defeat, they came up with excuses and dumped their sour grapes into court opinions.
10.28.2005 4:41am
Cato the Younger:
Sorry, Sixth Circuit Lawyer, you are either completely uninformed or dishonest. In the Byrd case that you referred to, the judges never even had a vote. Martin spoke to some of his allies over the phone, and entered an order presuming that the other judges voted a certain way. It was a clear violation of circuit rules.

During Grutter, Martin crossed Judge Stafford's name off the panel (which by ciruit rule is determined at random) and improperly inserted his own name. The actual sheet with the crossed-out name, by the way, still exists, and I am sure you could get a copy of it if you file a FOIA request.

Martin then refused to docket the case en banc, as required by the rules, but instead put a bunch of issues in front of the panel that he had improperly put himself on. Martin then refused to circulate the en banc petition to the members of the court, and refused to schedule the appeal for months while he waited for two conservative judges to take senior status. During that time the judges called his chambers on a nearly daily basis, and they sent him numerous emails, voice mails, faxes, and letters asking him what was going on. Martin never responded to any of this correspondence. He stalled for months and scheduled the en banc review just after the second judge took senior status and was no longer able to sit on the en banc panel.

Martin should thank his stars that he was not impeached. He certainly could have been. All of the necessary findings were already made by the circuit court during its subsequent investigation.

"Dumping sour grapes?" Call it that, if doing so makes you feel better. I, for one, am glad that Boggs has the guts to stand up to criticism from other judges and uninformed critics like you in order to expose the rank corruption on that circuit.
10.29.2005 4:59am
SIxth Circuit Lawyer:
The allegation of a "lie" was premised on Judge Boggs' argument that no execution would occur for eight days, so (in Boggs' view) the majority's claim that their were exigent circumstances was "simply a lie."

To be charitable, that was "simply wrong." The argument was occurring on September 11 (yes, THAT September 11). According to Judge Jones, the execution date was September 12.

Further, Judge Martin did not just speak "to some of his allies over the phone," he polled enough judges to get a majority for a stay.

I'll be more charitable than you by all this an "error" by you and Judge Boggs. But, by your definition of "lie," which conflates being wrong with intentionally telling a falsehood, you, Cato, are a "liar."

As to the Grutter case, Chief Judge Martin followed an established procedure to remove a non-Sixth Circuit judge from a panel. He then substituted himself, something he had done before without complaint. Judge Boggs claims that he personally did not know, but he does not contest his colleagues knew about it.

As the concurring opinions shows with devastating effect, Judge Martin held the initial en banc request until briefing was complete, as was the practice.

Initial en banc decisions are almost never granted. In fact, the panel had authority to deny it immediately. So the panel actually gave Judge Boggs et al. more of an opportunity to review the decision than the rules required.

Further, one of the judges that Boggs alleges was kept off the case illegitimately was already off the court when briefing was complete (when the initial en banc petition would have been circulated). The other judge left the court fifteen days after briefing was complete (by Boggs' calculation).

A fifteen-day delay is extremely common in appellate litigation. It is more of a hiccup than a delay. So even if the petition had been circulated quickly after the completion of briefing, the excluded judges still would have been excluded.

As to the "daily" phone calls and faxes, according to note 46 of Boggs' dissent, when a senior judge raised questions about the procedure, the en banc petition went to the full court nearly immediately.

As to the sanction, Judge Batchelder was on one side of a dispute, Judge Martin was on the other. Judge Batchelder had the authority to decide the sanction request. She didn't have the votes to win the case, but she had the unilateral power to punish the person who dared oppose her side.

But, back to the point of this thread. Both the Byrd and the Grutter matters show that Batchelder lacks the temperment to be a Supreme Court justice. She, like you, Cato, couldn't see the difference between an argument she disagreed with and a lie.

Batchelder had the opportunity to take the high road, as did her fellow Grutter dissenters Judge Siler and Judge Gilman, but she chose the low road. Batchelder chose to give every action of her opponent a sinister motive, when she had no evidence of the motive.

These are not signs of a judge worthy to sit on the US Supreme Court. They are the signs of sour grapes.
10.29.2005 5:09pm
Woody Woodpecker (mail):
Read the first paragraph of Jones' unusual concurrence in McCorvey:

"It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness and brought forth, instead of a confined decision, an 'exercise of raw judicial power' (cites omitted). Even more ironic is that although mootness dictates that Ms. McCorvey has no 'live' legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe."

Read it a few times slowly. Am I crazy, or is she a terrific writer? The whole decision is terrific.

As to the unusual circumstances of this concurrence? I don't see the problem: it's dicta, no more, no less. She doesn't pretend that the fact that the "evidence she offered could have generated an important debate over factual premises that underlay Roe" allows the court review of the claim. Rather, as one poster suggested, it could be an invitation to a state legislature to draft a statute in contravention of Roe, on the basis that Roe is limited to the scientific evidence cited in 1973.

Some have suggested that, in writing this weird opinion, she threw in the towel. I don't think so. The main opinion is restrained, following the law to a T, while the concurrence makes clear that she would desperately like to review the claim. Translation: she is a staunch conservative, but also a committed non-activist. She says it all in this one opinion.

I'm hoping for Luttig, Jones, Alito, or Brown, but I'm actually praying for Jones, no kidding.
10.29.2005 6:37pm
Cato the Elder:
My namesake was dead-on.

Sixth Circuit Lawyer should apply for a job writing screenplays for Michael Moore. Literally every factual assertion made in SCL's screed is incorrect and is a provable matter of public record. There was a full investigation of all of the Grutter nonsense, and it was quite clear that Martin violated numerous rules and purposely delayed the hearing for months until two judges took senior status. Suggesting otherwise only damages your own credibility.

None of this matters anyway. On Monday, Bush will name Alito. Then you can turn your attention toward making personal attacks on him and pretending you are Third Circuit Lawyer.
10.29.2005 9:31pm
Sixth Circuit Lawyer:
Cato the Elder, I guess we'll just have to challenge the other readers to check the various opinions in Byrd and Grutter. They can judge for themselves.

If I used Cato-the-Younger's definition of dishonesty (an argument that the speaker disagrees with), I would call you a "liar." But I won't sink to the level of Cato, Boggs, or Batchelder.
10.30.2005 7:20am
Cato the Elder:
Nice job there, calling me a "liar" while pretending to be above smears. I, for one, am content letting people read the decisions for themselves. Unlike you, I don't need to end with a spurious attack. The facts are on my side, and that is enough for me.
10.30.2005 12:42pm
Sixth Circuit Lawyer:
Cato the Elder,

I agree with one thing you said--others can read the opinions and come to their own conclusions.

And no, I did not call you a "liar." I said that you were a "liar" under an unfair and incorrect definition of "lie." But it's a definition that Boggs and Batchelder shamefully adopted. I don't think you're a liar. I think you're wrong.

It's interesting that some conservatives can't distinquish between the qualities of a good judge and the qualities of an effective talk radio host.
10.30.2005 1:31pm
Sixth Circuit Attorney:
And as to the Michael Moore allegation, you are the one spinning conspiracy theories to try to undermine a vote you wish had gone the other way.
10.30.2005 2:09pm
Cato the Elder:
This is what I was talking about -- trying to slip in the last word because your arguments cannot stand on their merits. I have nothing left to say. The facts speak for themselves.
10.30.2005 3:03pm