-- Some possible Supreme Court nominees if Chief Justice William H. Rehnquist steps down:

_James Harvie Wilkinson III, appointed to the 4th U.S. Circuit Court of Appeals in Richmond, Va., by President Reagan in 1984. He has built a solidly conservative record.


_Larry Thompson, deputy attorney general and the Bush administration's highest-ranking black law-enforcement official until he quit in 2003. He is general counsel at PepsiCo.

_John Roberts, a judge on the U.S. Court of Appeals for the District of Columbia since 2003 and former Rehnquist clerk.

_Michael McConnell, a judge on the Denver-based 10th U.S. Circuit Court of Appeals. A respected conservative legal scholar, he enjoys bipartisan support in the academic community.

_J. Michael Luttig, a Texas native who worked in the Justice Department during the first Bush administration. He was named to the 4th U.S. Circuit Court of Appeals in 1991.

_Samuel Alito Jr., a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia. He is nicknamed "Scalito" because he has views like Scalia.

_Edith Jones, a judge on the 5th U.S. Circuit Court of Appeals in New Orleans and former general counsel for the Texas Republican Party.

_Emilio Miller Garza, a judge on the 5th U.S. Circuit Court of Appeals. President Bush's father considered the Hispanic judge a Supreme Court prospect.

_Theodore B. Olson, Bush's solicitor general until last summer. He represented Bush in the 2000 Bush v. Gore case at the Supreme Court.

Next Justice Appointed to US Supreme Court

114 Alex Kozinski +1500
115 Jon Kyl +1200
112 Orrin G. Hatch +1200
113 Frank Easterbrook +1000
110 Larry Thompson +900
103 Miguel Estrada +900
106 Edith Jones +750
108 Theodore B. Olson +600
104 Emilio Miller Garza +600
102 Janice Rogers Brown +600
109 John Roberts +350
101 Samuel A. Alito Jr. +100
111 James Harvie Wilkinson III -280
107 J. Michael Luttig -350
105 Alberto R. Gonzales

Warning: THIS IS SPECULATION. Obviously, I think it's somewhat well-informed speculation, or else I wouldn't be writing this. But it is speculation.

(1) There will be a Supreme Court resignation within the next week. But it will be Justice O'Connor, not Chief Justice Rehnquist. There are several tea-leaf-like suggestions that O'Connor may be stepping down, including the fact that she has apparently arranged to spend much more time in Arizona beginning this fall. There are also recent intimations that Chief Justice Rehnquist may not resign. This would be consistent with Justice O'Connor having confided her plan to step down to the chief a while ago. Rehnquist probably believes that it wouldn't be good for the Court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed.

(2) President Bush will appoint Attorney General Alberto Gonzales to replace O'Connor. Bush certainly wants to put Gonzales on the Supreme Court. Presidents usually find a way to do what they want to do.

And his aides will have an argument to make to conservatives (like me) who would be unhappy with a Gonzales pick: Bush would not, after all, be replacing a conservative stalwart like Rehnquist with Gonzales. Gonzales would be taking O'Connor's seat, and Gonzales is likely to be as conservative as, or even more conservative than, O'Connor. Indeed, Karl Rove will continue, Gonzales is as conservative a nominee to replace O'Connor as one could find who could overcome

a threatened Democratic filibuster. Bush aides will also assure us privately that when Rehnquist does step down, Bush will nominate a strong conservative as his replacement. They might not tell us that nominee would be as an associate justice, for Bush would plan to then promote Gonzales to chief justice--thus creating a "Gonzales Court," a truly distinctive Bush legacy.

A Gonzales nomination would, in my view, virtually forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence. But I now think it is more likely than not to happen.

KAGAN: I would like to ask you a personal question, Justice Bork. As what you went through back in 1987, what kind of advice would you give to whomever is nominated as it goes forward?

BORK: I don't think I can give any very good advice. After all, as I once put it, it's like asking Custer how to deal with the Indians.

(NEW HAVEN, CT.) - Supreme Knight Carl A. Anderson, head of the 1.7 million member Knights of Columbus, this evening called Judge John Roberts "a first rate choice for the United States Supreme Court." President Bush announced that he would nominate Roberts in a nationally-televised address earlier tonight.

"Judge Roberts is exactly the kind of nominee that members of both parties have described as the kind of choice the President should make," Anderson said. "He is one of the brightest legal minds in America, graduating at the top of his class at Harvard Law School, and has a well-deserved reputation for fairness, integrity and superb judicial temperament on the U.S. Court of Appeals for the D.C. Circuit."

"During his years in private practice," Anderson recalled, "he argued a case pro bono - free of charge - on behalf of some of the District's neediest welfare recipients, who were about to lose their benefits under the D.C.
Public Assistance Act. He is someone who knows and appreciates the plight of the poor, especially those who have the most difficult time getting fair and even-handed treatment in our legal system."

"Judge Roberts' experience in private practice, in the Executive Branch, and as a Judge make him exceptionally well-qualified to serve on the U.S.
Supreme Court, and we applaud President Bush for making such an excellent nomination to fill the vacancy created by Justice O'Connor's retirement,"
Anderson concluded.

The Knights of Columbus is the world's largest Catholic lay organization, with more than 1.7 million members around the world.

he "has a record of hostility to the rights of minorities and women. He has also taken controversial positions in favor of weakening the separation of church and state and limiting the permissible role of the federal courts in protecting the environment.,.. This is a real in-your-face selection by the president, and the Dems' response remains to be seen. Stalwart senators like Edward Kennedy, Chuck Schumer and Dick Durbin can be expected to respond in kind...

Bush took a list of 11 prospects to Europe this month and interviewed five finalists on Thursday, Friday and Saturday. Bush and Roberts met for an hour on Friday after Roberts returned from London, where he was teaching - Appears below the fold, front page next to last column, lead story.

Roberts is one of 19 steering committee members listed in the directory, which was provided to The Post by Alfred F. Ross, president of the Institute for Democracy Studies in New York, a liberal group that has published reports critical of the society....
Federalist Society Executive Vice President Leonard A. Leo said that either he or another official of the organization recruited Roberts for the committee. Roberts's task was to serve "as a point of contact within the firm to let people know what is going on" with the organization. "It doesn't meet, it doesn't do a whole lot. The only thing we expect of them is to make sure people in the firm know about us," Leo said.

Membership in the sense of paying dues was not required as a condition of inclusion in a listing of the society's leadership, Leo said. He declined to say whether Roberts had ever paid dues, citing a policy of keeping membership information confidential.

Whelan, who has been a member of the Federalist Society but said he had no recollection of his own membership on the steering committee, said the society is tolerant of those who come to its meetings or serve on committees without paying dues.

"John Roberts probably realized pretty quickly he could take part in activities he wanted to" without being current on his dues, Whelan said.

The WTO's predecessor, the GATT, was established on... link

Yet further evidence that NARAL’s ideology makes it confuse violence and non-violence: Another amicus brief in Bray was submitted by 17 individuals such as Daniel Berrigan “who have been or are actively involved in the civil rights, anti-poverty, labor and peace movements” and who “share a common belief in the importance of nonviolent resistance to injustice.” That amicus brief, like Roberts’s submitted on behalf of the United States, sided with the position of the anti-abortion protesters that the Ku Klux Klan Act of 1871 did not properly apply to their unlawful acts of trespass and obstruction.

Abortion Smear


Friday, August 12, 2005; Page A18

IN GENERAL, discussion of the nomination of Judge John G. Roberts Jr. to the Supreme Court has taken place on a civilized level. Democratic senators, by and large, have appropriately reserved judgment; disputes over documents, while pointed, have been polite. The ad released this week by NARAL Pro-Choice America is a distressing exception. Seizing on his role in a 1993 Supreme Court decision as a lawyer for the government, it graphically -- and wholly unfairly -- seeks to tar Judge Roberts with being an apologist for abortion clinic bombings.

In releasing the ad, Nancy Keenan, NARAL's president, said in a statement that she wanted "to be very clear that we are not suggesting Mr. Roberts condones or supports clinic violence." That's funny, because the ad does precisely that. It opens with the scene of a bombed clinic -- a clinic attacked years after the case in question -- and then shows a victim of the bombing. An announcer intones that "Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber." It closes with the announcer telling viewers that "America can't afford a justice whose ideology leads him to excuse violence against other Americans." A reasonable viewer can only conclude that Judge Roberts -- who served as deputy solicitor general in the administration of George H.W. Bush -- had somehow justified or defended a clinic bombing.


What really happened? The solicitor general's office filed a friend-of-the-court brief in 1991 in a case dealing with whether federal courts could use an 1871 civil rights law to prevent physical blockades of clinics by antiabortion protesters. One of the named defendants had earlier been convicted in connection with clinic bombings, but that was not the subject of the case. The administration's stance in the case and others like it was, while aggressive and controversial, not extreme or legally untenable. Indeed, it prevailed at the Supreme Court on a 6-to-3 vote. In no sense did the brief defend clinic violence, much less bombings. Indeed, Judge Roberts began his oral argument by describing the conduct of the protesters as "tortious" and emphasizing that it was illegal under state law. The question in the case was whether federal law at that time provided additional grounds for legal action. Arguing that it did not is not the same as excusing clinic bombings.

NARAL is certainly within its rights to disagree with the position the government took in the case. But the impression it creates with this ad is not an argument but a smear-- a smear that will do less to discredit Judge Roberts than it will the organization that created it.

And on abortion, Roberts suggested tempering remarks President Reagan was planning on giving to an abortion rights group in November 1985. A speech written for Reagan by the White House was to include the line that Roe v. Wade, the Supreme Court ruling legalizing abortion, "made void all our laws protecting the lives of infants developing in their mothers' wombs."

Roberts suggested changing the phrase "all our laws" to "many of our laws," pointing it was "legally inaccurate." He noted the Roe decision allowed some regulation of abortion, particular in the late term of pregnancy.

August 12, 2005 latimes.com : Print Edition : Editorials, Op-Ed Print E-mail story Most E-mailed

Jonathan Chait:
Blindly battling over Roberts
I'M HAVING a hard time figuring out who's less rational: the liberal activists campaigning to defeat John Roberts' Supreme Court nomination, or the conservative activists campaigning to support it.

Roberts, of course, is President Bush's widely hailed surprise pick to replace retiring Justice Sandra Day O'Connor. Roberts has won praise from moderate liberal legal analysts such as Cass Sunstein of the University of Chicago and my New Republic colleague Jeffrey Rosen.

Roberts is widely regarded as extremely intelligent. Unlike conservative ideologues such as Antonin Scalia or Clarence Thomas, he prefers not to rewrite legal doctrine with sweeping new decisions. He is not the sort of nominee who you'd think should start a culture war.

Unfortunately, somebody forgot to tell that to NARAL Pro-Choice America, which has launched a new television ad assailing Roberts. The ad itself is highly misleading. It berates Roberts for arguing, during his tenure in George H.W. Bush's Justice Department, that the 1871 Ku Klux Klan Act could not be used to stop antiabortion protesters. NARAL's ad interprets this argument to mean that Roberts would be "a justice whose ideology leads him to excuse violence against other Americans."

But that conclusion is absurd. First, Roberts was acting as an advocate for the administration, not necessarily voicing his own views.

Second, Roberts was not excusing violence. He was merely arguing that a particular law did not apply in this instance. He explicitly wrote of the antiabortion protesters: "No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals."

And strategically, the idea of trying to sink Roberts' nomination is utterly harebrained. As Senate Democrats have admitted, Roberts is going to pass, probably by an overwhelming margin. Even if there was some chance that a freak slip-up could sink his nomination, Bush would simply find another nominee who would probably be even more conservative.

I can't think of any rationale for NARAL's campaign except that the group raised a whole bunch of money for a big Supreme Court fight, so, by gum, it's going to have one.

The battle lines on the Roberts' nomination had already hardened before this newspaper reported last week that Roberts had done pro bono work on behalf of gay-rights groups in Romer vs. Evans, a 1996 case establishing protections for homosexuals against state discrimination. Unlike Roberts' work for the Bush administration or in private practice, in which his role is to advocate his client's view, pro bono work really does tell you something about Roberts' personal beliefs. And given the fact that gay rights is a major new frontier in the legal and cultural wars, conservatives ought to be highly alarmed.



DESPITE ALL THIS, conservative groups such as James Dobson's Focus on the Family continue to staunchly back Roberts. It's hard to convey just how weird that is, given the radicalism of Dobson's views on social issues in general and gay rights in particular.

How far out is Dobson? He disseminated a guide in one of his 2002 newsletters on how a father can prevent his son from turning gay. The advice included roughhousing with him, teaching him to throw and catch, showing him how "to pound a square wooden peg into a square hole in a pegboard" (No, I didn't understand that one either), capped off with this: "He can even take his son with him into the shower, where the boy cannot help but notice that Dad has a penis, just like his, only bigger."

The point here is that Dobson is not merely conservative, he's certifiable. And, needless to say, he's not a big fan of Romer vs. Evans. Yet now Dobson is working to put one of the lawyers who gave his time to the gay-rights cause — for free! — on the Supreme Court.

To be sure, Roberts is probably a bit to the right of O'Connor. But Bush could easily have appointed a justice who's more than a bit to the right of O'Connor. Wing nuts such as William Pryor and Janice Rogers Brown had already won majority support for lower positions, and Bush could have gotten them on the high court with minimal effort. But Bush reserves his political capital for unpopular right-wing economic policies. He almost never expends it on social issues. Why should he, when pliant social conservatives will flock to the polls for the GOP regardless?

A Washington Post reporter once called religious conservatives "disproportionately poor, uneducated, and easy to command," a line for which he has since apologized and which has been cited endlessly as an example of the media's anti-religious bias.

I'm not sure about poor and uneducated, but the "easy to command" part seems pretty dead on.

At this point, if it were revealed that John Roberts was a member of the North American Man-Boy Love Association, liberal legal interest groups would probably still denounce him as an "ultraconservative" while conservative legal interest groups would say the NAMBLA story was just a "red herring meant to divide the right." These lobbies want to have a fight and they know the grounds they want to fight on. Don't distract them with quirks!

the rapid sequence of events left Mr. Bush back where many in Washington had expected him to be at the end of the court's last session in June: having swapped one reliable conservative for another in the chief justice's seat and facing a much more intense battle to replace Justice O'Connor, a swing vote on abortion and many of the other most contentious issues.

John Roberts is putting on a clinic.

He completely understands that he needs only to sit very quietly, head cocked to signal listening-ness, while senator after senator offers long discursive rambling speeches. Only when he's perfectly certain that a question has been asked does he offer a reply; usually cogent and spare. Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

It's increasingly clear that Senate Democrats are giving up. They are taking a cue from the petulant Joe Biden, who telegraphs exactly who these hearings are really for when he refuses to let the nominee answer any of his questions. When Sen. Arlen Specter growls at Biden to let Roberts finish just one answer, Biden growls back: "I don't have much time." Later when Biden complains of Roberts, "But he's filibustering!" it's without any sense of irony. How dare this man use our own childish games against us?

Whereas Biden and Patrick Leahy made at least some effort to develop lines of questioning, Herb Kohl and Dianne Feinstein give up entirely. Knowing there will be no Perry Mason moment—there won't even be a Lionel Hutz moment—they dully read their questions from a script and avoid the follow-up altogether. "Oh, so you aren't opposed to environmental protection? OK. Let's move on." The hunters have become the hunted. The lion is draped across a chaise longue, picking his teeth with their arguments.

But let me ask you this about judges in general. You sit on a court, correct?

ROBERTS: Yes.

SCHUMER: OK. And sometimes you dissent. And that's routine, not just for you but for every judge.

ROBERTS: It's rare on our court, I'm happy to say.

SCHUMER: Yes, it is. It is. That is true. I've noticed that. But it happens in courts all the time.

OK. And in doing so, the dissenting judge is criticizing the majority opinion, right? Disagreeing with it? And I take it this happens on the Supreme Court quite often? And, in fact, there aren't that many unanimous Supreme Court cases on major cases these days.

ROBERTS: Actually, one point that statistics always show that more cases were unanimous than anything else.

SCHUMER: But there are a lot of dissenting...

ROBERTS: There are a lot.

SCHUMER: And every justice on the Supreme Court has dissented in many cases; meaning they disagreed with the opinion of the court, right? And nothing is wrong with that? There is nothing improper, nothing unethical?

Let's go to commentators. Non-judges are free to criticize and disagree with Supreme Court cases. Correct?

ROBERTS: Yes.

SCHUMER: In speeches, law review articles, it's a healthy process, wouldn't you say?

ROBERTS: I agree with that. Yes.

SCHUMER: And you did this occasionally when you were in private practice?

ROBERTS: Yes.

SCHUMER: OK. Nothing unseemingly about that?

ROBERTS: No.

SCHUMER: OK. And how about lawyers representing clients? Lawyers representing clients criticize cases and legal briefs all the time. That's what they do for a living.

And that's part of being a good lawyer.

And you signed your name to briefs explicitly criticizing and disagreeing with Supreme Court decisions?

ROBERTS: On occasion, yes.

SCHUMER: In Rust v. Sullivan, for example, your brief said that, quote, "Roe was wrongly decided and should be overturned," unquote. Right?

ROBERTS: Yes.

SCHUMER: OK. But in this hearing room, you don't want to criticize or disagree with any decided cases? That seems strange to me. It seems strange, I think, to the American people that you can't talk about decided cases -- past cases, not future cases -- when you've been nominated to the most important job in the federal judiciary.

You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you worked in private practice, you could do it when you gave speeches and lectures; as a sitting judge, you've done it until very recently. You could probably do it before you just walked into this hearing room.

And if you're confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room -- when it is more important than at any other time that the American people, and we the senators, understand your views.

Why this room should be some kind of a cone of silence is beyond me. The door outside this room doesn't say, "check your views at the door."

There was no reason for him to choose anyone but one of these outstanding conservatives. As for the diversity argument, it just seems incredible to imagine that anybody would have criticized this president of all people for his lack of devotion to that doctrine. He has appointed minorities and women to the highest offices in the land, relied on women as his closest advisers, and staffed his administration through and through with Americans of every race, sex, faith, and national origin. He had nothing to apologize for on that score. So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?

I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or - and more importantly - that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.

I am not saying that she is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have no good reason to believe either of these things. In other words, we are being asked by this president to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant.

There have just been too many instances of seeming conservatives being sent to the high court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president, especially one backed by a 55-seat Senate majority, to take a hazard on anything other than a known quantity.

But here is what we do know: the pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements - the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard - that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is impossible to me to imagine that she can endure the anger and abuse - or resist the blandishments - that transformed, say, Anthony Kennedy into the judge he is today.

Nor is it safe for the president's conservative supporters to defer to the president's judgment and say, "Well, he must know best." The record shows I fear that the president's judgment has always been at its worst on personnel matters.

Conservatives have expressed unhappiness with the nomination of Julie Myers for the top immigration enforcement slot, but there are dozens and maybe hundreds of similarly troubling choices, from the cabinet on down.

Again and again, George Bush has announced bold visionary policies - and again and again he has entrusted the execution of those policies to people who do not believe in them or even understand them. This is most conspicuously true in foreign policy, but it has been true in domestic policy as well. The result: the voice is the voice of Reagan, but too often the hands are the hands of George HW Bush.

Or worse. George HW Bush made his bad appointments in the name of replacing Reaganite "ideology" with moderate Republican "competence." He didn't live up to his own billing, but you can understand his intentions. But the younger Bush has based his personnel decisions upon a network of personal connections in which competence plays no very large part.

The consequences As Stephen Spruiell makes clear in an important article in the current print NR, the Bush administration had committed itself to valuable reforms in the Army Corps of Engineers, reforms that concentrated resources where they were most needed and fought back against Congress' habit of using the Corps for pork-barrelling purposes. That excellent policy allowed administration critics to accuse the president of "cutbacks." It was predictable that such accusations would be made, and because it was predictable, it was therefore essential that the administration prove itself committed to the nation's flood safety by, for example, appointing only the very most visibly capable people to serve at FEMA. The Michael Brown appointment may in the end not prove very much responsible for the damage done to New Orleans. But it sure has wrecked the president's reform agenda at the Corps of Engineers.