Article III Groupie just voiced her suspicion that President Bush has decided to nominate Judge J. Michael Luttig of the Fourth Circuit to the Supreme Court, passing over Judge Samuel A. Alito, Jr., of the Third Circuit. But in case no decision has been reached, A3G respectfully offers President Bush the following top 10 reasons to nominate Judge Alito over Judge Luttig:
10. As many astute observers have noted, Judge Alito would involve less of a confirmation fight than Judge Luttig. At this point in your presidency, with high-ranking administration officials under indictment or investigation, the last thing that you need is a protracted battle with the Senate.
9. The unfailingly gracious Judge Alito is much nicer than the sometimes abrasive Judge Luttig. Professor Orin Kerr, who knows Judge Alito -- they both clerked for Judge Leonard Garth -- describes Sam Alito as "one of the most likable people you'll ever meet. He comes off as modest, quiet, and very thoughtful, but he also has a sharp sense of humor." This congeniality would be an asset in winning over Senate Democrats (many of whom supported Judge Alito's confirmation to the Third Circuit).
In contrast, a UTR tipster has the following to say of Judge Luttig: "I've never heard [Luttig's] career put forward as evidence that nice guys finish first..."
8. "Alito" is easier to pronounce than "Luttig." (It's LOO-tig, not LUTT-ig.) Do you really want all the television commentators mangling your nominee's last name?
7. Judge Luttig is already close friends with Chief Justice Roberts and Justices Scalia and Thomas. If you appoint Judge Luttig to the Court, you will only exacerbate the serious problem of "lunchroom cliques" among the nine justices.* Two words, Mr. President: Mean Girls!
6. Making a Supreme Court justice out of Judge Samuel Alito, who never clerked for the Court, would send this positive message to those of us who never were Supreme Court clerks (a.k.a. "the Great Unwashed"): "So you didn't get that Supreme Court clerkship. Fine; life goes on. Just keep on plugging away, and there's hope for you yet. Someday you might actually SIT on the Court!"
Appointing Judge Michael Luttig, on the other hand, would send us this demoralizing message: "When you didn't get that Supreme Court clerkship, your legal career turned into one big dead-end -- before you even reached the age of 30. What's the point in going on? Surrender, Dorothy!!!"
5. Mike Luttig would be another white-male-from-within-the-Beltway -- exactly like your last SCOTUS appointment, Chief Justice John G. Roberts. To be sure, as white males, neither Alito nor Luttig would do much to help "diversity" on the Court. But at least Sam Alito comes from outside the D.C. metro area! (Also, Judge Alito surely deserves some reward for spending the last 15 years of his career in lovely Newark, New Jersey.)
4. On a related note, Judge Alito has more diverse and more "real world" legal experience than Judge Luttig. Luttig has been a fixture in Washington's elite legal and political circles ever since he left the chambers of Chief Justice Burger. Judge Alito, in contrast, has a nice mix of experience, both in Washington -- where he worked in the Solicitor General's office and served as deputy assistant attorney general at the DOJ -- and outside of Washington, where he served as an assistant U.S. attorney, and later the U.S. Attorney, in the District of New Jersey.
In attempting to place Harriet Miers on the Supreme Court, Mr. President, perhaps you were trying to add more of a "real world" perspective to the Court. Well, if you're worried about the Supreme Court becoming a legal ivory tower, appoint the former federal prosecutor to the Court -- not a graduate of that most ivory of towers, the Finishing School for the Elect, where lawyers write detailed memoranda on obscure questions such as "how many angels can dance on the head of a pin, consistent with the strictures of 5 U.S.C. §§ 3345-3349d."
3. Judge Luttig said mean things about Harriet Miers, your good friend and trusted advisor, on his blog, Luttig's Lair. How can you reward him with the plum of a Supreme Court nomination? Go instead with Judge Alito, who hasn't said anything negative about Harriet Miers over on his own blog.
2. Judge Luttig doesn't need to be appointed to the Court, since he's already a de facto "Tenth Justice." Through the Luttigators that he places at One First Street -- whose first allegiance is not to God, country, nor Yale, but to one J. Michael Luttig -- Luttig exerts a tremendous influence on the Court. His fingers are already in every SCOTUS pie; he doesn't need you to make it official.
1. The final reason to pick Judge Alito over Judge Luttig: Because you can, Mr. President; because you can.
Conventional wisdom and the conservative establishment would tell you to prefer Judge Luttig, a former Supreme Court clerk, over Judge Alito. But you are the President of the United States, and you -- unlike the rest of us -- don't need to bow down before Judge Luttig just because he's one of the Elect.
Rumor has it that you didn't like Judge Luttig much in his interview, finding him "nerdy," in an unpleasant rather than endearing sort of way. Follow that instinct, Mr. President. Strike a blow for the non-elites -- as you sometimes like to do -- and nominate Judge Alito to the Supreme Court!**
* This is a joke. Although Justices Scalia and Thomas are close jurisprudentially, they are not especially close personally. In fact, Justice Scalia has told people that he wishes he had a closer relationship with Justice Thomas. As for Chief Justice Roberts, he is probably too new to the Court to have fallen into any clique.
** Although Judge Alito is not as "elite" as Judge Luttig, insofar as Judge Alito never clerked for the Court, his qualifications are otherwise beyond reproach: Princeton College, Yale Law School, federal appeals court clerkship, U.S. Attorney's Office, Solicitor General's Office, Department of Justice, etc.