The Washington Post is reporting that President Bush has narrowed his list of candidates and will announce a nominee to replace Justice O'Connor in the next few days. And that's not all:
As Bush interviews his finalist or finalists, the White House has kept secret his paring-down process. Some advisers said they increasingly believe the president may pick a woman to replace O'Connor, the nation's first female justice, just as first lady Laura Bush publicly urged him to do last week. "There's a lot more focus on a woman," one GOP strategist said.Bush also has considered several African Americans and Hispanics, although allies believe he is now leaning against appointing Attorney General Alberto R. Gonzales, a friend.
This is very interesting. If he chooses a woman, the list is fairly short. It seems highly unlikely that he would try and push through either Priscilla Owen or Janice Rogers Brown so soon after finally getting them on the court of appeals. That leaves the two Ediths - Edith Jones and Edith Brown Clement, both of the 5th Circuit. But Jan Crawford Greenburg just reported in the Chicago Tribune that the White House had taken Jones off the list because of her strident anti-abortion views:
But already, the stock of at least one prospective nominee who is a favorite of the conservative base has dropped, in part because of concerns that her strongly voiced views against abortion would alienate Collins, Snowe, and other Republican moderates, such as Sen. Lincoln Chafee (R-R.I.).Sources close to the White House say Judge Edith Jones, of the New Orleans-based federal appeals court, is no longer under serious consideration.
Some of Jones' opinions, notably a 2004 abortion decision, could put off moderate Republicans, they said. In that case, Jones said she hoped the justices would reconsider Roe vs. Wade, which said women have a constitutional right to an abortion. She also criticized the court for stepping too readily "into the realm of social policy under the guise of constitutional adjudication."
That seems an odd statement to me. Virtually all of the nominees on the short list have made statements highly critical of Roe v Wade, so if Jones is "off the list" for that reason, why aren't Luttig, Roberts, McConnell and others? It appears we have dueling unnamed sources. But it also appears that the list of potential nominees, and the reasoning being considered in choosing among them, is a bit broader than imagined. If Bush is genuinely considering trying not to alienate moderate Republican senators, then there might not be a staunch conservative nominee on the way. Stay tuned.
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I am tired of staying tuned; I am so looking forward to the confirmation battle.
As a long time court watcher, this is more fun to me than a World Series. (And I'm from Boston).
I am curious what other's think about the gender issue. Do you think it is possible for a women to be a real bona-fide "strict contructionist"?
I don't. I think when push comes to shove, gender matters.
I think there may be a dark horse candidate in 7th circuit justice Diane Syke.
Relatively young. Conservative. Had little to no opposition on her previous confirmation hearing (this was largely due to the fact that the dems and reps cut a deal so that the Governor of Wisconsin could appoint a liberal to the Wisconsin Supreme Court to replace Sykes, which shifted the balance).
Can you clarify what you mean by "strict constructionist"? It seems the term is used in different ways by different people. From what I can tell, it's primary meaning is the opposite of "deconstructionist," i.e. taking a text at face value and not trying to psychoanalyze the author. I'm not sure why men would be better at this than women. Perhaps you are referring specifically to Roe or some other ruling?
Bush has said that he wants strict constructionists. I think what he means by that is one who will interpret the words exactly as the were meant at the time that they were written.
I have also been led to believe that those who would adhere to such an interpretation would also be less inclined to respect precedent.
Interpreted strictly, any law that effectively discriminates against women is perfectly constitutional.
Do women have any constitutional rights beyond the right to vote?
John wrote:
What Bush means by that is "people who agree with me." The phrase "strict constructionist" may have a valid meaning in a discussion among legal scholars; when used by politicians, it is little more than a catchphrase. I doubt Bush has the foggiest idea what it genuinely means in a legal context.
Not necessarily so. At the same time that Bush says he wants "strict constructionists", he also says he wants more judges like Scalia and Thomas. But Scalia and Thomas differ greatly on the subject of respect for precedent, or stare decisis. Scalia thinks precedent matters, Thomas does not.
Why? The 14th amendment is still part of the Constitution. Strict constructionism - the real thing, not the political codeword - doesn't mean that only the original constitution matters and not subsequent amendments. In fact, a strict constructionist would agree that later amendments supercede the original text and take precedence over it where applicable.
Women have the same constitutional rights men do.
I have always believed that every "right" that women enjoy, except the right to vote, comes from the legilature or a less than strict construction of the constitution.
I may be wrong, but it sounds to me like Mr. Scalia is making my point.
http://www.courttv.com/archive/legaldocs/rights/scalia.html
John wrote:
I really don't know what this means. At no point in the constitution is any right discussed that applies only to men. Every provision in the bill of rights speaks only of "the people" or "persons", none of them specifically to women. It's true that the original constitution did not guarantee women the right to vote, but that is because it left the question of who could vote entirely to the states. Some states allowed some women to vote, some did not. But there are no rights, enumerated or otherwise, in the constitution that apply only to men and not to women.
I don't know what you meant by Scalia making your point. It's a huge speech and I'm not going to take the time to read it to find out. Perhaps you could cite a specific passage that you think supports this point.
Ed,
As you have noticed, I'm sure, I lean towards the paranoid side.
The whole concepts of "originalism" and "strict contructionism" seem to be pure evil to me. When I read things like this, from Scalia.
"If people then thought the way people think now, there would have been no need . There was an equal protection clause, right there in the Constitution
in 1920. As an abstract matter, what in the world could be a greater denial of equal protection in a democracy than denial of the franchise. [sic] And so why didn't these people just come to the court and say, "This is a denial of equal protection"? Because they didn't think that way. Equal protection could mean that everybody has to have the vote. It could mean that. It could mean a lot of things in the abstract. It could meant that
And since that was not its meaning in 1871, it's not its meaning today. The meaning doesn't change."
I worry, perhaps overmuch.
John-
I think that Scalia is essentially right. Under the original constitution, decisions on who could and could not vote were explicitly left to the states to determine. Hence, the equal protection clause was not enough to mandate women's suffrage, it required an amendment. But either way, what Scalia is referring to here is not the constitution in general and "rights" in general, but whether one specific clause mandated one specific result. In no way does it support the conclusion that the constitution does not guarantee women the same rights as men.
As far as originalism is concerned, I disagree with you that they it's "evil" or anything like that. I'm not a big fan of conservative originalism, obviously, but I think originalism is an important tool of constitutional interpretation, perhaps the most important one. Ironically, I do not think that most of what passes for originalism among conservatives is, in fact, faithful to the original meaning.
Ed,
Thanks for helping me understand; that is why I come here.
I think what bothers me about originalism is that one can, when trying to understand the original meaning, is take a look at the state of the law, and the culture of the time in which is was written, and come to an unfortunate conclusion that if it was good enough then, then it's good enough today, ignoring the changing times.
Thinking specifically of Lawrence, both Scalia and Thomas came to what I see as an impossible conclusion that one's most private behavior can be criminilized, just because that's the way it's always been.
John-
I agree with you on that. That's why I think that a genuine originalism is one which applies the principles of our founding logically rather than historically. That means we apply the principles, not necessarily the founders' inconsistent or compromised application of them. The dominant story of American history is inexorable movement toward more and more complete application of the principles of the founding. It's not an accident that the abolutionist movement, the women's suffrage movement and the civil rights movement all looked to the principles in the Declaration of Independence for support and inspiration. Those principles, fairly and consistently applied, have power. The fact that our founders, as men of their age, did not always apply them fairly or consistently does not take away from that power.
"What Bush means by that is "people who agree with me." The phrase "strict constructionist" may have a valid meaning in a discussion among legal scholars; when used by politicians, it is little more than a catchphrase. I doubt Bush has the foggiest idea what it genuinely means in a legal context."
That's what's so cunning about Bush's famous "no litmus test" promise. He gets to pretend that he's being open minded and tolerant, but his definition of "strict constructionism" clearly excludes Roe vs Wade. So strict constructionism becomes its own litmus test.