1) Michael W. McConnell of the United States Court of Appeals for the 10th Circuit, 2) John G. Roberts of the United States Court of Appeals for the District of Columbia, 3) J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, and 4) J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit. Mentioned as "[a]nother possible candidate" is Samuel A. Alito of the United States Court of Appeals for the Third Circuit.Let's take this below the fold...
Michael McConnell, 49. U.S. Court of Appeals for the Tenth Circuit. McConnell is the most respected conservative legal scholar of his generation, and liberals and moderates throughout the legal academy would enthusiastically support his nomination. Liberal interest groups, unfortunately, would aggressively oppose it because he is personally pro-life and is also a vocal and effective critic of Roe. As usual, though, a single-minded focus on Roe would be misguided: McConnell has a deep respect for precedent. More than anyone else in the country, McConnell is responsible for persuading the Supreme Court to abandon the rigid church-state separationism that prevailed during the 1970s, arguing instead that the state should be neutral toward religion. As a result, he supports school vouchers, but, unlike Justices Scalia, Thomas, and Rehnquist, he argued that graduation prayers in public schools were unconstitutional even before the Court struck them down in 1992. On federalism, McConnell's record is especially encouraging. More than the other candidates on Bush's short list, McConnell believes that judges should defer to Congress's power to define illegal discrimination. His definitive studies of the original understanding of the Fourteenth Amendment have convinced him that its framers intended Congress, not the Court, to define and enforce protection of civil rights. As a result, McConnell has criticized conservative justices for holding that Congress may not define discrimination more expansively than the Court. In questions of economic rights, McConnell seems similarly concerned about judicial restraint: In a 1987 article titled "federalism: evaluating the founders design," he strongly criticized a leader of the Constitution in Exile movement, arguing that, whatever the initial intention of the interstate commerce clause, the dream of resurrecting long-forgotten limits on federal power is unrealistic: The "vision that the Supreme Court, having been informed of the founders' intentions now has in its power to restore the original constitutional scheme, is fanciful, and would not necessarily be desirable even if it were less so." For those who care about deference to Congress, McConnell's nomination would be especially welcome.As a counterpoint to all this gushing, Shakespeare's Sister thinks McConnell has shown "disregard, and in fact contempt, for key civil rights principles," though I'm not convinced here. We're not getting a liberal judge, remember—any Bush nominee is going to be repugnant in some way—and McConnell seems (tentatively) like an okay pick here.
John Roberts, 49. U.S. Court of Appeals for the Washington, D.C., Circuit. Top of his class at Harvard Law School and a former law clerk for Rehnquist, Roberts is one of the most impressive appellate lawyers around today. Liberal groups object to the fact that, in 1990, as a deputy solicitor general, Roberts signed a brief in a case involving abortion-financing that called, in a footnote, for Roe v. Wade to be overturned. But it would be absurd to Bork him for this: Overturning Roe was the Bush administration's position at the time, and Roberts, as an advocate, also represented liberal positions, arguing in favor of affirmative action, against broad protections for property rights, and on behalf of prisoners' rights. In little more than a year on the bench, he has won the respect of his liberal and conservative colleagues but has not had enough cases to develop a clear record on questions involving the Constitution in Exile. On the positive side, Roberts joined Judge Merrick Garland's opinion allowing a former employee to sue the Washington Metropolitan Area Transit Authority for disability discrimination. He pointedly declined to join the unsettling dissent of Judge David Sentelle, a partisan of the Constitution in Exile, who argued that Congress had no power to condition the receipt of federal transportation funds on the Metro's willingness to waive its immunity from lawsuits. In another case, however, Roberts joined Sentelle in questioning whether the Endangered Species Act is constitutional under Congress's power to regulate interstate commerce. The regulation in question prevented developers from building on private lands in order to protect a rare species of toad, and Roberts noted with deadpan wit that "the hapless toad ... for reasons of its own, lives its entire life in California," and therefore could not affect interstate commerce. Nevertheless, Roberts appears willing to draw sensible lines: He said that he might be willing to sustain the constitutionality of the Endangered Species Act on other grounds. All in all, an extremely able lawyer whose committed conservatism seems to be leavened by a judicious temperament.Eh, seems untested. Could be more radical than he's let on thus far. Not my first choice.
J. Harvie Wilkinson III, 60. U.S. Court of Appeals for the Fourth Circuit. The former chief judge of the Fourth Circuit clerked for Justice Lewis Powell, and this courtly conservative intellectual has long demonstrated Powell's sensitivity to judicial overreach. When he joined his colleagues in striking down part of the Violence Against Women Act as impossible to justify under Congress's power to regulate interstate commerce, he added a concurrence confessing his concerns about what he candidly called "conservative judicial activism": If the federalism revolution leads to the "wholesale invalidation of environmental, civil rights, and business regulation," he warned, then the new conservative judicial activists would be just as discredited as their liberal activist predecessors. The next year, Wilkinson showed his commitment to judicial restraint, upholding Congress's power to apply the Endangered Species Act to the protection of red wolves over Luttig's dissent. Wilkinson has written several important essays and scholarly articles trying to work out a principled conservative jurisprudence. In the most recent, he argues that the Court can best protect democracy by enforcing structural boundaries between Congress and the states and among the branches of the federal government, rather than by stringently upholding individual rights. Wilkinson also proved in the case of Yaser Hamdi, whom Bush designated an "enemy combatant," that he is willing to enforce judicial oversight of executive power--the central question in the war on terrorism. He has always insisted that the Court can bring the nation together by taking judicial restraint seriously, and his nomination could be a unifying gesture in a polarized time.Well, he's 11 years older than the other two, which is a plus. All in all, seems like a sensible figure—though I'd like to know more about how firmly he adheres to precedent. On federalism: I may be in the liberal minority here, but striking down the Violence Against Women Act (in United States v. Morrison) isn't an unforgiveable thing per se. (I'll explain this some other time—but the standards the Court was trying to construct limits on what counted as "economic activity" (without making it merely a matter of degree) seemed reasonable enough, even if I don't agree with them.)
Michael Luttig, 50. U.S. Court of Appeals for the Fourth Circuit. Conservatives view Luttig as a "conservative's conservative" because of his willingness to take federalism to its logical conclusion. In a closely watched case, he dissented from his colleague J. Harvie Wilkinson's decision to uphold the application of the Endangered Species Act to red wolves. (Luttig said that protecting red wolves isn't a commercial activity and therefore Congress has no power to regulate it; Wilkinson objected that Luttig's narrow vision of congressional power would "place in peril the entire federal regulatory scheme for wildlife and natural resource conservation.") Because of the red wolves case, liberals fear that Luttig would put the Constitution in Exile into overdrive. But Luttig's commitment to judicial principle is combined with a respect for judicial precedent: "At the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and at the pleasure of no one," Luttig wrote in 2001. In 1998, for example, Luttig wrote an opinion faithfully applying the Supreme Court's reversal of a ban on partial-birth abortions, a decision with which he personally disagreed. Luttig has also shown an open-minded willingness to infer new constitutional rights from old precedents: Disagreeing again with conservative colleagues, he held that there is a constitutional right for people who have been convicted of serious crimes to have access to DNA evidence that might prove their innocence. As a Supreme Court justice, of course, Luttig would be free to rewrite precedents rather than be bound by them. But, if analytical rigor and precedent-based reasoning remain as touchstones of his jurisprudence, he might prove to be an independent and impressive justice.Hm, kind of mixed on this, and I don't like Rosen's use of "might" at the end there. Shakespeare's Sister, who's also doing research, says that Luttig's one of the more aggressive conservatives out there. Barring further evidence, I'd say no to this one.