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October 27, 2005


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joe p

So who are these potential nominees that would be unacceptable?

Janice Rogers Brown?
Edith Clement?
Miguel Estrada?

Your post comes off as providing cover for the nomination of right-wing ideologues (with stellar credentials, admittedly) if you can't name anyone who would be unacceptable.

Suggesting that "even Democrats in the Senate should support them" is preposterous. If a nominee is known to disagree with Roe v. Wade, and can't say definitively that he won't vote to overturn Roe, then that alone is sufficient reason for a Senator to oppose his nomination. Your post sounds an awful lot like the "every nominee deserves an up or down vote" rhetoric that we heard so much on TV during the Roberts nomination, except now it's "every nominee [with a stellar judicial record] deserves to be confirmed."

Don't reduce yourself to mimicing the TV pundits.


Joe P,

You can't expect politicians to refrain from voting for legislation filled with pork, but that does not mean one cannot legitimately criticize them when they do. McConnell has as good a resume for the job as anyone in the country. Are you suggesting that, despite the resume, anyone who is unwilling to prejudge Roe and state definitively that he or she will not overturn that decision thereby provides a legitimate reason not to confirm? If so, then it is you who sounds like a TV pundit, pretending as if deciding Roe is the only important think the justices do.


I wholeheartedly support Professor Stone's viewpoint here. I had the privilege of taking constitutional law with Michael McConnell at the University of Chicago. Although I did not agree with Professor McConnell views on every subject, I found him extremely fair and open-minded. He also has a reputation as a man of integrity. The fact that he tried to push Elena Kagan's confirmation hearings for the 10th Circuit with Senator Hatch shows his ability to rise above politics to do what he believed was right.

In fact, Kagan (now Harvard Law School Dean and a former Clinton policy advisor) argued on behalf of McConnell when he was up for the 10th Circuit: She wrote, “[a]s you may recall, I was once myself a nominee to the appellate bench. At that time, Michael exerted himself mightily to persuade then-Chairman Hatch to grant me a hearing. He thought that the treatment that the Judiciary Committee gave to many of President Clinton's nominees was wrong. And he acted on that conviction, declining to join in the obstruction, but instead doing his best, regardless of political affiliation, for the people whom he thought would bring credit to the federal bench. I believe that approach says a great deal about the kind of judge Michael would make if you honor
him with confirmation."

Moreover, I believe McConnell would be a smart choice from a political standpoint for Bush. His conservative base would be very excited about McConnell’s 1st Amendment views while McConnell would likely garner significant support from liberals such as Professor Stone. The fact that McConnell received support from over 200 law professors of all political stripes would make him even more difficult to attack (realizing that some of these professors that supported him for the 10th Circuit would not support him for the Supreme Court).

Finally, I am surprise that nobody has brought up the Liz Cheney connection. Liz was a law student at the University of Chicago in the mid 1990s while McConnell was a professor there. Liz may have some strong opinions about McConnell that she has conveyed to the Vice-President. McConnell was almost universally liked by the students for his approach in and out of the classroom as well as his intellectual vigor, so I have to believe this is another small plus for McConnell.

The Law Fairy

Interesting how quickly and easily even liberals can latch onto conservative white men -- with relief! -- as acceptable, even desirable candidates now that the beaten and bloodied Ms. Miers has withdrawn.

One can't help but wonder if this was Bush's plan all along?


Tom, do you believe the issue of the Fall 1995 Con Law I final (and I don't believe the IV final was much better) will be disqualifying?


If nominated, McConnell would be a shoe-in for confirmation.

But he is not going to be confirmed because he said bad things about the only case the President really cares about, Bush v. Gore.

joe p


My point is that Stone's argument is intellectually feeble: "one has to win elections to have the right to make that choice. Given that we have a Republican president and a Republican Senate, and given that these are two exceptionally-highly qualified candidates, even Democrats in the Senate should support them."

Demacratic Senators won their elections, and they have the right to oppose, for whatever reason (my Roe hypo is just an example), any nominee they want.

Stone claims there is no legitimate reason to oppose McConnell on ideological grounds, and his reasoning amounts to regurgitating right-wing pundits' talking points. I think that if a Senator cares deeply about a woman's right to control her body, then a nominee's lack of support for Roe is a sufficient reason to oppose that nominee. Surely those on the right who want Roe overturned believe opposition to Roe is a neccessary qualification for a nominee, so it's not like I'm goign out on a limb to say that Roe is important. Also, take a look at opinion polls gauging the population's desire to overturn Roe. McConnell's view is out of the mainstream of popular thought on Roe, even if, as Stone asserts without support, it is not out of the mainstream of legal thought.

My point is not to argue that McConnell is not qualified - I remain agnostic on that issue - but simply to suggest that Stone's argument is weak.


Joe P,

I agree with your comments as clarified if your point (if I may) is that Senators are political beings, and thus, opposing a nomination for a mere political reason is legitimate. If one thinks that voting on judges imposes a greater duty on Senators, however, then a mere political reason is not necessarily "legitimate," as Prof. Stone appears to be using the term anyway. Perhaps you and Prof. Stone just disagree on this point. I believe that Senators should focus on qualifications with little regard to ideology, even when politically expedient, but perhaps I am asking too much of political beings, or at least presupposing a certain conception of legitimacy and applying it to the reasons Senators do what they do.

joe p


You've said it much better than me, and seem to have pin-pointed our difference of opinion. I certainly believe that political reasons are "legitimate" for the purposes of a Senator deciding whether to approve of a nominee. But I can understand that others might think differently.

Peter Lederer


One of the above comments states:
"The fact that McConnell received support from over 200 law professors of all political stripes would make him even more difficult to attack (realizing that some of these professors that supported him for the 10th Circuit would not support him for the Supreme Court)."

I recall a luncheon at the ABCNY where you spoke to this point. My memory is that you said you would support him for the Court of Appeals, but that the Supreme Court was, of course, another matter.

Have you changed your view? And if so, why?


Some responses to comments:

1. To joe p: Many possible nominees would be unacceptable to me. I would oppose a nominee whose judicial philosophy is "out of the mainstream" of responsible legal thought. I would oppose nominee who is not open-minded. I would oppose a nominee (like Miers) who is unqualified. (In my judgment, justices of the Supreme Court should at the very least be exceptionally able intellectually. Call me an elitist, but there it is.) I would oppose a nominee if I diagree strongly with his or her judicial philosophy and he or she is only marginally qualified. I don't think it advisable to name names, however, unless and until it's relevant. There's no point in going around insulting judges or lawyers who haven't been nominated.

2. To Peter Lederer: You recall correctly. At the time of that luncheon, I said, somewhat flippantly, that the Supreme Court might be a different matter. I haven't so much changed my mind as come to a conclusion. The core of it, I suppose, is that I've come to the view that, in general, I won't oppose a nominee who is extraordinarily qualified and within the mainstream of legal thought just because his or her views differ from my own. The reason is simple. The alternative view overpoliticizes the judiciary and risks undermining the Supreme Court's credibility as an institution. I'm willing to sacrifice agreement (up to a point) for genuine excellence.


Prof. Stone,

I like your recommendations for a conservative president. I would hope Republicans would support a future Democratic President who selected a Laurence Tribe or Dellinger (former solicitor general under Clintron). I'm not a Chicago law school grad and have never met anyone associated with the university. However, we (lawyers) all know who is the most deserving candidate for the Supreme Court - even considering all current Justices: Judge Richard Posner. That is an absolute no-brainer. He is the most qualified candidate in the world. If Bush add any Texas guts, he would select Judge Posner. Judge Posner is the Cardozo of our time.

Cory Hojka


It's interesting that you call Judge Posner as "the Cardozo of our time." The reason that I say this is that Judge Cardozo is not really revered (or despised) for his Supreme Court decisions, but rather for the opinions he wrote on the New York Court of Appeals. There might be some exceptions, but the important thing is that the structure of a court can be as important to a Judge's influence, if not even more so, than the court's place in society.

On the 7th Circuit, Posner has to usually only sway one of two judges to agree with his point of view. On the Supreme Court, Posner would need to convince four of nine justices to agree with him. Therefore, the result of putting Posner on the Supreme Court could, due to his need to build consensus, seriously alter the quality of his opinions that many have come to enjoy and appreciate.

Does this mean that Posner shouldn't end up on the Supreme Court? Probably not, but still it demonstrates that other considerations should be made by the President before selecting a nominee. For example, one of the qualities that many praised about John Roberts was that he was a consensus builder (similar to the late Chief Justice William Rhenquist) in addition to his abilities in legal analysis.

Honestly, I don't know about Posner's abilities to wrangle other members of a court into seeing his point of view, but if his ability to build consensus is less than his revered ability to analyze legal questions, it could actually be a mistake to put him on the Supreme Court.

Albert Alschuler

The President should now nominate Judge McConnell (whose relative youth distinguishes him from Judge Wilkinson). McConnell is essentially a Roberts clone -- super credentialed, lots of arguments before the Supreme Court, every Democrat who's had anything to do with him says great things(Geof Stone included), and he knows as much about constitutional law as anyone. His public criticism of Roe and his evangelical Protestantism would generate enthusiasm on the right. They (and his ethnicity and gender) would also produce a fight -- but not a fight to the death as would be the case with Judge Luttig, Judge Alito, or anyone initially shot down by the Senate for the Court of Appeals. Every Republican and some Democrats would vote yes. McConnell be a shoo-in unless there were a filibuster, and if the Democrats filibustered, they'd shoot themselves. Media and public support would be limited. There would probably be ways to end the filibuster without invoking the nuclear option. A controversy in which the President looked better than his opponents would help him right now. In the end, we'd get a great justice, and the President would score all the points.

Who'd a thunk it, but as John Roberts proved, quality sells!



That's a fair point about being a consensus builder and you're right that Cardozo came on the bench late. But just think how Judge Posner would rule - and his reasoning behind his decisions - not being bound by any case law - and I've read many of his opinions to know that he faithfully keeps within the bounds of 7th Circuit and Supreme Court case law. Going back to your point about building a consensus, it would be interesting to analyze or research, if there was a way, his consensus building in en banc cases on the 7th Circuit.


Professor Stone,

I was surprised by your endorsement of Judge Wilkinson. What did you think of the quality his opinion in Hamdi? (Not so much the result, but the reasoning). Does it give you cause for concern?

As I read the Wilkinson Hamdi opinion, I saw lots of platitudes about "deference" to the executive, but no textual analysis of the AUMF, and no rigorous analysis of constitutional principles. It does not come near the seriousness and rigor that Judge McConnell would have brought to such a case.

joe p

Just in case there's someone left to read this.

Prof. Stone, it's now relevant - what is your opinion of Judge Alito?

You were willing to promote McConnell and Wilkinson. How does Alito compare? Is he open-minded? Out of the maintream of responsible legal thought?

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