The guess I made yesterday as to who would be the next Supreme Court Justice nominee was 10th Circuit Court of Appeals Judge, and highly respected law professor, Michael McConnell. My guess of McConnell was based on three factors:
-1- McConnell is unquestionably qualified, and unquestionably conservative...but he is so well-respected (and so well qualified) that when he was nominated for the 10th Circuit, a large number of liberal law professors signed a letter urging Democrats in the Senate to approve of his nomination. That was simply do to their respect for him;
-2- McConnell is on the record (in various law review artilcles, interviews, and other public statements) as absolutely anti-Roe. There is no question about his (very public) stance on Roe, which will mollify enough of the right-wing to have him pass their gauntlet;
-3- McConnell is (at least somewhat) on the record for stare decises - and therefore it is not 100% certain that he would vote to directly overturn Casey/Roe. When you combine this uncertainty with the respect he commands from academia, and his clear (on their face - no "trust me" needed) qualifications, this will appease Senate Democrats and moderate Republicans to support him.
He would be the perfect candidate to follow Miers, because he is essentially opposite everything she was (where she was unqualified, had no overt stance on Roe, but was expected to vote the way the President told her to; he is imminently qualified, has a clear and public stance on Roe, but there is some uncertainty to how he would vote on the matter).
This morning, however, the rumors seem to be going in a different direction...it seems that much word of mouth is focusing upon 3d Circuit Court of Appeals Judge Samuel Alito. Judge Alito is called in some circles "ScAlito" due to his fierce brand of conservatism which is very similar to Justice Antonin Scalia. He is well qualified, well respected, and has clear conservative bona fides - which would appeal to the radical right-wing base.
Here is a Supreme Court shortlist that Slate published last summer, which includes both McConnell and Alito. Following is each judge's Slate profile:
Graduated from: University of Chicago Law School.
He clerked for: Judge Skelly Wright, Justice William Brennan.
He used to be: a law professor at the University of Chicago and the University of Utah, an appellate attorney for Mayer Brown.
He's now: a judge on the U.S. Court of Appeals for the 10th Circuit (appointed 2002).
His confirmation battle: When McConnell was nominated to the 10th Circuit three years ago, he had the support of liberal law professors who called him Bush's "most distinguished" nominee and signed a letter of support for him. Other liberal groups, on the other hand, fought hard against his confirmation, highlighting his support for expanding the role of religion in the public sphere. How to account for the split? As a respected and well-liked law professor, McConnell was well-placed to win support in the academy, and one of the arguments made on his behalf was that, as an advocate of judicial restraint, he'd be sure to follow the Supreme Court's directives. McConnell wouldn't be similarly bound by precedent, however, if he joined the high court himself. Instead, the combination of his hard-line conservative views and his sunny disposition could make him extremely effective at bringing about change.
Civil Rights and Liberties
In a law review article, argued that the support for school desegregation in Brown v. Board of Education is consistent with the intentions of the framers of the 14th Amendment to guarantee equal protection under the law. McConnell's remains the minority view.
In a Slate dialogue, opposed a constitutional right to assisted suicide.
Before the Supreme Court, represented the Boy Scouts in their successful suit to keep out gay scoutmasters. (Boys Scouts of America v. Dale, 2000)
On the bench, dissented from a ruling in favor of Jessica Gonzales, who sued the city of Castle Rock, Colo., when her three children were killed by her ex-husband after the police failed to enforce a restraining order against him, despite her repeated calls. McConnell said that the majority's ruling would "expand greatly the liability of state and local governments." A Supreme Court ruling is pending in this case. (Gonzales v. City of Castle Rock, 2004) [Blake's Update: the Supreme Court reversed the 10 Circuit, siding with McConnell.]
Separation of Church and State
In a law review article, argued that the framers intended to provide for broader protections for religiously motivated conduct than modern jurisprudence allows for.
In a law review article, questioned the outcome of Bob Jones University v. United States, the 1983 Supreme Court decision that revoked the school's tax-exempt status because it forbade interracial dating. McConnell argued that even if Bob Jones' policy is "morally repugnant to most of us" the rule affected "only those who choose to become part of the religious community defined by Bob Jones" and so should come under the constitution's protections of freedom of speech and freedom of religion.
In a Slate dialogue, backed government-funded school vouchers that can be used at parochial schools. Argued that religious activity in a public setting or paid for by public funds is OK, as long as the government remains neutral rather than supporting a particular faith.
Agreed to grant a preliminary injunction to a New Mexico sect to stop the government from prosecuting its members for using a hallucinogenic tea during worship. In a concurrence, McConnell argued that the sect's interest in religious observance trumped the health risk to the sect's members and the interests of the federal government in enforcing its drug laws. (O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 2003)
Environmental Protection and Property Rights
For a unanimous panel, upheld a law that Congress passed specifically to permit logging in the Black Hills National Forest in South Dakota. The law upended a court settlement designed to prevent the logging from going forward. (Biodiversity Associates v. Cables, 2004)
For a unanimous panel, held that the federal prosecution of a child pornographer—who paid a boy to photograph him and transported him across states lines—was consistent with Congress' power to regulate interstate commerce. (U.S. v. Riccardi, 2005)
In 1996, signed a statement supporting a constitutional amendment to ban abortion. "We believe that the abortion license is a critical factor in America's virtue-deficit," the statement reads.
Before Congress, testified in opposition to a bill designed to limit the access of protesters to abortion clinics.
Supports the originalist approach to constitutional analysis, which urges judges to interpret the Constitution in accordance with the understandings of its framers.
Graduated from: Yale Law School.
He clerked for: Judge Leonard Garth.
He used to be: deputy assistant attorney general under Reagan, U.S. Attorney for the District of New Jersey.
He's now: a judge on the U.S. Court of Appeals for the 3rd Circuit (appointed 1990).
His confirmation battle: Alito has the Scalia-esque nickname "Little Nino" and the Italian background to match it. As the author of a widely noted dissent urging his court to uphold restrictions on abortion that the Supreme Court then struck down, in a decision that reaffirmed Roe v. Wade, Alito could be especially filibuster-prone. Like Scalia, he frequently makes his mark in dissent.
Separation of Church and State
For a unanimous panel, upheld a lower-court order requiring a school district to allow a Bible-study group to set up an information table at an elementary-school back-to-school night. Reasoned that by preventing the group from displaying its literature, the district was discriminating on the basis of viewpoint. (Child Evangelism Fellowship of N.J., Inc. v. Stafford Township School District, 2004)
For a unanimous panel, denied standing to a group seeking to take down a municipal holiday display that included a menorah and a crèche. Alito said that the group couldn't challenge the display as taxpayers because the items were donated rather than bought by the town. (ACLU-NJ v. Township of Wall, 2001)
Dissented from a ruling by the 3rd Circuit as a whole that an elementary school did not violate the First Amendment rights of a kindergartener by taking down (and then putting back up) a Thanksgiving poster he'd made that said the thing he was most thankful for was Jesus. The majority decided to throw out the case on a technicality; Alito protested that the child's claim should go forward. (C.H. v. Oliva, 2000)
Allowed a federal probation office in Delaware to condition the release of a man who had pleaded guilty to receiving child pornography on his willingness to submit to random polygraph tests about whether he'd had impermissible contact with children. (United States v. Warren, 2003)
Dissented from a refusal to grant police officers immunity from a civil suit brought by a mother and her 10-year-old daughter who'd each been strip-searched because they lived in the home of a suspected drug dealer. Alito felt the police had behaved reasonably because the warrant led them to conclude that there was probable cause to search everyone in the house for drugs. (Doe v. Groody, 2004)
Granted the habeas claim of an African-American defendant who sought to introduce evidence that a juror made a racist remark after the jury reached its verdict. (Williams v. Price, 2003)
Dissented from a decision holding that Pennsylvania could not require women to inform their husbands before getting abortions. Alito argued that because the law only required the husbands to have notice and did not give them a veto over their wives' decisions, it did not pose an "undue burden" for women. This approach was rejected by the Supreme Court. (Planned Parenthood v. Casey, 1991)
Agreed that an immigration judge was within his discretion to find not credible an application for asylum based on China's forced-abortion policy. (Xue-Jie Chen v. Ashcroft, 2004)