Friday, July 08, 2005

Supreme Court Speculation

The news I've just heard is that after Bush touches down from his Scotland trip, William Rhenquist is going to announce his retirement, giving Bush, in effect, 3 appointments to the Supreme Court (Rhenquist is Chief Justice, so there would could conceivably be a situation where Bush has to appoint 2 new associate justices, and elevate one of the present associates to chief justice, which would require Senate confirmation).

If he has 3 appointments, then he has the opportunity to play to each of his "constituents," the nutty right wing part of the party, and the people who would've been considered nutty right wingers 20 years ago, but are now considered moderates (they may actually believe in evolution, for instance). The extreme right wing has launched a scorched earth strategy against an Alberto Gonzales appointment (he of the tortured torture memos), worried that he may oppose having churches write the laws of the nation. Ever since his opinion from the Texas Supreme Court in favor of striking down a law requiring parental notification for abortions, they have viewed him with suspicion. While I don't think he is such a great pick for the court, he would clearly be presented as a compromise candidate by Bush. It would also free him up to put a total right wing cultural warrior to the bench in the other open seat, and appoint Scalia or Thomas as chief justice.

However, I have another possibility.

I think that, while Gonzales is clearly a possibility, I wonder why I've never heard of this person mentioned as a possible appointee: Orin Hatch. Think about it, he would fulfill all of the requirements for Bush and all of his constituents: He's very conservative, he has tried to put through every Republican nominee for 2 decades, while surrepticiously trying to bring down Democratic ones (remember back in the 90s when Republicans would deny Democratic nominees that now-sacrosanct up or down vote? Hatch, as chairman of the judiciary committee, was a prime perpetrator). But, he is a Senator and, by all accounts, a well-liked member of that body (unlike, say, John Ashcroft, who was disliked by enough people on the other side that they voted en mass against him as Attorney General).

I think that Hatch would be a cinch, and he would be conservative enough for the right while being acceptable enough to Democrats in the Senate who would undoubtedly confirm him. Then, after that, Bush could appoint the right wing nut job and watch the Democrats attempt - and probably fail - to filibuster that nominee. They'd have their right winger in there, though, and that would be enough to push through the other one.

So, you read it here first, I think Orin Hatch is my sleeper pick for one of the Supreme Court openings, and he could even be the pick for chief justice, which would mean that Bush wouldn't have to fight to get Scalia or Thomas appointed as chief justice and put them through another confirmation hearing (remember, Scalia sailed through confirmation in large part because there was a long, acrimonious confirmation process in 1986 while elevating Rhenquist to the chief justice job, much of the 1950s, 60s and 70s (including Watergate) was rehashed while Scalia, one of the most reactionary justices in judicial history, was given a lifetime appointment. It's a good strategy.


chipesq said...

Two different views of federalism: possible O'Connor replacements Wilkinson and Luttig debate the outer reaches of the commerce clause.

Judges M. Luttig and J. Harvie Wilkinson of the Fourth Circuit are often mentioned as possible replacements for Justice O'Connor. Federalism, and what it means in the wake of the Raich decision is an important distinction between Wilkinson and Luttig.

It seems like Luttig's reasoning in the dissent below (Gibbs v. Babbitt) would suggest that he would have voted to invalidate the marijuana regulation in question in Gonzales v. Raich.
In Gibbs, Judge Luttig dissented from a decision holding that a Fish and Wildlife Service regulation limiting the killing of endangered wolves on private land was within the commerce power. Judge Luttig argued that the killing of a small number of wolves did not have a "substantial effect" on interstate commerce required by Lopez and Morrison. The case has received media attention because of the criticism of Judge Luttig's views in the majority opinion written by Judge Wilkinson. Judge Wilkinson argued that Judge Luttig "would rework the relationship between the judiciary and its coordinate branches" by allowing courts to invalidate laws based on "a judge's view of the wisdom of enacted policies."

Judge Luttig's view of the substantial effects test cannot be reconciled with his mentor, Scalia's opinion in Gonzales v. Raich. For starters, the grey wolf taking regulation in question in Gibbs IS part of a larger regulation, the Endangered Species Act. This is the specific reason why the marijuana regulation was upheld by Scalia, because the Congress is allowed to make regulations that reach purley intrastate activities if regulation of those intrastate activities is part of a larger scheme of interstate commerce regulations. Under Scalia's reasoning in Raich, the grey wolf taking regulation would have been valid.

So is Luttig in favor of medical marijuana? The Fourth Circuit has not ruled directly on the medical marijuana issue (none of the states in the Fourth Circuit have passed medical marijuana laws), see Raich at fn1. See e.g. United States v. Dash (10th Circuit 1997)(maufacturing controlled substance can be reached by the commerce clause based legislation). Proyect v. United States (2nd Cir. 1996) (manufacturing marijuana can be reached by commerce clause based legislation).

However, in United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995), Judges Russell, Hall, and Widener upheld the CSA's application to the growing of thirty three marijuana plants. Judge Luttig did not participate in the decision. The Leshuk decision itself simply says that because Congress made explicit findings that the manufacture of marijuana substantially affects commerce (and Congress failed to make the findings in the Gun Free Schools Zones Act), the CSA is valid. However, there were findings made by Congress in the VAWA, and they are explicitly discussed in Luttig's dissent in Brzonkala.

Luttig specifically criticizes finding an act of Congress contitutional against a commerce clause challenge just by making conclusory "findings." Luttig states: "Ignoring entirely the overarching change in Commerce Clause analysis wrought by Lopez, the majority merely recites several statements from House and Senate committees on the general problem of violence against women and the effect of that violence on the national economy, together with a sentence from a House Report stating that violence against women substantially affects interstate commerce (incidentally, never mentioning that the Senate, as opposed to the House, did not conclude that such violence substantially affects interstate commerce) and then simply states, without more, that the Act is constitutional."

Luttig suggests that he could have found differently on the issue in Leshuk:

"The majority's wholesale deference to a committee finding would at least be understandable if that committee had made extensive findings deserving of deference. However, the majority ultimately sustains the constitutionality of the Act literally on the basis of a single sentence appearing in that committee report, which sentence is, itself, entirely conclusory."

United States v. Leshuk:

See Gibbs v. Babbitt, full case available here:

Brzonkala v. Virginia Tech, full text here:

Luttig is a true federalist and seems willing to examine the sum and subtance of Congressional findings vis-a-vis the substantial affect any given activity may have on interstate commerce. He probably would have bucked his mentor Scalia and voted with Thomas in Gonzales v. Raich.

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or

123txpublicdefender123 said...

I think it's quite possible that Bush could pick at least one "non-judge" for a Supreme Court appointment. I'm not sure if Hatch will be the guy, but it's an interesting idea. It used to be more common, but it's been a while.

One correction about Gonzalez. He did not strike down a state law requiring parental notification for abortions. He ruled, with the majority, that a particular girl was entitled to the judicial bypass of notification provided for in the statute. He accused the dissenters, who thought the standard for a bypass should be much more strict than was written in the statute, of "an unconscionable act of judicial activism." Priscill Owen--now on the 5th Circuit--was one of those dissenters.

PD Dude said...

Thank you for the correction, I was writing based on my memory, which was fairly spotty of that case.

For better or worse, that case has earned him the distinction of "moderate." I'm not sure I buy it, and I think that this could lead to more damage on the Supreme Court, with Dems falling all over themselves trying to get him nominated over someone else, who may not be as bad as Gonzalez really may be.

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