September 30, 2005


In the midst of a good deal of Administration-bashing in this space of late, I should pause and take note of the excellent job getting John Roberts approved as Chief Justice. He is a near-perfect pick, and I can only hope Bush can replace O'Connor as skillfully as he did Rehnquist. In this vein, don't miss this old Jeffrey Rosen piece.

Money quote:

But the more important distinction is between principled conservatives (who believe in deference to legislatures through judicial restraint) and conservative activists (who are determined to use the courts to strike at the heart of the regulatory state). The activists want to resurrect what they call the "Constitution in Exile," enforcing limits on federal power, that have been dormant since the New Deal, in part through narrow interpretation of the interstate commerce clause.

I'm with the so-called principled conservative wing, and I'd urge the President to go with either J. Michael Luttig or Michael McConnell. Both are quite young, and so will be a strong presence on the court for decades. I'd probably lean Luttig all told, but would guess Bush might go with McConnell. Why? He's personally pro-life, so that might assuage suspicious social conservatives and evangelicals and such, but note, per Rosen:

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. [emphasis added]

No to Edith Brown Clement, to Janice Rogers Brown. And no to Garza and Gonzalez (he of defining torture down). No need to artifically fill a 'Hispanic' seat, let's go with the best qualified 'principled' conservative out there. Memo to POTUS: Give yourself another break, go with Luttig or McConnell (the former, ideally). It will make your life easier, and you'll be doing the right thing by the Supreme Court to boot.

UPDATE: Oh no, Pej is reprimanding me on my (too) approving Rosen quotes...

Posted by Gregory at September 30, 2005 03:33 AM | TrackBack (1)

For what it's worth, David Bernstein and others at the Volokh Conspiracy also don't believe there is a "Constitution in Exile" movement.

I don't know anything about law myself, though.

Posted by: fling93 at September 30, 2005 10:45 PM | Permalink to this comment Permalink

I can only hope Bush can replace O'Connor as skillfully as he did Rehnquist

Posted by: A Liberal at October 3, 2005 10:47 PM | Permalink to this comment Permalink
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