Slate's Jurisprudence: Conservative Court Nominees

President Bush has nominated several conservative judges for federal court seats. Madeleine Brand discusses those nominations and the political forces lining up against some of them with Slate legal analyst Dahlia Lithwick.

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NOAH ADAMS, host:

This is DAY TO DAY, I'm Noah Adams.

MADELEINE BRAND, host:

And I'm Madeleine Brand. President Bush has recently nominated several new and very conservative judges to the federal bench. Some are so controversial that the debate over judicial filibusters is heating up again. Dahlia Lithwick is here now, she's a legal analyst for the online magazine Slate, and for us here at DAY TO DAY. And Dahlia, catch us up with this story. The president has met resistance with several new nominees. Tell us about them.

MS. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Either new ones or pushing along old ones, Madeleine, I'll go from the least to the most controversial. The first and probably most promising is Brett Kavanaugh, who won a party line vote last week in the judiciary committee, and so he will move to a full Senate vote and likely be confirmed. Kavanaugh's only 41. He worked with Ken Star on the Clinton impeachment; he also worked on the Bush 2000 campaign; and most of his experience - he's only 41 - has been in the Bush administration. So there's real question about, sort of, his, his politics.

Next we move to Terrance Boyle, who was a Bush nominee to the Fourth Circuit. He's already had his hearing, but Salon just revealed that he bought stock in General Electric when he was presiding over a case, and he turned around and ruled in favor of GE. So there's real questions about his partiality. And then, probably the worst example of a Bush nominee, is Michael Wallace, Bush's nominee to the Fifth Circuit. He received a unanimous "not qualified" vote by the American Bar Association. That's the first time in almost 25 years, someone has received that rating, and only the second time in history. So he is just absolutely, flat out, not fit to be on the courts, according to the ABA. And yet, a lot of GOP partisans are sort of pushing these guys along.

BRAND: Well the president's popularity is pretty low these days. And so, I'm wondering if Democrats are feeling strong enough to go ahead with any filibusters?

Ms. LITHWICK: There's some question as to whether the Democrats are strong enough to go ahead with anything at all, Madeleine. But certainly, the talk is that if someone like Wallace is pushed forward, they are going to think about filibustering. And even amongst that gang of fourteen - that's the fourteen members of the Senate who had agreed to, sort of, stop the filibuster wars last year; but said that they would, in fact, condone a filibuster under "extraordinary circumstances"—certainly, I think the feeling is that a not qualified rating constitutes extraordinary circumstances. And it might, in fact, be time to really think about filibustering if completely unfit candidates are put forward.

BRAND: And a related story, Dahlia: one leading conservative jurist, Michael Luttig of the Fourth Circuit, he was on the president's short list, reportedly, for a Supreme Court nomination. He has stepped down to go into the private sector and take a job with Boeing. What does that mean for the courts?

Ms. LITHWICK: Well it's certainly, sort of the decline of one of the people who really was willing, to quote Sandra Day O'Connor, to “give a blank check to this president in war time.” I mean, Luttig was the person who wrote one of the strongest opinions in favor of Bush's argument for his own unbridled executive power. If it's possible, Madeleine, as they say it is - that one of the reasons that Luttig retired, was over the Bush administration's handling of the Jose Padilla case this winter - then it's certainly, I think, fair to say that the administration is losing some of the strongest supporters it ever had in the war on terror, based on its own conduct in the war on terror.

BRAND: And what, specifically, did Luttig disagree with?

LITHWICK: Luttig had written the strongest opinion out there. Saying that Bush is entitled to hold, even American citizens as enemy combatants, indefinitely, during wartime. When the Bush administration then, essentially said, oh, whoops, we made a mistake, we're going to try Padilla on these very, very inconsequential charges in criminal court - Luttig was the one who said, wait a minute. You've been telling me for years - this guy was the dirty bomber, this guy was going to blow up apartments - and now you're saying you have no proof. I think his own sense of betrayal was very manifested in the opinion he wrote after that. And I think it's quite clear, that he was very, very betrayed, and felt that he'd been duped by the administration.

BRAND: Thank you Dahlia.

Ms. LITHWICK: My pleasure Madeleine.

BRAND: Opinion and analysis from Dahlia Lithwick, she covers the courts for the online magazine Slate, and for us here at DAY TO DAY.

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