Happy Thanksgiving!

Which founding father are you?: I am quite pleased with my results.

Which Founding Father Are You?

Scary times ahead: Controversial Italian fertility doctor Severino Antinori claims that a woman pregnant with a cloned embryo will give birth in January 2003.

Ann Coulter (the goddess of conservatism) rules: From Queen Ann's latest column regarding the New York Times' "catfight" with the Fox News Channel over the letter chairman Roger Ailes sent to President Bush nine days after Sept. 11:

"I assume it's superfluous to mention that there is nothing illegal about Ailes giving advice to the president – though admittedly, I have not consulted the 'living Constitution' in the past 24 hours to see if a new penumbra specifically about Fox News has sprouted."

She is sooooo damn good.

A liberal's definition of "diversity": to accept and embrace the viewpoints of minority and counter culture groups, while at the same time excluding or showing outright disdain for traditional or "conservative" viewpoints.

More Supreme Court speculation: A loyal reader of Southern Appeal offers the following insight on the speculation surrounding Chief Justice Rehnquist's retirement:

Stuart Taylor, one of those rare smart and honest Washington-based liberal writers, has contributed another article to the National Journal speculating on President Bush’s first nominee to the Supreme Court.It is interesting because it reflects the more clever version of conventional wisdom (Bush is likely, if unwittingly, to move the Court left), but is ultimately flawed because it relies on cynical liberal assumptions, the biggest of which is this: “[I]f ever a Bush Court overruled Roe, it would be a political disaster for Bush and other Republicans. They would then have to choose between alienating most voters by mounting a futile push to outlaw abortion and alienating their most loyal voting bloc by not doing so. If you were Bush political guru Karl Rove, would that be your goal?”

The assumption is that Bush is in all things, or at least this, entirely Machiavellian: forever keeping the promise of a conservative jurisprudence within sight to motivate his “base” and yet just out of reach, so as not to alienate the larger universe of non-“base” supporters. (This, in turn, is based on the arguably false assumption that a conservative jurisprudence, properly understood, is scandalous to everyone but “wing nuts.”) I will admit that we do not know if Bush ranks appointments to the Supreme Court high among his list of priorities. When Bush takes something seriously – e.g., tax cuts, the war on terrorism, the campaign against Iraq and the “axis of evil” – there is no dissuading him from his appointed goal. Certainly fear of “infuriating liberals and the media” won’t do it. If Bush does not take appointments to the Court seriously, Taylor may well be right. Bush could “compromise” away the opportunity to make an excellent appointment to the Court and his nominee “probably won't make the Supreme Court more conservative, and may well make it more liberal.”

Taylor’s thesis that a Bush nominee will likely move the Court to the left is not new. Jeffrey Rosen, the legal affairs editor of the New Republic, has, with subtlety, suggested the same in the New York Times Sunday Magazine. Promote O’Connor to Chief if Rehnquist retires, they say, and because she is more liberal than he, the Court moves left. The process is accelerated, if in a small increment or two or three, if O’Connor, the weakest link among the more conservative five justices, is replaced by Alberto Gonzales, the White House Counsel who is widely viewed by both conservative and liberal observers to be to the left of O’Connor and has the potential, perhaps, to be the next Blackmun or Stevens or Souter or Kennedy. It’s not for no reason that media-types (think George Stephanopoulos) and Clinton Era attorneys (think Walter Dellinger) have been promoting Gonzales’ candidacy at every turn. And it is the reason the Democrats on the Senate Judiciary Committee have been stalling the candidacy of Miguel Estrada, who Taylor admits “clearly is an intellectual heavyweight.” Surprisingly, Taylor admits that Gonzales is not “regarded as an intellectual heavyweight.”

One assumption that Taylor makes is sound: Bush is likely to appoint a Hispanic to the Court, if not for the center chair. But Taylor proceeds to narrow the field to Gonzales, who has the warm support of the establishment and has seemingly been pre-confirmed by Washington conventional wisdom, and Garza, who “inspire[s] much less enthusiasm in the White House” than Gonzales. He gives little consideration to Estrada “because of his age (41), and lack of judicial experience,” and none to Justice Raoul Cantero of the Florida Supreme Court. The nagging problem for promoters of Gonzales in derogation of Estrada is that though Estrada is younger by Gonzales than a few years, Estrada has a more impressive resume and legal mind. He pressed more into his fewer years. Yes, Gonzales has had a number of high profile positions – i.e., TX Secretary of State, TX Supreme Court – but he has held all of those positions briefly and all because of the appointment of one man, George W. Bush, admittedly Gonzales biggest asset. These offices cannot compare, to those who practice law, with the experience gained by practicing in the US Solicitor General’s Office, which Estrada has done. As for judicial experience, it is not required for a seat on the Court. Recall that Lewis Powell came from private practice and had no prior judicial experience.

So, where Taylor and I part company is in the basic assumption of how important Bush considers the Supreme Court and how cynical he would be about the Court. No president has had a better opportunity to view the judiciary run amok (albeit the state courts in Florida) as a litigant in a vastly important series of cases. Bush is not a lawyer, but the lesson could not have been lost on him. For this reason and because Bush is far more serious than he is credited for by the media, I do not necessarily believe he will squander his opportunity to nominate a constitutionally faithful attorney to the bench. Still, I admit that even if my assumption is correct, Bush could still choose Gonzales out of a sense of personal sympathy and friendship, a famous Bush trait. Someone obviously needs to make the case that Estrada or Cantero or even Garza is the better choice.

Turning to the position of Chief, Taylor says it will likely be either O’Connor (more likely in his estimation) or Scalia (less likely, though still “50%”), because “the grapevine has not spotted anyone outside the Court as a plausible candidate for Bush to promote over Scalia or O'Connor -- although that might not stop Bush from doing it.” The grapevine must be dial-up and not broadband, because it does not take much to think of several names of people with the stature and experience to be Chief: Solicitor General Ted Olson, Hogan & Hartson partner and DC Circuit nominee John G. Roberts, Judges Frank Easterbook and David Sentelle, among others.

Anybody else care to comment on the points raised in this email?

Liquid Courage: You just never know who is going to stop by for a spell at Southern Appeal. It is a testament to the blogosphere that a "Frustrated vegetarian, frustrated democrat, frustrated catholic-turned-frustrated buddhist" (who kinda looks like Winona Ryder) would, sua sponte, link to the blog of a "content" meat eating, ultra conservative republican/federalist, calvinist southern baptist. Ain't life grand? Pay Liquid Courage a visit. You'll be glad you did.

How we do love our shugah: Southerners and sweets, a time honored tradition.

Up for review: The Supreme Court has agreed to decide whether certain advocacy groups can contribute to candidates' campaigns, and to consider when death row inmates with bad lawyers deserve a second chance.

The Federalist Society at 20: From the Washington Post.

Supreme Court update! Breaking news :)

a mad tea-party: I think you can tell a lot about a person from the way she writes. Pay this blog a visit, it's a keeper.

Ralph Neas, Kate Michelman, and Nan Aron: The mid-term election's biggest losers :)

Guess who's back: I have a seven year old son. Anyone care to guess what movie I'll be watching tonight.

And the winner of the "cut off your nose to spite your face" award goes to . . . Reuters reports that the House Democrats are set to elect Nancy Pelosi as their new minority leader.

No sympathy for the devils: Yesterday, the Supreme Court heard oral arguments in the cases of Connecticut Department of Public Safety v. John Doe, 01-1231, and Otte v. Doe, 01-729. The question at issue in these cases is whether some states unconstitutionally punish convicted sex offenders twice, first with jail time or probation, and then by putting their pictures on the Internet. My favorite quip from oral argument comes from Chief Justice William Rehnquist, "Maybe he deserves stigmatization." Amen, brother.

A Sonny Morning in Georgia, A Republican revolution: More on the watershed elections in Georgia.

Excellent email regarding my potential Supreme Court nominees post: Here is a thoughtful email that I received from one visitor to Southern Appeal concerning my list of prospective Supreme Court candidates:

I write to suggest a few more names for your list of potential Supreme Court nominees. Though your excellent list covers most of the obvious "federal" names, it surprisingly misses several interesting players on the state courts.

For instance, there are three justices of Michigan Supreme Court -- Stephen Markman, Cliff Taylor, and Robert Young -- all are talented jurists with scholarly inclinations. Markman has senior experience in the Justice Department and Young might have the same racial appeal as Justice Janice Brown of California, whom you did mention. All three would probably be nominees to the 6th Circuit, but for the war between Senator Carl Levin of Michigan and the White House over federal judicial nominees from Michigan. For those who think pure electoral politics will play a roll in any selection, note that Michigan is a Democrat-leaning state that is within the reach of Republicans. I cannot imagine that the state's trial bar would mourn the loss of one of the three.

There's also newly appointed Florida Supreme Court Justice Raoul Cantero, a native Cuban. He offers an obvious alternative to Alberto Gonzales, who seems to have all the wrong supporters in the media and the quiet support of smart liberals in the activist/academic community, or Miguel Estrada, who may or may not suffer from no prior judicial experience. Here too, the politics are clear: Florida is the linchpin of Bush 43's reelection and Cuban-Americans the cornerstone of his support in Florida. Cantero does not have a judicial record, which may be a plus, but is probably (in my estimation) as conservative as Estrada, which is to say much more than Gonzales.

Plus, I would add two "political" names: Congressman Chris Cox of California and Senator John Kyl of Arizona. Cox was on Harvard Law Review and worked in Reagan's White House Counsel's office. But for the two San Francisco liberals not ascending the leadership latter in Congress (Senators Feinstein and Boxer), Cox would have been nominated to a seat on the 9th Circuit. What he lacks in electoral skills (he has repeatedly failed to move up in the GOP leadership in Congress, despite trying), he more than makes up for in seriousness, scholarship and good judgment. There is precedent for appointing Congressmen to the bench in Thomas Meskill (2nd Circuit) and Abner Mikva (DC Circuit). Democrats (e.g., columnist/agit-prop Mark Shields) have long complained that no one on SCOTUS has won an election (yes, they forget about O'Connor), so Bush 43 could take them up on the idea.

Not that Arizona should always have TWO seats on SCOTUS, but Kyl might make an attractive candidate for the bench. I would also throw into the mix Carolyn Kuhl, a stalled nominee for the 9th Circuit. She is only a trial judge in California right now but has experience in that breeding ground of legal greats, the US Solicitor General's office. One name among the practicing bar: stalled 6th Circuit nominee Jeff Sutton. I fully realize that because of his stellar (and successful) federalism practice he is the object of intense hatred (yes, hatred) by left-wing activist groups, starting with the disability lobby (think Garrett). But unlike John Roberts and Ted Olsen (good men, no doubt), he has built a wonderfully successful national appellate practice from Columbus, Ohio. He is scholarly and a frequent advocate before SCOTUS (for a non-DC based practitioner), and (for the politicians among us) comes from the heartland.

Please keep up the good work.

Ditto. Southern Appeal is fortunate to have such smart readers. These names have been duly added to the list below. Anyone else care to weigh in on the subject?

More potential Supreme Court nominees: I have updated the previous post, so scroll down and check out the newest contenders.

Luttig or Garza?: Interesting article predicting that President Bush will nominate Judge Michael Luttig (4th Cir.) or Judge Emilio Garza (5th Cir.).

From the NRO archives: This past spring, Roger Clegg had these thoughts on "picking the next Justice."

Rehnquist retirement articles: I stumbled across the following articles on Chief Justice Rehnquist's probable retirement at the end of this term from the New York Lawyer; USA Today; Online Athens; North County Times; The Weekly Standard; Redding.com; and the Olympian. I will try to post more articles later.

Thanks!: I want to thank everyone for the kind emails regarding my post on the looming Supreme Court vacancy. A very special thanks to the astute readers who caught a few typos/mistakes in the original post. I really do appreciate y'all pointing those out. Had I known that Howard was going to link over to my humble little blog, I would have spent a little more time proofing. :)

More on potential Supreme Court nominees: Well, Howard Bashman (of 'How Appealing" fame) has kindly linked over to my post outlining who might be in line to replace Chief Justice Rehnquist. So I will take this opportunity to ask anyone who may be visiting "Southern Appeal" to email me with any thoughts you might have on the topic. I will post the best comments later on this evening or early next morning. Thanks for visiting!

Preachin' the truth:: I live by the old adage that when you can't say something better than someone else, don't even try it. In that spirit, consider the following words from Robert P. George today on National Review Online:

All right, my Republican friends. We had a great victory on Tuesday. But let's clear our minds of cant. This is not the time for magnanimity.

Liberals in the Democratic party believe in their causes (however misguided) and are willing to fight for them. They play to win. Contrary, however, to what some Republicans sometimes say, the Democrats (well, most of them, anyway) do not believe in winning merely for its own sake. They believe in winning in order to advance their ideological goals and achieve their policy objectives.

On Tuesday we won. But if our victory is to mean anything, we must act with determination to advance our causes. You can be certain that the ideological hard Left — whose grip on the apparatus of the Democratic party was strengthened by the results on Tuesday — is prepared to act with nothing less than determination to stop us.

Good stuff.

Replacing the Rehnquisitor: The worst kept secret in Washington, D.C. these days is that Chief Justice William H. Rehnquist will retire from the United States Supreme Court in the summer of 2003. This, of course, raises three questions: (1) who will President Bush nominate to the Supreme Court?; (2) who will President Bush nominate to replace Rehnquist as Chief Justice?; and (3) will President Bush "kill two birds with one stone?" There is a great deal of speculation that President Bush will appoint one person to fill the vacancy and serve as Chief Justice. While this is possible, I doubt that it will happen.

The next Chief Justice--Process of elimination?:

Let's start the analysis with who won't get picked. We can immediately eliminate the gang of four--Stevens, Souter, Ginsburg, and Breyer. In the words of Papa Bush (or Dana Carvey), "could do it, not gonna do it, wouldn't be prudent." This leaves O'Connor, Scalia, Kennedy, and Thomas. Given Justice O'Connor's ongoing health problems, and that she will most likely drop off the Court next, I doubt very seriously that she will be given the nod. It's possible, but not likely. I also cannot imagine that President Bush would even consider naming Justice Kennedy as Chief Justice. The Bush Administration is stacked with members of the Federalist Society, many of whom are, to put it mildly, less than thrilled with Kennedy's performance on the high bench. By process of elimination, my guess is that Bush will pick either Scalia or Thomas to be Chief Justice. Before any of y'all dismiss the idea out-of-hand, keep in mind that all during the 2000 presidential campaign, then-Governor Bush told voters, in no uncertain terms, that he would appoint judges/justices in the mold of Scalia and Thomas. It would be a tad odd for Bush to make such a statement as a candidate for president, time and time again, and then decline to appoint either to the Chief Justice post. Judicial appointments are the one issue that the Republican base cares the most about. Chief Justice O'Connor or Kennedy will simply not do. If I had to guess, I suspect that Bush will select Scalia. But he could also make history by appointing the first African-American Chief Justice, Clarence Thomas. Talk about having the "last laugh."

Filling the vacancy:

At this point, it is anyone's guess who President Bush will appoint to serve as the Court's next justice. Here are a few names floating around the web, and my guess as to how likely it is that any of them will be nominated:

Definitely on the short list:

(1) Alberto Gonzales: White House Counsel.

(2) Emilio Garza: Judge, United States Court of Appeals, Fifth Circuit

(3) Edith Jones: Judge, United States Court of Appeals, Fifth Circuit

(4) J. Michael Luttig: Judge, United States Court of Appeals, Fourth Circuit

(5) J. Harvie Wilkinson: Chief Judge, United States Court of Appeals, Fourth Circuit

(6) Theodore Olson: Solicitor General

Dark Horse Candidates

(1) Samuel A. Alito: Judge, United States Court of Appeals, Third Circuit

(2) Janice Brown: a California Supreme Court justice, who was among the first African-Americans on that bench.

(3) Paul V. Niemeyer : Judge, United States Court of Appeals, Fourth Circuit

(4) Diarmuid O'Scannlain: Judge, United States Court of Appeals, Ninth Circuit

Often mentioned and brilliant, but unlikely:

(1) Frank Easterbrook: Judge, United States Court of Appeals, Seventh Circuit

(2) Alex Kozinski: Judge, United States Court of Appeals, Ninth Circuit

(3) Richard Posner: Judge, United States Court of Appeals, Seventh Circuit

Would have been candidates if those devil dems had not held up their nominations for over a year

(1) Miguel Estrada: Nominated by President Bush to serve as a judge on the United States Court of Appeals for the D.C. Circuit

(2) Professor Michael McConnell: Nominated by President Bush to serve as a judge on the United States Court of Appeals for the 10th Circuit

(3) John Roberts: Nominated by President Bush to serve as a judge on the United States Court of Appeals for the D.C. Circuit

Honorable mentions

(1) Viet Dinh: "[A] former professor at Georgetown University who now serves as an assistant attorney general in the Justice Department . . . [and] who would be the first Asian-American appointed to the Supreme Court."

(2) Richard Epstein: Professor, University of Chicago Law School

(3) Charles Fried: Professor, Harvard Law School

(4) Senator Orrin Hatch (R-Utah) : Wants to be Chief Justice as well

(5) Douglas Kmiec: Dean of the Catholic University law school

(6) William Van Alstyne: Professor, Harvard Law School

(7) Eugene Volokh: "[A] very young candidate from UCLA's law school," and a fellow blogger

My additions

(1) Judge Kenneth W. Starr: Yeah, I know. He can't be confirmed. So what. He still deserves it.

(2) Joel M. Flaum: Chief Judge, United States Court of Appeals, Seventh Circuit

More on this later . . .

Reader additions:

(1) Alice Batchelder: Judge, United States Court of Appeals, Sixth Circuit

(2) Danny Boggs: Judge, United States Court of Appeals, Sixth Circuit

(3) Raoul Cantero: Justice, Florida Supreme Court

(4) Chris Cox: Congressman (Cal.-R)

(5) John Kyl: Senator (AZ-R)

(6) Carolyn Kuhl: Nominated by President Bush to serve as a judge on the United States Court of Appeals for the Ninth Circuit

(7) Stephen Markman: Justice, Michigan Supreme Court

(8) Cliff Taylor: Justice, Michigan Supreme Court

(9) Robert Young: Justice, Michigan Supreme Court

(10) Jeffrey Sutton: Nominated by President Bush to serve as a judge on the United States Court of Appeals for the Sixth Circuit

Who's afraid of President Bush's judicial nominees? John Dean, apparently. For your fresh cup of Monday morning hyperbole click here.

Nancy Pelosi for minority leader: John J. Miller of National Review explains why Republicans should pray for Nancy Pelosi to become the dems next minority leader.

Thank God for Georgia: The ripple effect from this week's elections in Georgia continues. Two Democratic state senators are expected to announce today that they will switch parties. If the Republicans are able to convince one other Democratic senator to cross the aisle, they will take control of the Senate. So let's recap recent events. Saxby Chambliss defeats incumbent Max Cleland to become Georgia's junior U.S. Senator. Sonny Perdue, in a truly stunning upset, defeats incumbent "No longer King" Roy Barnes to become the first Republican governor of the state since reconstruction. Tom Murphy, the speaker of Georgia's House of Representatives since 1974, was defeated by Bill Heath, a 43-year-old Republican farmer and engineer from Bremen who has never held political office. And the Republicans may soon control at least one half of the Georgia General Assembly. Life is good in the peach state.

BIG SMILE :) To quote the great prophet Bono "It's a beautiful day. Don't let it get away." The Republicans have taken back control of the United States Senate, and President Bush will now be able to push through his conservative judicial nominees. Hee Hee. I absolutely love it. I can't wait to watch Patrick Leahy, Ted Kennedy, Chuckie Schumer, et al., scream like raving lunatics at the committee hearings of Miguel Estrada, Michael McConnell, Priscilla Owen (oh yes, she will be renominated), etc. Chief Justice Scalia or Thomas sounds good as well (more on this later).

Prediction:

Georgia: Saxby Chambliss (R) will defeat incumbent Max Cleland (D) to become the junior U.S. senator for the State of Georgia--48.5% to 47.5%.

Why Coleman will be Minnesota's next U.S. senator: As usual, Bill Bennett puts things into perspective.

The Amar brothers plead with the Senate Judiciary Committee to confirm McConnell: Akhil and Vik Amar, law professors and democrats who voted for Al "I really am still relevant" Gore, offer this persuasive endorsement of Professor Michael Mcconnell's nomination to the U.S. Court of Appeals for the Tenth Circuit.