Legalities

Jan,
Two observations and one question. The question - someone else has already asked this, but I think they did so before it was clear that there would even be one - is regarding the book tour, specifically, where and when? Is Indianapolis on the schedule, or does that depend on whether we destroy the Bears or just give 'em a brusing? ;)

Observations - regarding the next vacancy, I would have thought that Sykes or Callahan must surely be the frontrunners at this stage, if only for reasons of brute political reality. A Brown nomination would surely fail in this Senate, and an Owen nomination would seem to invite it. Sykes' confirmation hearings were more contentious than, say, Roberts' CA hearings, but less so than some others, and she would be my first choice (she will also apparently be speaking at the FedSoc gathering at Northwestern next month, for those considering attending). On the subject of Justice Ginsburg's putative loneliness on the bench, I had just commented on that at SCOTUSblog. Justice Ginsburg is hardly "all alone on the court," insofar as she has at least two (and often three) colleagues that she can rely on to agree with her in most instances. And while I don't know if there is a distinctively "female" point of view, I'm fairly certain that if it exists, and it's making a difference in how you're deciding cases, there's something wrong with how you're deciding cases. I am still not sure, for example, what difference a Judge's gender can make "to the question of whether the due process clause 'prohibit[s] Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong,' Clark v. Arizona, whether a dam 'raises [sufficient] potential for a discharge ... [that] §401 [of the Clean Water Act] is triggered and [thus] state certification is required,' S.D. Warren Co. v. Maine Bd. of Environmental Protection, ... [or] whether '[a] refusal to apply the Federal Tort Claims Act’s judgment bar is open to collateral appeal,' Will v. Hallock.

Just finished "Supreme Conflict" yesterday; thank you for your efforts in preparing this well-researched and insightful book. It provides many of the inside details and nuances that those of us interested in the Court have craved for the past 20 years; I only wish we could skip ahead to 2027 to read your definitive work on the history of the Roberts court!

To follow up on Simon's comments, I was surprised not to see any mention of Judge Callahan in "Supreme Conflict". Bob Novack reported while the Miers nomination was pending that Callahan had been the runner-up, and her name was being mentioned as the nominee (perhaps by John Fund, though I can't recall) on the weekend before Miers got the nod. Any insights on her, Jan?

Owen had a bit more support in the Senate. Her cloture vote was 81-18 whereas Brown's was 65-32.

good blog, really.

I too would like to hear your thoughts on Callahan. The vast majority of social conservatives are strongly against her but are fearful she will be nominated because she is a female hispanic who has the explicit support of Reid and Feinstein, and so she'll get confirmed.

Joe Namath the best Super Bowl QB ever? What year were you born? Try Joe Montana, Troy Aikmen, Terry Bradshaw and others. Namath was a one hit wonder. eg: Billy Ray Cyrus. Go Colts!

JCG - Bought the book on Thursday, and finished it, today. I found it to be a great read, superbly researched, and highly informative. Well done, and congratulations. (Can't say that I agree with one of your last assertions - that Justice Alito was the Conservative equivalent of Justice Ginsburg - but, that's ultimately a minor quibble.)

Quick question: you indicated in the book that Judge Owen and Judge Brown were not considered for Justice O'Connor's seat due to the tremendous fight in the Senate over appelate court nominees in 2005. I was honestly quite surprised to see that, now, they're apparently on The Shortlist for a possible SCotUS vacancy, and had expected more "off the radar" picks like Judge K. Williams or Judge D. Sykes to be leading the pack, particularly given the new Democratic majority in Congress. What changed in the administration's thinking to put them genuinely in the running?

Was it the exodus of WH Counsel Harriet Miers and the entrance of a more-committed official? The dissolution of the Gang of 14 agreement, and with it the ties that bind? The more public role of SC nominations over AC hearings, and the possiblity of greater public support for the nominee (especially given JRB's life-story)? Does the President want to go-out with a bang, or (more likely, perhaps), does he want to keep his word with the American people, and appoint justices in the motiff of Thomas and Scalia?

Thanks again for your insights and reporting. You're a blessing to the field of court-watching kremlinologists.

Do you have a schedule of book signings? Searched the web. Penguin isn't doing its job of PR

Would you mind expanding on the tantalizing line in your book that refers to Sykes? It seems that that line was either an allusion to her replacing JPS or a polite way of saying she was being considered.

Finally, some Alabama football tie-ins in the blog. While the reference to Joe Willie as the best SB QB ever is suspect, I like the fact that you aren't afraid to adore the QB of the arch rival of your Husband's Bears and have forgiven Favre for beating the Tide. What are your thoughts on Jon Gruden?

No really, when is JPS retiring? We won't tell anyone. Promise.

Jan, great book! I'm just sorry to know you root for Nick Satan and the Alabama Crimson Tide. Nick Satan is the only coach in football with less credibility than my school's former coach, Bob Petrino. I hope you don't hold the 1991 Fiesta Bowl against me.

On a more serious note, you broke my heart when you mentioned that Bush won't get another pick. That's the only reason left for the Bush presidency. Also, do you think Miguel Estrada could ever be persuaded to accept a Supreme Court nomination if one became available?

Now I've read "Supreme Conflict". Great stuff. Thank you for writing it. Everybody with an interest in this subject matter should do themselves a big favor and get it.

I didn't read any mention of Consuelo (Connie) Callahan (Female 9th Circuit COA judge)in the book, which surprised me. So, again, I'd sure be interested in your thoughts about her. Bush put her on the 9th Circuit (West Coast). She's female and hispanic and she's supported by liberal California Democratic senators Boxer and Feinstein as well as by Majority Leader Reid, who according to published reports put her on his short list of "good nominees" that he gave Bush during the lead up to the Alito nomination. So all that means she would be confirmed, which is why many social conservatives worry she will be nominated for the next vacancy.

Social conservatives are strongly against her. If Boxer, Feinstein and Reid are for her, how could social conservatives be anything but against her? Social conservatives see her as another O'Connor, (So do Boxer, Feinstein and Reid), and if she is nominated to the next Supreme Court opening, many social conservatives likely will be so irate that they will sit out the next presidential election -- especially since the main reason many of them voted for Bush in the first place was precisely to not have another O'Connor put on the Supreme Court.

On the bright side, social conservatives will be pleased to read in your book that the White House lawyers had determined that Maureen Mahoney was not the kind of judicial conservative that Bush was looking for. (That's roughly your words from the book.) Social conservatives now must hope that same thinking continues, even with the Democratic majority in the Senate. (Even though she, like you, is from the Universtiy of Chicago Law School). (Don't forget Justice Stevens also taught at the University of Chicago Law School, so you can grab something from that.)

Social conservatives aren't so much concerned about nominees like Callahan and Mahoney turning into Souters (which is extreme); social conservatives are more worried they'd turn into O'Connors (which though not as extreme as Souter, is still bad and is completely unacceptable to social conservatives.)

In your book, you made a reference to Edith Clement and Karen Williams as being lesser judicial lights than Roberts and Alito, mainly because of their credentials which do not match the credentials of Roberts or Alito. That same statement probably would apply equally to the three other possible female nominees you talk about in your book as having the best chance to get picked: Owen, Brown and Sykes. That seems to focus on a basic conundrum Bush will face with his next pick. Does he pick a woman who either will be not the kind of judicial conservative Bush is looking for (like Mahoney) or who will be a lesser judicial light in terms of credentials (like Owen, Brown or Sykes)? Or does he pick a male who is the kind of judicial conservative Bush is looking for and also is highly credentialed on the level of Roberts and Alito (someone like Solicitor General Paul Clement who was the Supreme Court editor on the Harvard Law Review). It's a tough choice.

My own guess is that the next nominee will be Diane Sykes. My thinking is "first things first". She's a female and she is the kind of judicial conservative Bush wants. Also she likely will be more confirmable than either Owen or Brown; both of those two were filibustered when nominated to the Court of Appeals but Sykes was not. Sykes' lesser judicial light (in terms of credentials) will be secondary to her solidity in meeting these other criteria (female, the right kind of conservative, confirmable). Just my guess.

Thanks again for all the effort (and talent) you put into writing the book.

I don't need gender diversity, I need a judge that will hold against cases like KELO that will allow cities to seize our homes for eminent domain!

I have a feeling that both gender and racial diversity would not be so important if Janice Rogers Brown were nominated.

I don't see anyone taking up the quiz challenge, so I'll simply guess you don't have a mounted head that sings "Sweet Home Alabama". If you'd like to hear it let me know and I'll stumble through it for you. Do they really love the Gov in Birmingham?

Hey, how come my name is Greg but it's posting me as Brian? Anyway I'm saying #7 is wrong, even if I picked it for the wrong reason...