Tuesday, February 22, 2005

The New Man on Court

Orin Kerr links to this NYT article about Bush's plans for Chief Justice Rehnquist's inevitable retirement. The article specifically notes four judges, Michael W. McConnell, John G. Roberts, J. Harvie Wilkinson III, and J. Michael Luttig, as on the "short list" for the spot, and mentions Samuel A. Alito as also in the running.

I must say, if accurate, this is very heartening news. When The New Republic's Jeffrey Rosen wrote on possible Bush picks for the Supreme Court. The four names on the short list are the four names Rosen picked as "principled" conservatives: certainly not short on conservative bona fides, but not engaged in so-called "Constitutional-in-exile" extremism either (Alito, alas, did fall in that radical category in the article).

From my very limited independent knowledge of these persons, I also will say I'm pleased. I've been reading McConnell's law review articles on the 1st amendment (specifically Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) and "God is Dead and We Have Killed Him!": Freedom of Religion in the Post-Modern Age, 1993 B.Y.U. L. Rev. 163) and have been tremendously impressed. It is clear to me that McConnell is an intellectual giant who could do great things on the Court, and his unabashed opposition to the decision in Employment Division of Oregon v. Smith, which essentially demolished the Free Exercise Clause of the 1st Amendment, is badly needed on the Court today.

I don't know anything about Roberts firsthand, although Kerr certainly speaks highly of his opinions. However, Georgetown Law Professor Richard Lazarus, who I have the pleasure of knowing through the Walt Whitman HS Debate Team, also has made known that he thinks Roberts is a brilliant jurist and fairminded individual. Their vouchers mean a lot to me. I have no problem with a Conservative taking Reinquist's spot, so long as he is a principled Conservative, and it appears that Roberts meets that standard handily.

Wilkinson and Luttig are both quite Conservative (though the latter is more so), but both are clearly excellent judges who know the law and apply it with principle. Neither would make the Court any worse off than it was with Rehnquist, and some of their opinions (especially Wilkinson's) have struck me as quite erudite and well-written.

My personal order of preference would be McConnell, Roberts, Wilkinson, then Luttig (Alito--known as "Little Scalia" or "Scalito"--is a separate issue entirely). However, this entire story is good news. My personal guess, prior to this, was that Bush was going to nominate Clarence Thomas to the Chief Justice position to draw away Democratic fire, then quietly push through a hyper-Conservative to the bench while nobody is looking (similar to what Reagan did with Reinquist and Scalia). Though I'm not counting that out quite yet, these nominees do a little to mitigate that fear.

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