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« The Miers Confirmation Hearings: Ten Possible Strategies | Main | A Win-Win-Win-Win Situation? »

October 29, 2005

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» Blog Round-Up - Saturday, October 29th from SCOTUSblog
On Judge Alito as a potential court nominee: Here is the Volokh Conspiracy. Here is Underneath Their Robes. Here is Sentencing Law & Policy. On other potential nominees: Here is Prawfsblawg asking whether Judge McConnell can "hate" Bush v. Gore.... [Read More]

» More Alito from New World Man - he's got a roadmap of Jupiter
My posts below evaluate some of the First Amendment jurisprudence of Judge Alito. Prof. Larry Ribstein has a review of Alito's major business law work, concluding that "Alito has displayed a marked tendency to enforce contracts as written, specifically... [Read More]

Comments

Polybius

John Roberts refused to hire JM Luttig!

Okay not really, but it's still pretty funny:

A few years ago, [Luttig] "applied" for a first-year associate's job at Hogan & Hartson, which, he suspected, would pay more than the salary of a federal appeals judge. Responding in kind, Hogan partner John Roberts Jr. turned Luttig down, informing him that first-year associates normally lack life tenure, are not assigned a battery of law clerks to assist them, and don't wear black robes -- even on casual Fridays.

Article III Groupie

Thanks for the correction, P! I've updated my post accordingly (see footnote **).

P

Clement wasn't on vacation on the day of Roberts's nomination announcement. I saw her walking out of the 5th Circuit courthouse w/her clerks in tow that day heading out to lunch.

I think it'll be Alito. They're drawing attention to Alito in order to draw attention away from Alito. A feint within a feint...

DB

Disparaging UVA because it's a "state school" is a joke. It's a fantastic school that outranks almost every private school. (Incidentally, UVA no longer takes a dime from the state of VA so it's really not a "state school" anymore).

I don't care if there were a few quirks with how he got his clerkships. If Luttig has any problems, it's NOT going to be because of his resume. If he was such a disaster for Chief Justice Burger in 1983-84, do you really think he would have been retained the next year to be his special assistant.

KOB

... there will be unexpected joy in ALL conservative corners Monday, I promise you... extremely conservative female judge no one is suspecting coming from Card/Bush/Miers weekend talks will shock the nation

RH

The issue is not whether Luttig, if confirmed, would be a good justice. The issue is the kind of debate you have on the way to a confirmation, and how that affects Bush politically.

Appoint Alito, and the debate is about ideology. Appoint Luttig, and the debate involves talking about credentials, cronyism and ethics.

Bush does not need another debate about cronyism and credentials. He needs a debate on ideology. Because the debate on Luttig can get sidetracked, his nomination will not meet Bush\\\'s own political needs from a nomination.

As for the ethics rumor, yes, it is unproven, but it is a recurrent rumor from people close to the scene. Do you think the Bush administration wants to roll the dice on whether marked up documents will surface mid-process? In the wake of Scooter Libby\\\'s indictment, do you think Bush really wants to be arguing that violating the Court\\\'s own ethical rules should be accepted as business as usual? Given the closeness of a Luttig confirmation in any event, do you seriously think the Democrats are going to let an ethical issue involving the Court\\\'s own rules to go away if any proof at all comes out?

Alito brings everything to the table politically that Luttig would bring, plus experience as a prosecutor, without the problems. Bet on Alito.

NCC


I strongly opposed the Miers nomination, in large part because of the obvious cronyism.

RH's criticisms in this regard are inapt. The type of cronyism Hamilton and Story warned about (and the kind LBJ tried to get away with when he appointed Fortas, and Bush tried to get away with when he appointed Miers) involves the decisionmaker -- and most importantly the President -- appointing his friends, especially to such important positions as the Supreme Court.

There is much less concern with what career moves of years ago which did not concern the President, especially after years of excellence at the appellate court level.

I am curious, however, as to how RH would apply his (or her) standard to other Justices. Justice O'Connor owed her nomination in no small part by the support of Senator DeConcini. Justice Souter owed his in even larger support because of his prior association with John Sununu and Senator Rudman.

Even more apt, Justice Breyer owed his appellate court position (a key to his later Supreme Court nomination) to his association with Democrats on the Senate Judiciary Committee when he worked for them, and -- ironically -- to Senator Hatch for persuading other Republicans to confirm him even after Reagan won the 1980 election.

Are these 3 judgeships tainted?

Major Harris

I'm amused by RH's negative reference to Virginia Law as a "state school." It's one of the five best law schools in America. It's enough to cast serious doubt about the rest of what this guy writes.

FM

You're on the right path AIIIG, but the pick is going to be Karen Williams. I don't know if you heard it here first, but you heard it at least . . .

This is silly. Luttig would be an incredible SCOTUS nominee. Let's not nit-picking every name that comes up. This is part of what led to Miers nomination in the first place.

All of the "arguments" against Luttig are weak at best. (1) To suggest that Luttig's qualifications and intellect are anything other than stellar is a laughable agrument. His eventual testimony in committee hearings and the multitudes of personal endorsements vouching for him and his performance over the past few decades will obliterate this charge. A Dem attack along these lines would be suiside. (2) Cronyism and "connections" are not the same thing. The term is misused in the post by "RH". Plus this charge simply wouldn't stick. See qualifications and intellect in #1 above. (3) The ethics charge is the only argument with potential merit, but it is unsubstantiated at this point. Also, the public tends to be quite forgiving of one's past if their recent history is admirable. (See George W. Bush's historical drug issue and his support from the "religious" communities in 2000 and 2004.)

If Luttig is the nominee. I am one very happy person.

Richard

It's very simple. Luttig is on the filibuster list; Alito is not. Bush has enough troubles. Of the two, he will pick Alito.

Anticipated moral of this story: If you don't get a Supreme Court clerkship, do what Alito did. Work for the Solicitor General. A3G, beat the rush, and send in your resume today.

RH

The first problem with Luttig is that he is no Roberts. The second problem with Luttig is that the Miers episode highlights the weaknesses in his resume, giving the Democrats lines of attack not related to ideology, and, indeed, so recently used by the movement conservatives themselves.

If you dig into Luttig\'s record, you do not find early in his career the kind of academic and intellectual excellence that we saw in Roberts. You find instead someone who did only moderately well in college, and failed in law school to rank above the middle of his class. While Virginia does not release exact class rank, anyone can verify that Luttig was not on law review, to which top students at Virginia were automatically assigned in his era, and a check of his classmates will verify that he was deep in the middle of his class.

Normally, this might not matter, but after all the emphasis on academic intellectual credentials with the Miers appointment, with the entire beltway concerned that her law school was not top rank, a mediocre academic record, even at a good school, has become a fair issue for debate.

Then there cronyism. Luttig did get a clerkship on the DC Circuit, followed by one on the Supreme Court. Since students from the middle of their class at state law schools don\'t usually get those kind of clerkships, you might wonder how Luttig did. In the case of his circuit clerkship with Scalia, the clerkship was arranged during the very same interview in which Luttig was interviewing Professor Scalia for a possible opening on the DC Circuit. Luttig\'s job at the time was vetting potential nominees for ideological correctness on behalf of the Reagan administration. There is nothing illegal about trading a judgeship for a clerkship, and the truth may be closer to the two immediately hitting it off with no quid pro quo involved, but something about it does not quite pass the smell test. In Nigeria or Zimbabwe, government officials walk out of official interviews with something they covet, but that normally does not happen here.

For his Supreme Court clerkship, Luttig went to Chief Justice Burger, for whom he had previously worked as a staff assistant, and with whom he had a near father-son relationship. Even though no other Justices interviewed him, and even though Burger\'s screening committee of former clerks recommended against Luttig, the personal ties prevailed. Again, there is nothing inherently improper in this, but in the wake of Miers, cronyism is a fair issue.

Next, never having made partner in any law firm (much less managing partner), never having tried a case, never having argued an appeal himself, and hever having written any law review articles, Luttig received a nomination for the Fourth Circuit Court of Appeals at a remarkably early age, getting picked over better qualified candidates. His edge, like Miers, was that he had worked in the administration with the very people who selected judges, who moved their friend, or crony if you prefer that word, to the head of the list. After Miers, the cronyism issue has been validated by the very same folks who would like to see Luttig on the Court. If cronyism is fatal at the time you get picked for the Supreme Court, surely cronyism at the time of your last promotion is at least worth some discussion.

Then there are the rumors that he commented on Supreme Court briefs immediately after leaving Burger\'s employment, in violation of a strict and clear Supreme Court rule. If true, and if someone shows up with documentary evidence carefully filed away many years ago, Luttig cannot realistically be confirmed to a Court whose own ethical rules he ignored.

So, while Alito might not be the ultimate pick, it also is not likely to be Luttig. He is too fat a target for the Democrats in the wake of Miers. The President needs an ideological debate, and not another debate about mediocrity, cronyism or suspect ethics.

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