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Nomination Speculation II: Bush’s Second SCOTUS pick

Who’s Next

As the Senate prepares to ratify John (meet the new boss) Roberts to the position held by William (same as the old boss) Rehnquist, it’s time to start considering some of the candidates who might be nominated next.

Emilio Garza. Court of Appeals, 5th Circuit. Would be first Hispanic named to the Court, but only if Benjamin Cardozo (served 1932-1938) doesn’t count (hereafter “oiBCdc”). Has publicly criticized Roe v. Wade and would likely be filibustered.

The skinny: Republicans would love to see Democrats attack a highly qualified Hispanic.

Janice Rogers Brown. Court of Appeals, DC circuit. Only potential nominee more conservative than Clarence Thomas. Would be first black female on the Court.

The skinny: Has compared big government to slavery and the New Deal as the triumph of our “socialist revolution.” She’s so far right it’s possible the Democrats wouldn’t need to filibuster her.

Alberto Gonzalez. Attorney General. Would be first Hispanic named to the Court, “oiBCdc”. Purportedly pro-choice candidate could unify Republicans and Democrats the same way Kelo v. New London (New London took people’s homes to give them to private developers) did: substantial opposition by both.

The skinny: Democrats would have to consider whether they’d prefer a pro-torture official as head of the Department of Justice or 1/9th of the Supreme Court.

Frank Easterbrook. Court of Appeals, 7th Circuit. Leading disciple of the law and economics movement, would be favorite of economic conservatives upset by Kelo.

The skinny: Richard Posner, founder of law and economics, would deserve any law and economics seat, but the provocative Posner couldn’t be confirmed. Like Moses, Posner showed the way, but he doesn’t make it to the promised land.

Miguel Estrada. Private practice. Honduran born and raised immigrant graduated from Columbia and Harvard. Would be first Hispanic named to the Court, “oiBCdc”. Denied lower visibility seat on Court of Appeals by Democrats to keep themselves from having to block this highly qualified conservative Hispanic from the higher visibility Supreme Court.

The skinny: According to the Washington Post, Latino opponents to his Court of Appeals nomination thought him “insufficiently Hispanic.”

Michael McConnell. Court of Appeals, 10th Circuit. Former constitutional law scholar. Strong supporter of religion in public life. Conservative, independent thinker has criticized Roe v. Wade and Bush v. Gore.

The skinny: Probably the most conservative nominee who could be confirmed. Even liberal law profs would love to see one of their own make it to the big leagues.

Edith Jones. Court of Appeals, 5th Circuit. Voted to reinstate a death sentence because defendant hadn’t proved that his attorney slept through “critical” parts of his capital trial.

The skinny: Bush 41 chose Souter over her in 1990, and we know how 43 loves to fix daddy’s mistakes.

Priscilla Owen. Court of Appeals, 5th Circuit. Filibustered by Democrats until compromise over nuclear option allowed her to receive a vote.

The skinny: Democrats could call Alberto Gonzalez, who accused her of “unconscionable judicial activism” when they served together on a Texas Supreme Court abortion case, to testify against her. But since her vote denied the pro-choice claim, it’s the sort of judicial activism that Republicans love.

Edith Brown Clement. Court of Appeals, 4th Circuit. Stealth conservative who graduated Tulane (read: not Harvard, Yale, etc.). White House leaked her name as O’Connor’s replacement hours before actually naming Roberts.

The skinny: We won’t get fooled again!

Update: Another name has come forward in recent days as a potential nominee.

Harriet Miers. White House Counsel. Miers was the first woman President of the Texas Bar Association. She headed the search that selected John Roberts.

The skinny: Ideological unknown who contributed $1,000 to Al Gore’s presidential campaign in 1988. Will Bush’s base be satisfied?

– Lee Epstein and Jeffrey Segal
The authors of Advice and Consent: The Politics of Judicial Appointments, Epstein and Segal will answer your questions next week in our monthly “Ask the Authors” bookclub. Submit your questions via email or in the comments below. Five lucky correspondents will receive a free copy of the book!

Recent Comments

  1. lazerwolf

    Garza, Jones, and Clement are on the Fifth Circuit, not the Fourth. Luttig, who is actually on the Fourth, should be mentioned as a possible nominee.

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