Since Judge J. Michael Luttig has been mentioned many times for a Suprme Court judgeship and is one of the most conservative judges around, I think it's good news that he submitted his resignation today. He will now be Executive Vice President and General Counsel for Boeing.

His letter of resignation to President Bush is here (pdf).

It sounds like pay was a big factor in his decision. He writes that he has two children approaching college age, and his highest obligation is to his family.

All has been quiet on the judicial nominations front for a while. A big fire is about to erupt. Two more controversial judges are up again for confirmation -- Terrence Boyle and Brett Kavenaugh. Democrats aren't happy with either, but they are particularly incensed about Boyle.

Democratic leaders said they certainly would filibuster one of the nominees, Terrence W. Boyle, and might filibuster the second, Brett Kavanaugh, if Republicans refuse to call him back for a second hearing before the Senate Judiciary Committee. The partisan rhetoric was the strongest signal yet that the Senate might revisit the brinkmanship that brought the chamber to the edge of crisis a year ago, when a bipartisan group of 14 members crafted a temporary cease-fire.

The Bush family has been trying to get Boyle on the appellate bench since 1991. Bush I was unsuccessful. Now it's his son's turn.

by TChris

Is cursing at an errant parker really a sign of mental illness, or just of bad manners?

The state Supreme Court ordered a psychiatric exam Thursday for a judge accused of violating the state judicial code by cursing at Detroit Deputy Mayor Anthony Adams when he parked in a spot reserved for judges.

Perhaps the exam was ordered because this wasn't Judge David Bradfield's first angry encounter in a parking lot.

The retired judge [who investigated Bradfield] also concluded that Bradfield committed misconduct in October 2002 when he became hostile with a parking attendant.

by TChris

Finding a silver lining in the Supreme Court's refusal to review Jose Padilla's claim that his detention as an enemy combatant was unconstitutional, Michael Dorf speculates that "Chief Justice Roberts may be more committed than most observers would have guessed, to a substantial judicial role in defending civil liberties against executive encroachment." Dorf is heartened by Roberts' decision to join the concurring opinion of Justice Kennedy, which "warn[ed] the government that the Supreme Court and the lower courts stand ready to enforce Padilla's rights--including the right to a speedy trial and to habeas corpus review--should the government continue to dither with Padilla."

These are, of course, nothing more than speculations. What is not speculation is the fact that the new Chief Justice--like every one of his predecessors--has already put substantial distance between himself and the positions of the Administration that just months ago nominated him to the Court.

Raw Story has the transcript and audio link to the NPR segment this morning in which former Justice Sandra Day O'Connor attacks Republicans for threatening our constitutional freedoms and the judiciary.

In an unusually forceful and forthright speech, O'Connor said that attacks on the judiciary by some Republican leaders pose a direct threat to our constitutional freedoms

O'Connor singled out Tom DeLay, although not by name, for his Justice Sunday diatribe against judges.

Justice Stephen Breyer says there are no partisan politics on the Supreme Court, only differences of analysis and interpretation.

"I haven't seen that kind of politics in the Supreme Court. Zero. It doesn't exist," he said.

What there is according to Breyer, are differences in the methods the Justices employ in arriving at their decisions:

Supreme Court Justice Stephen Breyer says he frequently makes decisions about a law's constitutionality by considering its purposes and consequences, which puts him at odds with fellow justices who try to adhere strictly to the language of the Constitution.

He said there are six factors that go into evaluating a law:

The Washingtonian reports that the reason Bush didn't nominate Ted Olson for the Supreme Court was his age: at 65, he's considered too old. Olson also is engaged to be married.

Some four years after his wife, author Barbara Olson, was killed on the hijacked American Airlines flight that crashed into the Pentagon, former solicitor general Ted Olson is engaged. He will be married this fall to Lady Evelyn Booth, who has been his social companion since they met at the Kentucky Derby in 2002. A native of Louisville, Lady Booth was named for an aunt.

Olson left the solicitor general’s office last year and was considered a candidate to succeed William Rehnquist as chief justice before the job went to John Roberts.

Judge vetters saw Olson, 65, as too old, although many in his Norwegian family have lived into their nineties. His mother is going strong at 85. Olson still sports a thick shock of sandy Viking hair and zips around Great Falls in a silver Mercedes SL 600.

by Last Night in Little Rock

The N.Y. Times today has an article today with the amusing title: So, Guy Walks Up to the Bar, and Scalia Says..., also commented on Rawstory.com as Study: Scalia 19 times as funny as Ginsburg. Somebody thought it was important enough to do a study of the number of times that Justices somehow evoke laughter in the Supreme Court. Somebody has too much time on his hands.

Scalia has a sharp, even biting, wit, no doubt about it. I try to make it to the Supremes once a year for Fourth Amendment arguments, being a Fourth Amendment buff, so I've seen him in action. Sometimes it's funny, and sometimes it hurts.

My last argument was in 1995, and before me was Vernonia School Dist. No. 47J v. Acton, the first school drug testing case. Acton's lawyer was an earnest young man, and he was quite nervous. I do not remember the exact phrasing of the Scalia question, but the young man answered by referring to his nervousness and urinating on himself while he was standing there, and everybody thought his self-effacing comment was really funny, and it broke the ice. The kid did a good job, but he lost, but not unexpectedly: A cert. grant means an 80% likelihood of reversal.

by TChris

When Sen. Frist was last strutting about, threatening Democrats with the “nuclear option” if they even thought about filibustering a Bush nominee to a federal judgeship, Republicans seemed to hold unassailable power. These days, Frist’s threats seem hollow. In the words of our prophetic president: “Bring it on.” Democrats may finally have developed the backbone to fight against the Republican tactic of changing rules they don’t like.

Minutes after the Senate returned from a three-week vacation [Sen.] Byrd challenged Frist, a Tennessee Republican, in an unusually pointed floor debate.

"If the senator wants a fight, let him try. I'm 88 years old but I can still fight and fight I will for freedom of speech," Byrd said.

by TChris

"Republicans close to the White House" tell the Washington Post that President Bush is "poised" to announce tomorrow the candidate who will replace Harriet Miers as the candidate to replace Justice O'Connor. Quick action, calculated to distract the news media from the Plame investigation, may also be calculated to consolidate the Republican Party behind a nominee who is trusted to advance a conservative agenda.

The Post article and this NY Times article short list the usual suspects. Both place Samuel Alito Jr. at the top of the list. From Wikipedia:

His ideological likeness to United States Supreme Court Associate Justice Antonin Scalia has earned him the nickname "Scalito."

If Bush does announce a name tomorrow, will it supplant the Plame story, or (with the encouragement of bloggers) will the media be motivated to cover both stories with equal vigor?

by TChris

The president announced his intent to select a replacement for Harriet Miers in a “timely manner.” Miers was torpedoed by extremist critics in the president’s own party, raising the fear of an appeasement pick.

Sen. Barack Obama (D-Ill.) cautioned Democrats to be careful what they wished for. "For those who were concerned that Harriet Miers was too conservative, you should not be too sanguine about this," Obama said.

Dick Durbin warned that the president is “almost certain to turn to a nominee that is embraced by the conservative wing of the Republican Party.” Harry Ried cautioned the president not to travel that road:

by TChris

In the context of Harriet Miers’ nomination to the Supreme Court, Edward Lazarus argues that liberals should seize the opportunity to dismantle myths about judging that the right wing has propagated for a couple of decades.

In recent years, conservatives have -- with a fair amount of success -- painted liberals as having defiled the judiciary by overstepping the line between law and politics, and thereby substituting their own policy judgments for the "real" meaning of federal statutes or the Constitution. And Democrats have been far less successful in conveying to the public the view that legal interpretation is inherently politically-influenced -- even despite the fact that any objective study of both liberal and conservative judicial decisionmaking inexorably leads to just such a view.

This is not to say that judges have license to rewrite statutes or to ignore the plain text of the Constitution.