01 July 2005

AP: Potential Candidates for Supreme Court

Potential Candidates for Supreme Court

By The Associated Press

A look at some possible candidates for the vacancy on the Supreme Court:


Dubbed "Scalito" or "Scalia-lite" by some lawyers because his judicial philosophy invites comparisons to Supreme Court Justice Antonin Scalia, Alito, 55, has been a strong conservative voice in his 15 years on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, which is considered to be among the most liberal.

On one hot-button issue, Alito was a lone dissenter in a case striking down a Pennsylvania law requiring women seeking abortions to inform their husbands. Alito argued that the Pennsylvania legislature "could have rationally believed" that married women might seek abortions because of perceived problems such as finances or a husband's prior opposition that could be rectified if the couple talked before an abortion.

The case was appealed to the U.S. Supreme Court, which struck down the spousal notification requirement and reaffirmed the Roe v. Wade decision that legalized abortion.

Alito also has written a majority opinion holding that a city's holiday display that had a menorah did not violate the First Amendment's establishment clause — which bars the federal government from declaring a national religion — because it included secular symbols such as Frosty the Snowman.

He dissented in cases that loosened the legal standards for bringing a sex discrimination lawsuit.

In a dissent to a ruling that upheld the constitutionality of a federal law banning the possession of machine guns, Alito argued for greater state rights in reasoning that Congress had no authority to regulate private gun possession.

On the bench, Alito is known to be probing but more polite than the often-caustic Scalia.

Before President George H. W. Bush nominated Alito to the federal appeals court in 1990, he served as U.S. attorney for the District of New Jersey (1987-1990), where his first assistant was Michael Chertoff, now the Homeland Security Department secretary.

Alito was the deputy assistant attorney general in the Reagan administration (1985-87) and assistant to the solicitor general (1981-85).

His New Jersey ties run deep. The son of an Italian immigrant, Alito was born in Trenton and graduated from Princeton University. He headed to Connecticut and Yale University, where he received his law degree in 1975.

In a 1999 case, Fraternal Order of Police v. City of Newark, the 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. The police had made an exemption in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons.

Alito wrote the opinion, saying, "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not."

In a May 2005 profile in The Newark (N.J.) Star-Ledger, Alito said, "Most of the labels people use to talk about judges, and the way judges decide (cases) aren't too descriptive. ... Judges should be judges. They shouldn't be legislators, they shouldn't be administrators."


A former Marine and Texas state judge, Garza, 58, sits on the New Orleans-based 5th U.S. Circuit Court of Appeals and was considered for a Supreme Court seat by the first President Bush.

Appointed a federal judge by President Reagan and elevated to the 5th Circuit in 1991, he has become best known for his views that Roe v. Wade should be overturned and that abortion regulation should be decided by state legislatures.

In 1992, for example, he voted to strike down a Louisiana law criminalizing abortion in deference to Supreme Court precedent. But in his opinion, Garza made clear his disdain for Roe v. Wade.

"Two essential facts seem apparent: The Constitution says absolutely nothing about abortion and ... the long-standing traditions of American society have permitted abortion to be legally proscribed," he wrote. "Because the decision to permit or proscribe abortion is a political choice, I would allow the people of the state of Louisiana to decide this issue for themselves."

In 1997, Garza voted with the majority to strike down a Louisiana law allowing judges to deny abortion to a minor and notify her parents. He criticized Roe's legal reasoning in a concurrence.

His opinions in those two cases have drawn the ire of women's and abortion rights groups, who fear that if elevated to the high court Garza would be a reliable vote to overturn Roe v. Wade.

An avid questioner in oral arguments, Garza's written opinions tend to be clear and scholarly.

In other cases:

- Garza dissented from a 5th Circuit decision in 2001 affirming a lower court decision to grant a prisoner's habeas corpus petition. The prisoner established that his attorney had slept through major portions of his trial. Garza argued that the claim of ineffective counsel was insufficient because the prisoner failed to show that the trial's outcome was prejudiced by the sleeping lawyer.

- Garza wrote for the 5th Circuit majority in a 1999 case upholding a district court's summary judgment in favor of the police and city of Lago Vista, Texas, in a civil rights case in which a woman alleged her Fourth Amendment rights against unreasonable searches and seizures were violated when she was arrested for driving without wearing a seat belt, a violation of state law. Her children also were not wearing seat belts, another violation of Texas law. Garza said there was probable cause for the arrest and that it was not conducted in an "extraordinary manner" harmful to the woman's privacy interests. Such a violation is a misdemeanor, typically punishable by a fine.

Garza was born in San Antonio, Texas, and received his bachelor's and master's degrees from the University of Notre Dame. He returned to Texas and earned his law degree from the University of Texas in 1976.


Every time — and there have been five so far — that George W. Bush has asked Alberto Gonzales to accept top jobs in his government, Gonzales has said yes. A possible nomination to the Supreme Court, for which Gonzales is believed to be in the running, could make it six.

Such a nomination would make him the first Hispanic to serve on the nation's highest court. He achieved another first in February when he was sworn in to office as the nation's 80th attorney general and the first Hispanic to lead the Department of Justice.

The decade-old friendship between Bush and Gonzales dates to 1995 when, as Texas governor, Bush plucked Gonzales from a corporate law firm in Houston and named him the governor's general counsel. Since then, Gonzales' fortunes have risen in tandem with Bush's.

In 1997, Bush named Gonzales to the post of Texas secretary of state, making him the state's top elections official. Two years later, Bush nominated for a seat on the Texas Supreme Court.

After Bush became president in 2001, Gonzales left the court to become White House counsel, where he provided legal advice to the president and helped him fill vacancies on the federal bench.

It was in this position that Gonzales wrote a legal memo in 2002 contending that Bush had the right to waive anti-torture laws and international treaties that provide protections to prisoners of war. Critics have said the memo helped lead to abuses of the type seen at the Abu Ghraib prison in Iraq.

Gonzales also drafted rules for the military war tribunals created after terrorist attacks.

Soft-spoken and known as "the judge" to his White House colleagues or "Al" to friends, Gonzales also has critics on the right, who think he is too much of a moderate. The mistrust stems from his time on the Texas Supreme Court when he joined with the majority to affirm a pregnant teenager's right to seek an abortion without telling her parents.

Gonzales accused two dissenters in that case of "unconscionable judicial activism" — words that came back to haunt him after Bush nominated one of the judges, Priscilla R. Owen, to a seat on the federal appeals court. Democrats threw Gonzales' words back at the White House.

If nominated to the high court, Gonzales' advice to Bush regarding the treatment of prisoners in the war on terror is certain to be a source of questioning during Senate confirmation hearings, as was the case during hearings on his nomination to be attorney general.

Gonzales, 49, has an up-from-the-bootstraps story that President Bush is fond of telling. He is the son of Pablo and Maria, migrant farm workers from Mexico, neither of whom finished elementary school, and he grew up near Houston in a two-bedroom house with his parents and seven siblings.

Gonzales graduated from high school in the 1970s and, with little thought of going on to college, he joined the Air Force. He also spent two years at the Air Force Academy before he changed his mind and decided to pursue a legal career instead of his dream of becoming a pilot.

He graduated from Rice University and Harvard Law School before launching his career.

Critics of Gonzales' qualifications for a seat on the Supreme Court would highlight his limited judicial experience — two years on the high court in Texas. But the thin paper trail gives opponents scant insight into his judicial philosophy and thinking on major issues of the day to use against him.

Critics also may question his close relationship with Bush and whether that might jeopardize his independence or influence his court rulings.

During an online chat the White House sponsored earlier this year, Gonzales' answer to a question about his new job suggested an awareness of his changed role within the administration.

"While I was counsel to the president, I served as the president's lawyer. As attorney general, my primary allegiance is now to the Constitution and the American people," he replied.

Described as not being ambitious, Gonzales told senators at his confirmation hearing in January: "Let me make clear. I'm not a candidate for the Supreme Court."


President Bush's father considered Edith Hollan Jones for a vacancy on the Supreme Court in 1990 but instead nominated David H. Souter. The announcement of Sandra Day O'Connor's retirement raises the possibility that the president would nominate a woman — and the brainy, hard-line conservative Jones could be his choice.

Jones espouses a judicial philosophy that underscores the adage that less is more.

"The federal judiciary has an important but ultimately limited role in society," she said in an interview with Douglas K. Moll in the November/December 2001 issue of the Houston Lawyer. "I favor legislative authority over judicial authority. We have an obligation to make law as clear as possible. It is law to guide all of the people."

Jones, 55, has served on the New Orleans-based 5th Circuit U.S. Court of Appeals since 1985 when President Reagan tapped her for the post. She has ruled and written on a range of cases, including states' rights, abortion, endangered species act and sexual harassment.

Among her notable opinions:

- McCorvey v. Hill in 2004. Norma McCorvey was Roe in the landmark 1972 case that legalized abortion. She asked the court to overturn the ruling, arguing that abortion has a detrimental effect on women's long-term emotional state.

The court dismissed the motion, but Jones wrote.

"If the courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' is far more risky and less beneficial, and the child's sentence far more advanced, that the Roe court knew."

She called the Roe decision an "exercise of raw judicial power."

In a speech sponsored by the Federalist Society in January 2003, Jones said the Supreme Court's decisions since the 1960s have been at odds with American values. She talked of the "modish, untested philosophical notions and extreme libertarianism that would have left the (Constitution's) framers aghast."

The Warren Court "extravagantly assumed the power to dictate new 'rights' not expressly stated in the Constitution and in so doing foisted its philosophical vision on the United States with consequences far beyond the Court's imagining," Jones said.

Born in Philadelphia, her family moved to San Antonio where she competed on the debate team and participated in extemporaneous speaking at Alamo High School.

She headed north — way north — to Ithaca, N.Y., to attend Cornell University and then got her law degree from the University of Texas. Upon graduation in 1974, she worked at the law firm of Andrews, Kurth, Campbell & Jones in Houston, handling bankruptcy work. She was the firm's first woman partner, an achievement that occurred while she was on maternity leave. She has two sons.


The 51-year-old Luttig is considered a solid conservative choice. The Texas native worked in the Justice Department during the first Bush administration and has served on the 4th U.S. Circuit Court of Appeals in Richmond, Va.

The self-described legal nerd wrote the 1999 4th Circuit decision that struck down a key provision of 1994 Violence Against Women Act. The Supreme Court agreed on a 5-4 vote that Congress overstepped its bounds in giving rape victims the right to sue their attackers for monetary damages.

In that ruling and others, Luttig has been a defender of states' rights to set their own policies — a hallmark of Chief Justice William H. Rehnquist's jurisprudence.

Criminal cases and rendering justice are more than theoretical exercises for Luttig, whose father was murdered in a carjacking more than a decade ago.

In 1994, Napoleon Beazley, 17, confronted businessman John Luttig in the driveway of his Tyler, Texas, home and shot him twice in the head. Luttig's wife, Bobbie, was shot at and crawled beneath the couple's Mercedes Benz and played dead.

In an interview with the Tyler Morning Telegraph, the younger Luttig said his father was a compassionate man who would have given his car to Beazley. He also testified at Beazley's trial, saying, "My dad was my hero. He still is my hero. I worshipped the ground he walked on. I still do."

Beazley was executed in 2002 after the Supreme Court deadlocked 3-3 on his appeal to stop the execution. A tie allows an execution to proceed.

Three justices recused themselves from the case — Antonin Scalia, Clarence Thomas and David Souter.

The younger Luttig had clerked for Scalia from 1982-83 when Scalia was a member of the U.S. Court of Appeals for the District of Columbia Circuit. In 1991, during the rancorous Supreme Court nomination fight over Thomas, Luttig helped shepherd the nominee through the process.

The Supreme Court is familiar territory for Luttig.

He served as a law clerk to Chief Justice Warren Burger from 1983-84 and a special assistant to the chief justice from 1984-85. After four years in private practice, Luttig worked in the Justice Department in the first Bush administration and was assistant attorney general, Office of Legal Counsel.

The Virginia resident graduated from Washington and Lee University and received his law degree from the University of Virginia. In 1991 President Bush made him the youngest federal appeals court judge — at age 37.


A respected conservative legal scholar, McConnell, a judge on the Denver-based 10th U.S. Circuit Court of Appeals, enjoys bipartisan support in the academic community. He opposed President Clinton's impeachment and the Supreme Court's 2000 ruling in Bush v. Gore that made George W. Bush the president.

Liberal interest groups are wary of McConnell because he is personally opposed to abortion. He has criticized the legal reasoning in Roe v. Wade and as a law professor, used Life magazine photos of fetuses to spark student discussion of whether abortion amounts to a taking of human life.

During his 2002 Senate confirmation hearing for the federal appeals court, however, McConnell insisted he would follow precedent in upholding Roe.

"The abortion question is completely settled," he told senators. "The only avenue for change is through constitutional amendment. ... It is not going to happen." At another point, he stated: "It is settled law. I am committed to enforcing and obeying that."

After McConnell was questioned by the Senate Judiciary Committee, Democratic Sen. Charles Schumer (news, bio, voting record) of New York said that while he disagreed with many of McConnell's positions, the nominee "showed himself to be more of an iconoclast than an ideologue" in his candid discussion of his views.

His writings advocate ending the rigid separation of church and state that prevailed in the 1970s, and he thus supports school vouchers. That shift to a more "neutral" state approach to religion is central to the Bush administration's goal to funnel more government money to religious social service programs.

The self-described theologically conservative Christian, however, opposed government-sponsored prayer in schools.

McConnell, 50, also is a strong supporter of judicial restraint, arguing that Congress and not the courts should be the authority on defining and enforcing civil rights.

McConnell is not without critics from the political right. Lawyer Andy Schlafly, the son of longtime conservative activist Phyllis Schlafly, recently wrote that McConnell is "every bit as hostile to conservative legal principles as (David) Souter turned out to be." Souter was named to the Supreme Court by the first President Bush and has disappointed conservatives by repeatedly siding with its more liberal members. Schlafly cited McConnell's refusal to say Roe v. Wade should be overturned, as well as a legal philosophy that "hostile to government expressions of faith."


Roberts, who has been on the U.S. Court of Appeals for the District of Columbia Circuit since June 2003, was one of President Bush's least contentious picks for the bench.

A former Rehnquist clerk, Roberts was associate counsel to President Reagan from 1982-86 and then served in the first Bush administration, arguing cases before the Supreme Court from 1989-93.

During the Clinton administration, Roberts became a highly sought-after private lawyer in Supreme Court cases, representing clients such as the National Collegiate Athletic Association in a discrimination case, and carmaker Toyota in winning limits on a disabled workers claims.
Roberts had been in line to join the appeals court in 1992, but his nomination during the first Bush administration died in a Democratic-controlled Senate.

Roberts, 50, has generally avoided weighing in on disputed social issues. Abortion rights groups, however, have maintained that he tried during his days as a lawyer in the first Bush administration to overturn Roe v. Wade.

Roberts did help write a brief that stated "we continue to believe that Roe was wrongly decided and should be overruled." Pressed during his 2003 confirmation hearing for his own views on the matter, Roberts said: "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Roberts' nomination to the appellate bench attracted support from both ends of the ideological spectrum.

Some 146 members of the D.C. Bar signed a letter urging his confirmation, including officials from the Clinton administration. The letter stated: "He is one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate. He is also a wonderful professional colleague both because of his enormous skills and because of his unquestioned integrity and fair-mindedness.

A native of Buffalo, N.Y., Roberts received his undergraduate and law degrees from Harvard.


Wilkinson, 60, another prospect from the 4th Circuit, has been consistently conservative in his rulings since being put on the court by President Reagan in 1984.

For example, he was part of a panel that ruled in 2003 that the government could indefinitely detain without legal rights American citizens captured overseas in the war on terror. The Supreme Court reversed that decision, with moderate Justice Sandra Day O'Connor's blistering statement, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

The Supreme Court agreed with Wilkinson, however, in his 1987 ruling that struck down a city minority set-aside program.

In his book, "One Nation Indivisible: How Ethnic Separatism Threatens America," Wilkinson explains his opposition to affirmative action, which he says is "the most dangerous of policy prescriptions for a multi-ethnic nation." He argues that such policies separate rather than unite the many races, and advocates for a celebration of multiculturalism and diversity.
He has less clear-cut views on the issue of reproductive rights.

Those who argue that Wilkinson supports Roe v. Wade point to a decades-old article he co-wrote in which he said that "although Roe has been severely criticized, the decision is not an illogical extension of the court's earlier decisions in matters of intimate association."

But in 1998, Wilkinson joined an opinion upholding a Virginia parental notification law for minors seeking abortions. Wilkinson called the law "a very mild and moderate form of regulation."

Unlike many other judges, Wilkinson frequently speaks and writes about his views on affirmative action and other subjects. Before his court career, he was editorial page editor of the Norfolk Virginian-Pilot and taught law at the University of Virginia.
While in law school he ran for Congress as a Republican and lost in 1970.

Wilkinson also:

- Wrote the majority 4th Circuit opinion in 1996 upholding the "don't ask, don't tell" policy that barred gays serving in the military from revealing their sexual orientation.

- Says judicial activism is frequently practiced by both liberal and conservative judges, which he seems to blame on a lawsuit culture that has shifted power from people to the judges (Michigan Law Review article, May 2000).

- Frowns upon what he says is a trend by the Supreme Court of relying on international law or looking to what other countries do when deciding cases. Wilkinson said that while comparisons to other countries cannot be avoided in an age of globalism, "the court's legitimacy must ultimately rest on reliance and reference to the American Constitution and to American democratic outcomes."

- Dissented on a panel of three judges that in 1986 upheld an emotional distress award for the Rev. Jerry Falwell, who was publicly lampooned in Hustler magazine. While criticizing the ad itself, Wilkinson said "nothing is more thoroughly democratic than to have the high and mighty lampooned and spoofed." The Supreme Court later overturned the emotional distress award.

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Blogger RightDemocrat said...

With the resignation of Justice O'Connor, Bush will probably try to pick a staunch conservative in the mold of Scalia or Thomas but without much of a paper trail. There will be extensive fund raising efforts and media advertising from ideological pressure groups on the both sides opposing and promoting confirmation of the nominee. I think that they will make a careful choice and you will not see another Bork or Ginsberg scenario.

As a generally pro-life Democrat, I am hoping that Roe v. Wade will be overturned. I would like to see abortion policy returned to the State Legislatures where it belongs. If Roe v. Wade is overturned though, the hard-line pro-lifers are likely to be disappointed. Many states may pass more restrictive abortion laws, but none will pass a law with no exceptions and most will continue to permit first trimester abortion. One great positive is that abortion will be eliminated as a major issue on the federal level. Democrats will benefit as more single issue voters were pro-life and working class voters return to the Democratic fold.

While I am not losing sleep over the possibility of a very likely reversal of Roe v. Wade or a law and order stance on criminal justice issues by a more right leaning Court, it is a frightening possiblility that the new Justice could be a staunch economic libertarian who believes that labor laws and other forms of governmental regulation of economic activity are un-Constitutional. Justices Thomas and Scalia already have strong economic libertarian leanings and we could eventually with the prospect of other vacancies see a court that declares government programs that benefit the less fortunate and basic regulatory actions by government declared un-Consitutional (as the Supreme Court tried to do during the New Deal era). If that happens, we could enter an era of right-wing judicial activism that could attain what was impossible to acheive at the ballot box.

As a rightist by Democratic standards, I would welcome many of the socially conservative decisions from a right leaning court relating to life, the family unit and the criminal justice system. I part company with the right when they advocate laissez faire capitalism, bash labor unions and eliminate the social safety net for workers. I hope that despite the cynical selection process geared to acheiving ideological goals that we find justices who not only have great intellect but have compassion as well.

12:44:00 AM  
Anonymous Mark said...

RightDemocrat makes a lot of good points. I agree that the reversal of Roe will not automatically make abortion illegal (that is a fact) and I don't think it would be that serious of an issue. In fact, the Casey v. Planned Parenthood case of 1992 created so many loopholes in reproductive privacy law that Roe is actually no longer good law. When it comes to abortion rights, Roe no longer governs, Casey does.

I do however disagree with RightDemocrat on the issues presented in Roe. While I also disagree with abortion, I do not see Roe as an abortion rights case. It is a privacy case, and liberals would be wise to argue it this way. When liberals argue that Roe is an abortion rights case, they lose, and they lose badly.

Essentially the two camps view the right to privacy this way. Liberals believe that the framers believed that a right to privacy for all Americans is an individual right guaranteed under the US Constitution. Conservatives believe that the framers of the Constitution were limiting the right to privacy which is why they only explicitly listed certain rights of privacy in the 4th, 5th, and 6th Amendments.

The conservatives appear to be wrong. James Madison stated in the Federalist Papers that he did not feel comfortable listing specific rights of privacy in the Bill of Rights because he feared that some in the future may try to make the arguments of today's conservatives. The framers believed in freedom, and while they listed specific examples in the Bill of Rights, they never intended that list to limit our rights and erode our nation's freedoms.

Liberals believe that the Constitution establishes our freedoms and places limitations on government. Conservatives believe that the Constitution places limits on individual freedoms. This is how the Roe decision should be argued if liberals ever hope to win.

2:34:00 PM  
Blogger The Blah Brain said...

Hey, you live in Ithaca? So do I! ha

9:48:00 AM  

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