Who will be Bush's
Supreme Court nominee?

Critical view of Roberts
Assessing John Roberts, Seth Rosenthal, legal director of the Alliance for Justice, a coalition of liberal groups that has opposed many Bush nominees, said, “He’s only been on the bench two years, so the most important thing is to ensure that the Senate very carefully question him about his judicial philosophy.”

Rosenthal noted that Roberts had, while serving in the Justice Department in both the Reagan and George H. W. Bush administrations, “helped craft the legal policies of those administrations, policies that would weaken the voting rights of African-Americans, undo the reproductive rights of women, and eviscerate congressionally created litigation rights of environmentalists.”

In 2002, the Washington Post editorial page, which often takes a liberal view of things, waxed enthusiastic about McConnell, calling him, “One of the best qualified nominees a president of either party has advanced for a court of appeals vacancy in many years… the sort of person who would bring intellectual range, depth and independent-mindedness to the bench.”

A Senate Republican aide involved in judicial nomination matters, who spoke on condition of anonymity, voiced skepticism about McConnell’s view of stare decisis, the principle that judges should give deference to precedents established in previous cases.

“There’s lots of suspicion he loves stare decisis so much that he’d never touch Roe,” the GOP aide said of McConnell. “That’s the dividing line: whether he’s willing to operate with an open mind, or whether he is so pledged to stare decisis that he couldn’t have an originalist view,” that is, a view that the Constitution must be interpreted in line with what the authors of specific constitutional provisions intended.

While McConnell did write in 1998 that Roe v. Wade was “an embarrassment to those who take constitutional law seriously,” the GOP Senate aide said, “that doesn’t mean much if he is a firm believer in stare decisis.”

Luttig's critique of 'activism'
Luttig, appointed to the appeals court when he was only 37, has spoken out eloquently on the need for judges to be non-political. “There is no such thing as ‘good’ or ‘justifiable’ judicial activism; all ‘activism’ is in defiance of law — ‘law’ defined as the politics of the people, not the politics of individual, unelected, life-tenured judges,” Luttig said in a 2003 speech to the American Consitution Society.

But Rosenthal takes issue with some of Luttig's rulings: “In the name of state’s rights, he takes a radical, muscular view of the court’s power to strike down popularly supported federal laws; but on the other hand he takes a radically restrictive, anemic view of federal courts’ power to remedy violations of constitutionally protected rights and freedoms. For instance, he voted to strike down Virginia’s partial birth abortion act.”

The confirmation process has become a campaign and the nominee must sell himself to the American people. One error Bork made in his confirmation hearings was to sound like a chilly academic.

When Sen. Allan Simpson, R- Wyo., one of Bork’s supporters on the Judiciary Committee, asked him why he wanted to be a justice of the Supreme Court, Bork said, “It would be an intellectual feast just to be there.” After his Senate defeat, Bork admitted that answer was a mistake.

Given the television-driven nature of confirmation hearings, there’s a value in having a personal story to tell.

Tragic life experience
Judge Luttig has had a wrenching life experience which may make him a more empathetic figure than other nominees.

Luttig’s father was murdered in a carjacking in Tyler, Texas in 1994. Although Luttig might be reluctant to talk about his father’s murder in a confirmation hearing, every profile of him would mention it.

Sekulow said, “When you look at Mike Luttig’s family tragedy that he has dealt with, people can relate to those things. Others have stories too: Mike McConnell went to an inner-city church and worked with inner-city youth, there’s a lot of good stories.”

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