Underneath Their Robes

The Alito Nomination: A Few Quick Reactions

Article III Groupie actually has a very busy day -- and week -- ahead of her, so she's disappointed that the official announcement of Judge Samuel A. Alito's Supreme Court nomination comes at such a hectic time for her. But hey, the world doesn't revolve around A3G; it just seems that way sometimes. And even if President Bush's timing may not be ideal, his chosen nominee certainly is! (Check out Michelle Malkin's comprehensive round-up of blogospheric reaction, as well as Confirm Them, of course.)

Links to much of UTR's extensive past coverage of Judge Alito are collected in this post; if you're hungry for more information about the nominee, they should keep you well-fed for quite some time. In addition, here are some off-the-cuff observations and queries, plus a few links, concerning this morning's announcement by President Bush that he'll be nominating Judge Alito to the SCOTUS:

1. Does anyone know: When was the last time that a Third Circuit judge was nominated to the Supreme Court (if ever)?*

2. It's interesting to see President Bush turning once again to the Third Circuit for a home run of a pick (Michael Chertoff, Sam Alito), to salvage an initial nomination disaster (Bernard Kerik, Harriet Miers).

3. Judge Alito's acceptance speech was elegant, eloquent, excellent. A3G felt a shiver run up her spine when Judge Alito started to get choked up near the end of his remarks.

4. Some helpful surveys and analyses of Judge Alito's jurisprudence in specific areas: business law (Larry Ribstein); securities law (Dave Hoffman); copyright law (William Patry); sentencing and criminal law (Doug Berman).

5. Battle of the "juniors": Is Samuel A. Alito, Jr., an even stronger SCOTUS nominee than John G. Roberts, Jr.? Professor Ann Althouse thinks so; Ed Whelan, who clerked for Justice Scalia, shares that opinion.

6. Judge Alito is fairly affluent, even if he's not as filthy rich as the justice he would replace if confirmed, Justice Sandra Day O'Connor. (Gavel bang: How Appealing.)

7. Democratic Senators Frank Lautenberg and Bill Bradley supported Samuel Alito's prior nominations to serve as U.S. Attorney for New Jersey and a judge on the Third Circuit. (Robe swish: How Appealing.)

8. Judge Alito's family is quite attractive. Judge Alito and his wife, Martha Alito, have two children, Philip Alito and Laura Alito. The kids are too old to be as adorable as Jack Roberts and Josie Roberts, but they're still rather photogenic.

9. Check out the results of Hugh Hewitt's cool SCOTUS poll, which show (a) tremendous support for the Alito nomination and (b) a willingness to consider the consitutional option if the Democrats attempt to mount a filibuster. (Granted, the audience of Hewitt's blog is not representative of the public at large; conservatives like A3G are overrepresented in his readership. But the poll results are still encouraging.)

10. Based on the Google searches bringing people to this blog, it's clear that many of you are curious about Judge Alito's religion. As noted by Professor David Bernstein, Judge Alito is Catholic; if he is confirmed, there will be a Catholic majority on the Supreme Court.

11. Alito's mother, Rose Alito, is amusingly outspoken. This AP article reports as follows:

[Judge Alito] was born on April Fool's Day to a mother who was candid enough to tell the world he was upset that he didn't get the Supreme Court nomination a month ago.... More candid that her son might wish, she said, ''I think he was upset that he didn't get there in the first shot, that Miers got it.''...

If confirmed, Alito would be the fifth Catholic on the Supreme Court. ''Of course he's against abortion,'' his mother said, another comment supporters in Washington might wish she'd held back.

12. As noted here, Judge Alito helped coach his son, Phil Alito, to victory in the 2004 Duke University Moot Court Competition. Phil and his partner, Justin Greenbaum, had to argue "a hypothetical case in which an alternative student publication wanted to publish an article about Sept. 11 praising the terrorist attacks and the students publishing the literary magazine charged their constitutional rights were violated by the school's censorship."

As noted in this comment, given the case the students had to work on, they couldn't have asked for a better coach. At the time, Judge Alito had pending before him a high-profile appeal raising First Amendment issues in the student newspaper context. How neat!

* Update: This appears to be the first time that a Third Circuit judge has been nominated to the Supreme Court. A reader drew A3G's attention to this helpful chart of former Third Circuit judges and how their judicial appointments were terminated (e.g., by resignation, death, and even an impeachment back in 1913). No appointment on the list was terminated because of appointment to the Supreme Court. Although it's possible that a Third Circuit judge could have been nominated but not confirmed to the Supreme Court, A3G is not aware of that happening.

A further update: Howard Bashman confirms that "Judge Alito is also the first judge serving on the U.S. Court of Appeals for the Third Circuit ever to have been nominated to serve on the U.S. Supreme Court." Howard is also a big fan of Judge Alito:

At some point over the days to come, I will explain why I enthusiastically support this nomination. For now, my wife (who thinks Judge Alito is a great person, too) and I just want to take a moment to wish Judge Alito well in the days ahead, for he is a truly kind, intelligent, and compassionate person who undoubtedly will serve the Nation with great distinction on the Supreme Court just as he has served to this point with great distinction as a U.S. Court of Appeals judge.

Judge Samuel Alito: Under His Robe

According to news reports, Judge Samuel A. Alito, Jr., will soon be named as President Bush's Supreme Court nominee. To learn more about Judge Alito, check out these three great reports, from people with firsthand knowledge of what Sam Alito is really like: Eric Muller, Orin Kerr, and Michael Cernovich.

Of course, as a leading judicial celebrity, Judge Samuel Alito is no stranger to the pages of Underneath Their Robes. To locate Article III Groupie's prior posts on Judge Sam Alito, go to Google and type in the following (or click here):

--site:underneaththeirrobes.blogs.com alito

In addition to A3G's recent open letter to President Bush in favor of nominating Judge Samuel Alito, here are a few highlights from UTR's coverage of this superb jurist:

1. A judicial sightation of Judge Alito, "wandering down Broad Street in Newark, New Jersey," in the direction of T.M. Ward's Coffee Shop.

Ward's, by the way, has named a blend of coffee after SCOTUS nominee Alito. In the wake of President Bush's official announcement, expect sales of "Judge Alito's Bold Justice Blend" to skyrocket! The Philadelphia Inquirer has this report:

At T.M. Ward Coffee Co. in downtown Newark, near Alito's office, the judge is known more for his taste in coffee than for his legal philosophy. Store clerk Vera Barbosa said that Alito's law clerks wanted to do something special for his birthday a few years ago, so they persuaded the store to come up with a special blend for him.

"Judge Alito's Bold Justice Blend" -- a mix of Colombian, Java and New Guinea with a bit of espresso -- remains a hot seller at the coffee shop, Barbosa said, and Alito often stops by for it - by the cup and by the pound.

"He's a great man," Barbosa said. "He's very polite. He comes in whenever he has a chance. He's very nice."

2. A comparison of Judge Alito to the lovely and talented Kate Winslet, in The Race to the Courthouse: Some Insights from the Oscars.

Back in that post, A3G compared five Supreme Court short-listers to the five nominees for Best Actress at this year's Oscars. A3G wrote:

Both Alito and Winslet have been on the scene for a while, and they are justifiably held in high regard. For many years, they have been working hard and turning in fine performances. They are personally pleasant, and they are exceedingly well-liked.

But they face the same problem: How can they steal the momentum from their flashier, more aggressive colleagues? Despite his misleading nickname of "Scalito," the unassuming Judge Alito isn't nearly as forceful a personality as Justice Scalia. How can Judge Alito avoid becoming breakfast for Judge Luttig's pack of hungry wolves -- the powerful network of well-placed Luttigators, who all share a cult-like devotion to the aggrandizement of their former boss?

By the way, although A3G loves nicknames, she will generally avoid using the moniker of "Scalito" (whose origin is explained at Stuart Buck's blog). As noted by Fred Barbash and Peter Baker of the Washington Post, "most observers believe that [nickname] greatly oversimplifies his record. Alito is considered far less provocative a figure than Scalia both in personality and judicial temperament. His opinions and dissents tend to be dryly analytical rather than slashing. In addition, his appeals court record is not uniformly conservative on the sorts of issues that arise in Supreme Court confirmation battles."

So, although conservatives should be happy that President Bush has selected a nominee "in the mold of Justice Scalia and Justice Thomas," liberals should not have a reaction of knee-jerk antipathy towards Judge Alito.

3. A judicial sightation of Judge Alito at the local Shoprite supermarket. According to UTR's source, the possible future Associate Justice "bags his own groceries"!

4. A lengthy footnote about Judge Alito, in a post suggesting that President Bush nominate Jennifer Lopez, Oprah Winfrey, or Janet Jackson's right breast to the Supreme Court. A3G expressed fear that Judge Alito's status as one of the Great Unwashed would hurt his SCOTUS candidacy. She's happy to be wrong!

5. A quick post noting that Judge Alito "is known for being brilliant, mild-mannered, and unfailingly polite."

6. In this post about then-Judge Michael Chertoff, a former colleague of Judge Alito, A3G noted (item #14) that Judge Alito's wife, Martha Alito, "was formerly the law librarian in the U.S. Attorney's Office where he worked."

7. In this post about Judge Consuelo M. Callahan, A3G identified Judge Alito (and then-Judge Roberts) as a top SCOTUS possibility. A3G described Judge Alito as "relatively young, impressively credentialed, and reliably conservative, but not fierily or flamboyantly so."

The moral of the story of Judge Alito's nomination: sometimes nice guys do finish first. On behalf of UTR's readers, A3G says:

WE LOVE YOU JUDGE ALITO!!!

Breaking News: Judge Alito Is the SCOTUS Nominee!!!

There's no official announcement yet, but news outlets are reporting that President Bush has selected Judge Samuel A. Alito, Jr., as his nominee to the United States Supreme Court. An announcement is expected at 8:00 a.m. EST.

Article III Groupie didn't predict that Judge Alito would be the nominee, at least not in recent weeks.* SCOTUSblog's Tom Goldstein did predict Alito, making him three-for-three in major SCOTUS predictions -- the undisputed champ of Supreme Court prognostication.

In this case, A3G is absolutely thrilled to be wrong. Judge Alito is a simply sensational choice, her personal favorite among all the short-listers. A3G is honored that the president and his advisors heeded her impassioned, eleventh-hour plea to select Samuel Alito over J. Michael Luttig for the Court.

Judge Alito, A3G can't accept flowers from you; but a shout-out on your blog would be lovely, thanks! An offer to clerk for you on the Supreme Court would also be accepted with gratitude.

Congratulations, Judge Alito!!!

* Back in this post, in November 2004, A3G mentioned Judge Sam Alito -- alongside then-Judge John G. Roberts, now Chief Justice Roberts -- as a top SCOTUS possibility.

Driving Miss Janice: Will Judicial Diva Brown Take the SCOTUS Wheel?

Earlier today, Professor Doug Berman raised this possibility:

This article reports that President Bush "and First Lady Laura Bush were scheduled to participate in a wreath-laying ceremony this evening honoring late civil rights activist Rosa Parks."  Wouldn't it be an incredible moment of political theater and strategy to announce the SCOTUS nomination of Judge Janice Rogers Brown at this event?  The President could describe Brown as the judicial equivalent of Rosa Parks, and framing the nomination in such terms would, I think, greatly impact the political dynamics and debate surrounding this nomination.

Professor Ann Althouse condemned such a stunt as being in "mind-shattering bad taste"; A3G largely agreed, but added that it might also "partake of a certain 'so bad it's good' quality." (Carol Platt Liebau seemed to share A3G's view: it would leave President Bush open to charges of politicizing an apolitical event, but it would undoubtedly give rise to "a blockbuster moment.")

It now appears that there will be no SCOTUS announcement today, so this point may be moot. But if you're curious about what A3G meant when she said that announcing a Jance Rogers Brown nomination at a Rosa Parks ceremony might be "so bad it's good," consider how it would allow Judge Brown to deliver nomination acceptance remarks dominated by tortured, bus-related metaphors:

Back when I was a state court judge, a status that some commentators have described as "icky," I was sitting at the back of the judicial bus.  When I was confirmed to the exalted D.C. Circuit, our nation's preeminent federal appeals court, I moved up to the front of the bus. Now, if confirmed to the U.S. Supreme Court, I will be driving that damn bus. I've come a long way, babies!

Of course, even if tonight's ceremonies for Rosa Parks come and go without an announcement, Judge Brown might still end up as the nominee. Feddie is now predicting that she will get the nod, and Erick thinks it is a definite possibility. With everyone fixated on Judge Alito and Judge Luttig, nominating Judge Brown would take many by surprise -- and President Bush sure likes surprises.

SUPREME COURT NOMINATIONS ARE FUN!!!

A Win-Win-Win-Win Situation?

This comment, by an unidentified reader of this blog, led Feddie to offer this exciting speculation: President Bush's Supreme Court nominee will be Judge Edith Hollan Jones, "The Horsewoman of the Right-Wing Apocalypse" (a high compliment here at UTR).

Meanwhile, all of the Alito-Luttig speculation has led Professor Douglas Berman to offer this equally delicious possibility: President Bush will nominate Judge Janice Rogers Brown to the Court, perhaps at this evening's wreath-laying ceremony in honor of the late Rosa Parks. (Professor Ann Althouse opines that announcing Judge Brown's nomination at the Rosa Parks ceremony would constitute "[a]n incredible moment of mind-shattering bad taste," and A3G is inclined to agree with her. But such a move would partake of a certain "so bad it's good" quality, too.)

Friends, we find ourselves in a win-win-win-win situation. All of the folks whose names have been bandied about in the past few days -- Samuel Alito, Michael Luttig,* Janice Rogers Brown, Priscilla Owen, Edith Jones, Karen Williams, Alice Batchelder, Emilio Garza -- would be great SCOTUS picks. They are all brilliant, splendidly credentialed, highly conservative jurists. Barring a very unforeseen development, we will all be extremely happy campers in the very near future.

* Does Article 3 Groupie harbor "player hate" for Judge Luttig, whose unmatched ability to feed his clerks to the Court leaves the rest of us out in the cold? Of course she does; she feels great resentment and schadenfreude towards Judge Luttig and his hardy crew of Luttigators. But A3G can't deny that Judge Luttig is a legal genius and a staunch conservative. As such, he would be an excellent SCOTUS nominee, as well as a very fine justice if confirmed. (A3G does not put much stock in these rumors about Judge Luttig, which are inconsistent with the incredible intellect he has demonstrated over his long judicial career.)

Alito : Luttig :: Clement : Roberts

The growing Supreme Court buzz around Judge Samuel A. Alito, Jr. is reaching highly suspect, Clement-ine proportions. Is the White House trying to fake us out using the same strategy that it previously employed? Article III Groupie is reminded of the old saying that President Bush once horribly mangled: "Fool me once, shame on you; fool me twice, shame on me."*

Perhaps because of this feeling of déjà vu, A3G's theory that Samuel Alito is playing "Edith Brown Clement" to the "John Roberts" of Judge J. Michael Luttig is gaining traction. Over at the Washington Post's excellent Campaign for the Court blog, Fred Barbash provides this helpful round-up of the Alito buzz in the morning newspapers -- which he dubs "the Edith Brown Clement Memorial Sweepstakes."

The similarities to the Clement situation are striking. Speculation about Judge Clement's supposed absence from chambers on the day of President Bush's nomination announcement -- Clement was rumored to be on vacation** -- fueled the rumor that she was going to be the nominee. Similarly, the Alito buzz is being fed by his own absence from chambers (and presence in D.C.), as reported in today's Washington Post:

Adding to the speculation were reports by those close to the process that Alito arrived in Washington Thursday night. Asked why the judge came to town and whether he was in chambers yesterday, Alito's clerk laughed and said he would have to take a message. The White House, meanwhile, declined to comment.

To all the liberal interest groups and left-wing bloggers, A3G says: Don't be fooled; don't take the bait. Sic your attack dogs on Luttig -- he's your man. Even though Alito would be a great SCOTUS pick, he is a mere decoy.

Update: There is a long and provocative reader comment appended to this post, which appears to be based on these rumors about Judge Luttig (first reported at TalkLeft, as far as A3G knows; scroll down to the bottom of the page).

* President Bush said, "Fool me once, shame on -- shame on you. Fool me -- you can't get fooled again."

** This rumor was incorrect, according to this reader comment, as well as this Washington Post article (which places Judge Clement in New Orleans on that day). A3G read about Judge Clement's supposedly being on vacation here (see update #2).

The Miers Confirmation Hearings: Ten Possible Strategies

(No, the title of this post is not in error; keep on reading for the explanation.)

Doonesbury was plannning to devote a series of comic strips to the Harriet Miers nomination. After the Miers nomination got pulled, the comic strips did too. For those of you who are curious, you can check out the strips -- which are quite amusing -- by clicking here. (Gavel bang: Howard Bashman/How Appealing.)

In a similar spirit of not letting Harriet Miers-related efforts go to waste, Article III Groupie offers you the post appearing below. This post was more or less fully drafted, and A3G was just putting the finishing touches on it, when news of Harriet Miers's withdrawal broke. A3G thought she would just delete this post. But since she put so much work into it, she figured she might as well share it with her readers, in case some of you might find it interesting or amusing.

So here it is, for what (little) it's worth in the post-Miers era. It's the perfect thing to post on a slow weekend evening. Enjoy!

********************

Supreme Court nominee Harriet Miers is preparing frantically for her confirmation hearings before the Senate Judiciary Committee, which are currently set to start the week of November 7. In preparing for those hearings, Miers is going to need all the help she can get. Right now she is going through "murder boards," led by the beautiful and brilliant Rachel Brand (who would, despite her youth, be a better SCOTUS pick than Harriet Miers). But even UTR's Prom Queen may not be able to spin straw into gold.

Well, Article III Groupie is here to help. She would like to offer Harriet Miers ten suggested strategies to employ at her upcoming confirmation hearings:

1. "Talk to the Hand." Senator Arlen Specter observed that Harriet Miers is in need of a "crash course on constitutional law." Well, if she's worried about forgetting the names and holdings of any important Supreme Court decisions, she can always take this approach...

2. She Gets By with a Little Help from Her Friends. Harriet, take a page from the playbook of your boss: inside your decolletage, or maybe within the thicket of your disastrous hair, conceal a radio transmitter. Then let legal geniuses like Brett Kavanaugh and William Kelley feed you the answers to all of the senators' questions!

3. Running Out the Clock. Because Harriet Miers is not exactly brilliant, her main goal in the hearings is to avoid total embarrassment. Unlike John G. Roberts, she can't hope to impress the senators or the American people with her legal acumen; she just wants to escape relatively unscathed.

So, like a basketball team with a healthy lead in the fourth quarter, Harriet Miers should try to run out the clock. She should speak very slowly and deliberately, and she should take many long pauses -- before, during, and after her response to each query. This will prevent the senators from getting in too many of those pesky questions of theirs, and it will minimize Harriet Miers's chances of embarrasing herself. As she demonstrated in her visits to various senators, every time Harriet Miers opens her mouth, something stupid comes out.

How will Harriet Miers know if she is doing a good job? If the transcript of her confirmation hearings looks like a Harold Pinter play! ("Pause." "Silence." "Slight pause." "Long silence.")

4. More Public Scatology. This strategy should be used in conjunction with "Running Out the Clock," supra. Whenever she's asked a question that she needs time to think about (or consult with someone about), which will be often, Harriet Miers will also ask to go the bathroom.

When Chairman Specter expresses irritation with the countless bathroom breaks -- which Harriet Miers's boss, President Bush, is also known to take -- Harriet Miers will then come clean. She will patiently explain to the Committee that she suffers from explosive diarrhea. At that point, the members of the Committee, completely disgusted and grossed out by the thought of Miers's exploding bowels, will immediately adjourn the hearings -- FOREVER!!!

5. Turning the Tables. This tip is also a variation on "Running Out the Clock." As the Roberts confirmation hearings painfully reminded us, senators love to talk, and talk, and talk... There were times during the Roberts hearings when a senator would ramble on for so long, it was possible to forget there was a nominee in the room!

Harriet Miers can use this senatorial loquaciousness to her advantage. She should sit in her chair, very patiently and silently, as the senators ramble on; she should give no indication whatosever of impatience or any desire to speak. When the senator finally finishes his speech and poses a question, she should then "turn the tables" on him. In good Socratic fashion, just like a law professor, she should ask: "Well, Senator, what do you think?"

The proper response would be: "Excuse me, Counsel Miers, but these are your confirmation hearings." But how many senators will actually respond like that? Have you ever known a member of Congress to turn down an opportunity to talk? There is nobody alive who loves the sound of his own voice more than a United States Senator.

6. "Ain't I a Woman?" Harriet Miers should -- and will -- "play the gender card" at her hearings. One of the (few) talking points that the White House has been pushing to sell Harriet Miers is her series of female "firsts": first woman hired at her firm, first female president of her firm, first woman president of the Dallas Bar Assocation and the Texas State Bar, etc. In her opening statement, Harriet Miers will probably allude to her achievements as a female lawyer. When Senatrix Dianne Feinstein starts grilling Miers about abortion, Miers will probably spout some platitude about how she, as a woman, is especially sensitive to women's issues. (And we know that Miers is very good with the platitudes.)

7. Stand Behind Her Man. Ever since President Bush's announcement of the Harriet Miers nomination, the nominee's voluble ex-boyfriend, Justice Nathan Hecht of the Texas Supreme Court, has been serving as her unofficial spokesperson. Justice Hecht is everywhere, serving as the mouthpiece of Harriet Miers (and perhaps in ways that might cause him to be subpoenaed by the Judiciary Committee, thanks to his participation in the infamous conservative conference call).

So, dear Harriet, why not just let Nathan Hecht take your place at the confirmation heaings? If he can blab to people about how you'll vote on Roe v. Wade, surely he can field a few questions from a handful of senators about your jurisprudence. Up to this point, Justice Hecht has been doing all the talking for you, and we've all gotten used to this arrangement. So why change things now?

8. The Art of Seduction. Seduction is the oldest trick in the book for a woman who wants something from a powerful man (or men). And employment of feminine wiles is not without precedent at Senate confirmation hearings. At her 1983 confirmation hearings for the district court, Judge Maryanne Trump Barry (3d Cir.) successfully flirted up a storm. At the end of her hearings, Senator Strom Thurmond, who was at the time the Chairman of the Judiciary Committee, told her: "I’m sure your attractiveness as a lady will not handicap you in your work, and I wish you well in your tenure on the bench."

So does this mean the senators will succumb if Harriet Miers starts batting her eyelashes at them? Alas, most of them will probably be unmoved; Harriet Miers is no longer the hottie that she was in her youth. But she might get Senator Ted Kennedy's vote...

9. Adoption of an Incomprehensible Accent. Speaking of the late Senator Thurmond, A3G always found his thick Southern accent impossible to understand. In Harriet Miers's case, she should adopt a Texas twang so heavy that no one -- not even her fellow Texan, Senator John Cornyn -- can understand her remarks. The Senators will then treat her testimony like a collection of auditory Rorschach blots: each senator will hear exactly what he wants to hear.

For example, take the sentence "I would overrule Roe v. Wade." Mumble it in a super-strong Texas accent, slowly and incoherently, as if you were mentally challenged. It kinda sounds like "I'd uphold the rule of Roe v. Wade," doesn't it?

10. The Familial Charm Offensive. This is a strategy that worked beautifully for Chief Justice Roberts. He deployed the adorable Jack and Josie Roberts masterfully, using his photogenic children to distract and to win brownie points from the senators.

Yes, it's true; Harriet Miers doesn't have any children. But she does have an aged mother, and that's almost as good. Once 93-year-old Sally Miers starts flashing those gums for the members of the Judiciary Committee, her daughter's speedy confirmation will be guaranteed!

Sorry, Judge Alito; the Luttigators Have Won

Article III Groupie tried; she really did. But it looks like her effort was too little, too late. One woman -- even a woman armed with a fabulous blog and a killer shoe collection -- is simply no match for an entire network of ruthless Luttigators, working overtime to send their former boss to One First Street (in between writing cease-and-desist letters to The Onion). The underdog might win in the movies, but this is real life.

Earlier today, A3G made her strongest pitch as to why President Bush should nominate Judge Samuel A. Alito, Jr., to the Supreme Court, instead of Judge J. Michael Luttig, the boringly obvious, inside-the-Beltway favorite. But despite A3G's best efforts, and a promising early lead for the widely admired Sam Alito, it looks like the tide has turned -- as A3G knew it would. Going into the weekend, Judge Luttig now has the upper hand. Expect a JML coronation early next week.

Gavel bangs for the Hugh Hewitt and Confirm Them links: Reasoned Audacity, by Charmaine Yoest. Yoest which also offers -- in the left-hand column of her blog -- a poll inviting readers to vote on who should be the next SCOTUS nominee. Check it out!

The current leader in Yoest's poll, by a hefty margin? No surprise here: Judge Janice Rogers Brown, that scrumptious judicial diva!

Update: A3G realizes that Judge Alito is leading the field right now over at TradeSports, as noted over at Financial Rounds. But she has her doubts concerning the reliability of TradeSports when it comes to predicting SCOTUS nominees more than a few hours in advance. When the rumor mill was churning over Edith Brown Clement, her stock was way up at TradeSports. Then, when the news of John Roberts's nomination leaked shortly before the press conference, her stock plummeted, and his skyrocketed. For fairly comprehensive analysis of TradeSports and SCOTUS nominees, check out this VC post and the many related posts referenced therein.

A3G to President Bush: Pick Alito, Not Luttig

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.

SCOTUS Scuttlebutt: Naming Names

President Bush's announcement of his next Supreme Court nominee apparently won't come today, but could arrive as early as next week. Here are three good articles offering speculation about who the SCOTUS nominee might be (gavel bangs to Feddie and to Howard Bashman, who also gets birthday wishes):

1. Bush Is Not Expected to Feel Need to Pick Woman Again, Neil A. Lewis (NYT)

Money quote:

One lawyer close to the president said that when Mr. Bush chose Ms. Miers he did so after concluding there was not a long roster of female candidates with whom he felt comfortable.

"When he chose her," said the lawyer, "she was one of three finalists and the other two were men."

The other two candidates, the lawyer said, were federal appeals court judges, Samuel A. Alito Jr. and J. Michael Luttig, both of whom remain leading candidates who would bring strong legal and judicial credentials to any confirmation battle.

2. Miers, Under Fire From Right, Withdrawn as Court Nominee, Michael A. Fletcher & Charles Babington (WP)

Money quote:

Miers's withdrawal touched off a fresh wave of speculation about whom Bush would nominate for the seat. Some conservative activists predict Bush will reconsider some previously thought to be in the running, including federal appellate judges Samuel A. Alito Jr., J. Michael Luttig, Karen J. Williams, Michael W. McConnell and Priscilla R. Owen. Another federal judge mentioned is Diane S. Sykes.

Others speculated that Bush might nominate a senator with judicial experience, such as John Cornyn (R-Tex.), to avoid a contentious battle because senators would be unlikely to reject one of their own. Cornyn, a former Texas Supreme Court justice and one of the few to actively back Miers, played down that possibility, saying: "I doubt it will happen." 

3. Bush Pulls Plug on Miers, Jan Crawford Greenburg (Chicago Tribune)

Money quote:

The group [of leading contenders] includes Samuel Alito, J. Michael Luttig, Priscilla Owen and Karen Williams, the official said. All four judges had been interviewed by Bush or top administration officials and indicated they would accept the nomination if asked.

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Right now it seems that Judge Alito and Judge Luttig are generating the most buzz. Judge Alito may enjoy a slight lead over Judge Luttig (per Tom Goldstein of SCOTUSblog* and Erick of Confirm Them), perhaps because he's widely viewed as more confirmable than Judge Luttig. According to Neil Lewis of the Times, Judges Alito and Luttig both "would draw Democratic opposition," but Judge Alito "to a lesser extent" than Judge Luttig. In addition, Judge Alito is much nicer and less grating than Judge Luttig in terms of personality -- which, in this age of televised confirmation hearings, are virtues that shouldn't be underestimated.

Article III Groupie would love to see Judge Alito get the nod. But as she has previously speculated, don't be surprised if Judge Alito, one of the Great Unwashed, is forced to play "the Edith Brown Clement role," distracting media attention and enemy fire away from the real nominee: Judge Luttig, a member of the Elect and UTR's #1 feeder judge. In fact, the suspiciously great ease with which the White House Counsel's office has allowed Judge Alito to emerge as the frontrunner suggests that poor Sam Alito is being turned into the "Edith Clement" for the "John Roberts" of Mike Luttig (a close friend and former groomsman of Chief Justice Roberts).

The migration of Luttigators from Alexandria to One First Street is positively nauseating in its inevitability. A3G suspects that, in the end, the same will be said of their boss. In nominating Harriet Miers, President Bush tried to make an unorthodox pick, and it blew up in his face. The second time around, he can be expected to go with Judge Luttig -- the most orthodox, obvious pick of them all.

A long time ago, A3G learned that life isn't fair. But why does it have to be so g***amn boring???

* Tom Goldstein is predicting that Judge Alito will be the nominee. Goldstein's skill as a Supreme Court prognosticator should not be underestimated; only 42 minutes into the Harriet Miers nomination, he correctly predicted that she wouldn't make it onto the high court.