Supreme Court Justice Ruth Bader Ginsberg spoke out today on the potential replacement for retiring Justice Sandra Day O'Connor. She said:

• She'd like to see a woman nominated but not any woman would do. She said it's important for the nominee to respect human and women's rights.
• She has a list of suitable women nominees, but President Bush hasn't asked her opinion
• With respect to Judge John Roberts' expression of doubt on consulting foreign law, she defended the practice and said,

"I will take enlightenment wherever I can get it," she said. "I don't want to stop at a national boundary."...When reminded that Roberts has indicated he disagrees with the practice of referring to foreign laws, Ginsburg said it appeared he "is a man who does listen and is willing to learn."

by TChris

Sen. Arlen Specter today advised the president to ask Justice O'Connor to stay on the Supreme Court for the coming term. He says O'Connor is willing to do so, but the president ... not so much.

He said Bush was noncommittal on his proposal that she stay on, but that his body language was not positive.

Whether the "body language" consisted of an upraised middle finger isn't revealed in the linked story.

by TChris

Conservative critics of the Supreme Court have derided its occasional citation of cases from foreign courts to make a point about the law of the United States. "Who cares what the rest of the world thinks?" they ask mockingly. "Our law is ours alone."

Law Prof. Ann Althouse points out in a NY Times op-ed piece that the dispute is much ado about nothing. Careful thinking can be guided by a variety of sources, not all of which are precedents from American courts:

by Last Night in Little Rock

As reported on Law.com in an article from AP, President Bush is meeting Wednesday with "key Senators," from both sides of the aisle, about Justice O'Connor's replacement.

Law Prof Michael Froomkin at Discourse.Net predicts that Bush's next appointment will be an extremist who will re-ignite the culture wars.

There are a lot of people who think that George Bush's political weakness will result in a more moderate appointment to replace Justice O'Conner to the Supreme Court. They are deluding themselves. In fact, it's worse than wishful thinking: it's exactly backwards.

The weaker Bush gets, the more certain it is that he (or Cheney or Rove) will appoint someone certain to reverse Roe v. Wade.

by TChris

The NY Times faithfully reprints 55 pages of speeches given by members of the Senate Judiciary Committee today, proving only that this was their day, not John Roberts.’ Pages 55 to 57 (beginning here) reprint Judge Roberts’ opening statement. It is, as one would expect, unremarkable. He spoke of the virtues of precedent and of the limited role judges play in a political process. Judges, it seems, are little more than scriveners who consult the law and apply strict logic to resolve legal disputes in the most reasonable way. All true in theory, but choosing the most reasonable application or interpretation of a law often depends upon which of two or more competing policies the judge favors. If that weren’t true, smart and logical judges would all agree on the correct outcome in every case. The central role played by judicial philosophy (the collective policy preferences favored by an individual judge) went unacknowledged in today’s statement.

Sentencing Law and Policy reports on "buzz" that President Bush may pick Alberto Gonzales or Larry Thompson for the second Supreme Court vacancy.

I would support Larry Thompson's nomination for the Court. I supported him when he was under consideration for Ashcroft's job. I know him through our joint participation in criminal defense organizations over the years, particularly the American Board of Criminal Lawyers. I have had long discussions with him -- and his wife -- at several dinners at these meetings, and I believe he is dedicated, principled and up to the job. I've previously said he would receive my endorsement for Supreme Court Justice:

So, it turns out that while thousands of people languish in our jails for abusing prescription drugs, the late Chief Justice Rehnquist had a habit of his own: Placidyl. I thought they stopped making the drug when they stopped making Quaaludes - they were very similar. I never knew anyone who took it for pain, only to party. Guess I was wrong.

And for the nine years between 1972 and the end of 1981, William Rehnquist consumed great quantities of the potent sedative-hypnotic Placidyl. So great was Rehnquist's Placidyl habit, dependency, or addiction—depending on how you regard long-term drug use—that by the last quarter of 1981 he began slurring his speech in public, became tongue-tied while pronouncing long words, and sometimes had trouble finishing his thoughts.

....The standard dose for adults is 500 milligrams, taken at bedtime. Rehnquist initially took 200 milligrams daily but by 1981 was taking 1,500 milligrams a day.

But he sat on the bench, and affirmed drug sentence after drug sentence. Nice. Here's more on Rehnquist's Placidyl dependency:

by TChris

Howard Kurtz surveys (with, thankfully, little comment of his own) various reactions to the president’s decision to substitute the conservative John Roberts for the conservative William Rehnquist. The reaction most likely to stimulate severe illness comes from Pat Robertson, who is “thankful” that Hurricane Katrina may have “brought [Roberts] some good.” Perhaps Robertson was praying for a disaster that would kill thousands so that senators would be distracted from Roberts’ confirmation hearings.

Slightly less stunning is conservative Bill Kristol’s concern that by swapping a conservative Roberts for a conservative Rehnquist, the president may feel pressure to nominate a more moderate candidate for Justice O’Connor’s seat. Kristol thinks that would be a betrayal of the president’s base, and he fears that Attorney General Gonzales might be the “moderate” who would emerge from that scenario. The notion that Gonzales, who regards the Geneva Conventions as "quaint," is insufficiently conservative to satisfy the right wing is astonishing. Maybe the president should just go with his base and nominate Pat Robertson instead.

by TChris

Mark Levin gripes about the Supreme Court in this Newsweek interview. He argues that the Supreme Court is the “most powerful” branch of government and that its power is “unchecked.” In fact, the Supreme Court has the final word only when it interprets the Constitution. If the Court interprets or applies a statute in a way that Congress doesn’t like, Congress can (and frequently does) change the statute, effectively nullifying those Court decisions.

While complaning that the Court has usurped power from the states and from the federal legislature, Levin cites Justices Scalia and Thomas as his current heroes. It’s interesting that he didn’t mention Rehnquist, who led the mini-revolution in Commerce Clause jurisprudence, invalidating two pieces of federal legislation. Scalia and Thomas helped Rehnquist form the majority in those cases, but Levin fails to explain why he holds his heroes blameless for their own role in a supposed usurpation of federal legislative power.

by TChris

Disregarding his mother's admonition not to speak ill of the dead, Alan Dershowitz discusses the legal legacy of Chief Justice Rehnquist.

So here’s the truth about Chief Justice Rehnquist you won’t hear on Fox News or from politicians. Chief Justice William Rehnquist set back liberty, equality, and human rights perhaps more than any American judge of this generation.

Update: Laurence Tribe takes a friendlier, but still realistic, view:

Crooks and Liars has results of a CBS poll from last week:

In a shift from July, the public now thinks the Senate should consider a Supreme Court nominee’s positions on issues in addition to his or her legal background. According to last week’s poll, 57% said a nominee’s opinions on issues should be considered, while 33% thought the Senate should consider only a nominee’s legal qualifications and background. Even more Americans said a nominee’s position on the issues should be considered than did so during the nomination processes of Clarence Thomas and Robert Bork