Maureen Mahoney: "The Female John Roberts"?

Sources are saying that President Bush's pick to replace Justice Sandra Day O'Connor on the Supreme Court could come as early as this Friday, after Judge John G. Roberts, Jr., is officially confirmed by the Senate to serve as Chief Justice.

Article III Groupie engaged in lots of rumor-mongering who would get the nomination that ultimately went to Judge Roberts (before he was switched over to the Chief Justice spot). This time around, because of nomination speculation fatigue, A3G plans to sit on the sidelines. She will leave the SCOTUS speculation to others, such as the folks over at Confirm Them, who are doing a great job of keeping up with all the latest news and rumors. (Confirm Them, you may recall, is a project of RedState.org -- which is where A3G learned, well before President Bush's press conference, that Judge Roberts was going to be the nominee.)

A3G was intrigued by one item in this nomination speculation by Emily Bazelon (despite certain valid criticisms of Bazelon's piece made by Carol Platt Liebau at Confirm Them). Bazelon identified Maureen E. Mahoney (item #2), a young female star of the Supreme Court bar who is a partner at Latham & Watkins, as a SCOTUS possibility:

It may be that the female John Roberts is out there.* Like Roberts, Maureen Mahoney is a leading Supreme Court litigator; she's been arguing before the court since 1988. Like Roberts, she's from the Midwest (born in South Bend, Ind.). Like Roberts, she clerked for Chief Justice William Rehnquist. Like Roberts, she was one of Kenneth Starr's deputies when he was solicitor general for Bush I.

Mahoney's problem: She has argued in favor of affirmative action -- on the winning side for the University of Michigan Law School in the 2003 Supreme Court case Grutter v. Bollinger. But that shouldn't disqualify her if defending development restrictions around Lake Tahoe -- a bad loss for the property-rights movement -- didn't disqualify Roberts....

Maureen Mahoney's credentials are obviously impeccable; as Marty Lederman observed over at SCOTUSblog, she is among "the finest SCOTUS oral advocates." The real question, as noted by Bazelon, is whether Mahoney is conservative enough to get the nomination -- or whether she will be perceived by the Republican base as being conservative enough, in light of her work on Grutter.

Does anyone know about how conservative Mahoney truly is? If she's conservative enough -- and the bar may be lower for someone replacing Justice O'Connor as opposed to Chief Justice Rehnquist -- then she would be an excellent candidate for the high court.

On the question of Mahoney's conservatism, the following facts are worth noting:

--she was previously nominated for a federal judgeship under Bush I (but President Clinton took office before she could be confirmed);

--she is Republican, and she was on the Bush II transition team (and made the maximum contribution allowable under federal law to President Bush's 2000 presidential campaign);

--she was reportedly considered by the Bush Administration for the post of Solicitor General, before Ted Olson got the job, and also for a seat on the D.C. Circuit;

--she was picked, presumably by the White House Counsel's Office or the DOJ's Office of Legal Policy, to testify on behalf of Judge Roberts at his recent confirmation hearings (alongside such conservative stalwarts as Jennifer Cabranes Braceras, Robing Room Report's Most Delicious Diva);** and

--Nina Totenberg has described Mahoney as "a very, very conservative woman Catholic."

Okay, fine; being called "very, very conservative" by Nina Totenberg is as big an accomplishment as having a pulse. But it's worth noting that the conservative Jonathan Adler, of NRO's Bench Memos, supports Mahoney. (Update: As noted in a comment to this post, by Mike Cernovich of Crime & Federalism, Professor Douglas W. Kmiec -- another prominent conservative -- is also a Mahoney fan.)

A3G said she wasn't going to engage in SCOTUS speculation, and now look at what's happened -- she's done exactly that! But now she really must shut up; she has a brief that requires her immediate attention...

As for literal speculation about the identity of the next Supreme Court nominee, head over to the online betting site TradeSports.*** Right now the odds-on favorite over there is Judge Karen J. Williams of the Fourth Circuit, also known to UTR readers as "Miss Karen" (female hottie #8). In her private jet, the well-heeled Judge Williams is flying high above the competition right now. But will Miss Karen soar or crash? Let's wait and see.

* A "female John Roberts" would be a Republican dream come true. Before the Roberts confirmation hearings, Senator John Cornyn (R-TX) made this funny quip: "I don't know whether John Roberts has a twin, perhaps a sister or, uh, someone with a Hispanic last name."

** Tom Goldstein provided this pithy summary of Mahoney's testimony before the Senate Judiciary Committee: "She likes John Roberts." More information on her remarks is available at the Washington Post's Supreme Court blog.

Interestingly enough, Mahoney impressively predicted Judge Roberts's nomination to the Court -- back in February 2005. As noted in this article by Tony Mauro:

"I think it will be John Roberts," said Latham & Watkins partner Maureen Mahoney, who is on some lists herself. "He has the brilliance, dedication and temperament to emerge as an intellectual leader of the Court."

What a nice rave! Chief Justice Roberts would surely love to have Maureen Mahoney as a colleague. (How shrewd of you, Justice Mahoney -- buttering up the boss, before you even show up for work!)

*** Whether TradeSports should be viewed as a reliable guide to who will get the nomination is open to debate.

Comments

[jw]

There's some discussion (and a link to an article) here about Mahoney: http://www.confirmthem.com/?p=1374#comments

[Insider]

Mahoney is very conservative, but fair and pragmatic. She's definitely got the conservative bona fides and is no lightweight. Plus, she's hard to oppose: the NAACP called her a civil rights champion after Grutter. I'd be very surprised if she doesn't get serious consideration.

[Brian]

and you can listen to her oral argument in the Grutter case at the Oyez project.

http://www.oyez.org/oyez/resource/legal_entity/1758/cases

[Mike]

Kmiec seems to be lobbying for Mahoney. Here:

"Pepperdine's Kmiec agreed: 'Law schools have been producing high-ranking female graduates for over a decade. For example, Maureen Mahoney [partner at Latham & Watkins and a former deputy solicitor general] is one of the most excellent Supreme Court advocates. The mere fact she is not sitting on the District of Columbia Circuit ought not to disqualify her.'"

And here:
"Pepperdine University law professor Douglas W. Kmiec ... thinks Mahoney would be an ideal choice. 'I would hope that the president would not be fooled [into] thinking that the pool is narrowed and that he only need consider female jurists in the judiciary,' he said. He said Mahoney was 'of the same intellectual quality and commitment to legal principle' as Roberts."