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SCOTUS developments/discussion

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Now that Roberts and Alito are in, it's time to start the speculation as to who will be next. Each post should try to discuss (as in answer with reasoning) at least one of the following questions:

1. Who is the next justice to depart and when?

2. Who will take his/her place if Bush nominates the replacement?

3. Who will take his/her place if another Republican president nominates the replacement?

4. Who will take his/her place if a Democrat president nominates the replacement?

5. Who is the most desirable replacement that is qualified?

6. Who is the most desirable replacement that is qualified and has a realistic shot, given the political environment, at being nominated?

I'll give this more thought some other time, as there are plenty of factors, but for now a couple things strike me as meriting investigation:

1. Members of the D.C. Circuit. Four members of the current Court (Ginsburg, Thomas, Scalia, Roberts) come from there. I recall reading that it's something of a prestigious gig among the elite judicial gigs.

2. Recently appointed Court of Appeals judges. Four members of the current Court took their positions on the Court within a few years of taking positions as appeals court judges (Thomas, 1990-91; Souter, 1990; Scalia, 1982-86; Stevens, 1970-75; Roberts, 2003-05).

3. Those who were nominated for the Court of Appeals by a President belonging to party X, but Supreme Court seats only become available initially when a President from party Y was in office. For example, Ginsburg and Breyer were Carter nominees who took their seats on their respective Courts of Appeals in 1980. A few months later, Reagan was in office. The next several were from Republican presidents. Clinton nominated Ginsburg in 1993, then Breyer in 1994. So, they were both on the Courts of Appeals for a while, but got picked up by the next Democrat president.

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1. Members of the D.C. Circuit.

2. Recently appointed Court of Appeals judges. Four members of the current Court took their positions on the Court within a few years of taking positions as appeals court judges (Thomas, 1990-91; Souter, 1990; Scalia, 1982-86; Stevens, 1970-75; Roberts, 2003-05).

Is Bush setting up Brett Kavanaugh for SCOTUS? Young guy (he's all of 41!), Yale law, solid ABA rating, argued before SCOTUS, clerked for Anthony Kennedy as well as two federal circuit court judges (notably Kozinski). Interestingly, this guy worked pro bono on behalf of Elian Gonzalez after the INS decided to send him back to Cuba.

I wonder if Bush is hoping that some justice (Stevens perhaps?) will leave during his term so he can put this guy on there. Before you say that he wouldn't put up such a recent Court of Appeals nominee, look at Souter, Thomas, and Roberts. Maybe this is why Schumer is giving the guy hell at this nomination hearings.

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One potential SCOTUS nominee may no longer be an option:

Luttig steps down to take Boeing job

I'm not sure why his having left the bench would preclude his return to it at a higher level.

If there's going to be a near-future opening on the court, my guess is it will be within the next month or two. The Supreme Court term ends in June, and justices who retire often do so at the end of a term in the hopes that their replacement will be confirmed and sitting by the start of the next term in September.

However, given the way the political winds seem to be blowing, I'd expect any liberal justices who are thinking of retiring to try to hang on for at least one more year in the hopes that Bush will be facing a more hostile Senate when he fills the opening.

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  • 5 years later...

http://www.youtube.com/watch?v=vzog2QWiVaA

Earlier this month, in an interview on Egyptian television in which she was asked for advice about constructing a constitution today, Supreme Court Justice Ruth Bader Ginsburg asserted, “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” She elaborated: "I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the US constitution—Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world?"

For more analysis, check out the One Reality blog. Edited by softwareNerd
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