Recently in Dubya's New Justices Category

"'There's been a quiet, silent revolution going on,' Carp said in an interview. 'If you're a conservative, you're going to say, "Thank God." If you're a liberal, you're going to put your hands over your head and say it's a nightmare.'" By way of my friend Mark, CQ's Kenneth Jost laments the Dubya judiciary.

Did White House officials steal a file on John Roberts' affirmative action record from the National Archives last year? "This investigation is unresolved and the file is still missing," says a new report by the Archives Inspector General, which Tim Noah dissects over at Slate. (Hmmm...was it reclassified, perhaps?) Still, according to the report, a White House staffer was the last person known to have the file, and "[t]he report's findings contradicted the assertions of Archives officials, who said last August that an attendant had been in the room at all times and that the lawyers had been separated from their bags." The mystery deepens...

Well, That's that, then. Justices Stevens, Ginsburg, Souter, Breyer, and Kennedy: Please take your vitamins.

I already mentioned this in the Feingold post below, but it merits its own space: The brief Alito filibuster is already over, with nineteen Dems voting for cloture. There are a lot of blogs calling for the heads of the "Vichy Dems" right now, and, true, they're not looking too good right now. But, frankly, neither is anyone else. The whole thing reeks of mismanagement and rank opportunism across the party.

I'm with Walter Shapiro: "In hindsight, the battle was effectively over after the first day of the Senate hearings when the criminally verbose Judiciary Committee Democrats failed to sustain a clear and consistent anti-Alito argument with all those cable networks broadcasting live. When politicians and interest-group leaders know that they are going to lose, they automatically retreat to a can-I-get-anything-out-of-the-wreckage calculus. So moderate senators from red states like South Dakota's Tim Johnson decide that they can buttress their independent credentials with home-state conservatives by supporting Alito, since the outcome would be the same no matter how he voted. Groups like People for the American Way realize that shrill calls for a filibuster might preserve their fundraising base even if their years of urgent appeals to prevent a right-wing Supreme Court takeover failed to change a single Senate vote. And Kerry -- whose late entry into the anti-Alito fray can be partly excused by his not serving on the Judiciary Committee -- is also aware that such dramatic gestures help him maintain an up-to-date, ready-for-'08 e-mail list of Democratic activists."

At any rate, the silver lining of this judicial nightmare (other than Judge Kennedy's potential unpredictability) is that tomorrow, after Alito is voted through and Dubya gives his State of the Union, the GOP are officially out of good news. From tomorrow on, all the stories on tap, the continuing Iraq quagmire notwithstanding, are hearings and investigations -- into the NSA wiretaps, into Abramoff, into Plamegate, into Katrina. So let's pick ourselves up off the floor and get it together -- We've got serious questions to ask of this administration, and, more importantly, we've got ourselves an election in nine months.

With a tip-off from the Progressive Patriots Fund, I had the opportunity yesterday to catch Sen. Russ Feingold speak on the Patriot Act and the NSA wiretapping scandal over at Cardozo Law School. (Their pics are a lot better than mine -- I forgot to charge my batteries, and thus only got in 2 or 3 shots before my camera died on me.) And how was he? Well, all-in-all, he came off as a convincing candidate for the election ahead, as well as an impressive, informed, and personable fellow. To be honest, I found his remarks a bit lawyerly (then again, he's a lawyer speaking before a law school, so that's not really a fair criticism), but, taken in full, he seemed a committeed progressive and a refreshingly candid leader, the type of dynamic, independent thinker the Senate should be teeming with, if the system came anywhere close to working these days.



The gist of Sen. Feingold's remarks was thus: Al Qaeda is the central threat facing America and has been since 9/11. Yet, instead of bringing the nation together to eliminate this terrorist organization, the Dubya White House has chosen time and time again to endanger our national security and compromise our most fundamental American values for their own ideological or power-hoarding purposes. (Iraq, Guantanamo, extraordinary rendition, secret gulags, you name it.) Along those lines and as we now all know, the Patriot Act, which only Feingold voted against in 2001, contains some terrible provisions therein, the most notorious example affecting Middle America being Section 215 (which gives law enforcement, among other things, the right to see what you've been reading.)

Yet, as per the norm, Dubya has refused to admit that it's even possible that something might be wrong with the Patriot Act now that it's up for renewal -- only that it's necessary to defeat the evildoers and that any microscopic change in the statute could rend the fabric of freedom irreparably. (Despite this now-somewhat hoary ploy, Feingold and others have succeeded in blocking a permanent blanket extension for now, as y'all know if you've been visiting here lately.) And, of course, Dubya has taken this same tack of obfuscation and fear-mongering to cover up his brazen wiretapping power-grab -- which, according to Congress's own research arm, broke at least two laws and counting.

Again, this story is not news to many Dems out there, but Feingold laid it out in clear, comprehensible, and systematic fashion. (The only "breaking news" made was the Senator announcing this letter to Gonzales, asking him why he, in effect, lied to the Judiciary Committee during his confirmation hearings about the NSA wiretaps.) And he had some good lines throughout -- In reply to Rove's ridiculous claim that Dems were "pre-9/11", Feingold quipped that the GOP suffered from a "pre-1776" mentality these days. (He also retold the recent Patrick Henry exchange.) To be honest, I'd liked to have heard more in this vein -- In terms of breaking down the legislative legerdemain and legal issues at hand, Feingold was superb. But I thought the speech needed more narrative sweep and rhetorical grandeur, more explanation of why this battle matters so much to the workings of the republic. He doesn't have to turn into Robert Byrd overnight. Still, I thought the remarks could have benefited from more dramatic heft and historical resonance: Jefferson, Madison, Adams, Lincoln, Wilson...they're all relevant here. (Then again, as I said above, I was an historian sitting in a room full of lawyers, so I was a tougher sell than most.)

Along those lines, if there was a problem with this presentation, it's that the Senator, while clearly outraged, at times seemed much less livid about all this than many in the audience, who occasionally sounded ready to hoist the black flag. (In fact, many will no doubt be happy to hear that Feingold was asked twice "why Democrats are so lame." As he noted (and as the blogosphere can attest this week), if a crowd in New York City is this irate with the party, the Dems might be in serious trouble nationwide in November. Still, he also emphasized that the Democrats could be more effective fighters if they actually controlled a house of Congress -- You can't hold hearings if you're in the minority.

In terms of other questions, Feingold said he supports and will take part in the very late-developing (and now already defunct) Alito filbuster (Roll Call.) In fact, he thought the Dems made a crucial mistake in capitulating to the original "Gang of 14" compromise, arguing cogently that Dems have seen nothing for it and may well have had the votes to win Catkiller's game of nuclear chicken. Since Casino Jack and lobbying reform seemed too big a subject to address competently in the time allotted, I asked him a question about his thoughts on the NYT decision to spike the NSA story for a year, his general view of the mass media's performance in serving as a check on these types of executive abuses, and ('cause it seemed apropos) his thoughts on the burgeoning blogosphere's role in all this. He didn't really go after the Times decision, and said that, in terms of the recent Patriot Act debate, he thought the press had actually done an ok job. Regarding blogs, he called the Internet "a miracle for populist politics," which was a good enough soundbite that everyone in my row dutifully wrote it down at the same time.

And, of course, Sen. Feingold was asked -- a couple of times -- whether or not he was running for President in 2008. Naturally, he played it coy -- After all, we still have just under two years before the Iowa caucus. But, for what it's worth, I was impressed by him -- He's not a first-class emoter like Edwards or Clinton, of course. Instead, he comes across as a highly intelligent, capable, and nuanced thinker, a la Bradley, Kerry, or Gore on his better days. But unlike those three, he also seemed much more comfortable in his own skin, more naturally himself at the podium, and -- most importantly -- more content to play the maverick if his lefty principles dictate thus. (Although, as I said, I'd like to see him tone down the lawyer-ese and rev up more Wellstone-ish fire if he does make a White House run.) I suppose there's a small, bordering-on-infinitesimal chance that Rodham Clinton, Biden, Warner, or someone else might drop all the "New Democrat" protective camouflage this time around and begin loudly and undefensively proclaiming progressive principles to the Heavens. But, until that unlikely event, my candidate in the 2008 Democratic primary is Senator Russ Feingold of Wisconsin. (Update: 1776 link via Medley.)

"Judge Alito's record and his testimony have led me to conclude that his impulse to defer to the executive branch would make him a dangerous addition to the Supreme Court at a time when cases involving executive overreaching in the name of fighting terrorism are likely to be such an important part of the Court's work." Although the Senate Judiciary Dems (including Feingold) lined up against him, Sam Alito made it out of committee on a 10-8 party-line vote. Now, with his nomination before the full Senate, and with Nebraska Dem Ben Nelson joining the GOP majority, it seems, unfortunately, that the "worst nightmare of liberal democrats" will come to pass, and Alito will join the Roberts court. (For what it's worth, Nelson wasn't alone in his apostasy: Santorum challenger Bob Casey also came out for the judge.) Well, let's hope Justice Alito takes a less forgiving look at executive encroachment than has Judge Alito. (Casey link via Medley.) Update: While the NYT says filibuster, Dems Robert Byrd and Tim Johnson back Alito. (Of course, if the NYT hadn't sat on the NSA story for a year, perhaps we could have nipped Alito in the bud back in November 2004.)

"The voting section is always subject to political pressure and tension. But I never thought it would come to this...I was there in the Reagan years, and this is worse." With the help of former career officials who've resigned in disgust, the Post delves deeper into the partisan corruption of the Justice Department's Civil Rights Division on Dubya's watch. "The Bush administration has...initiated relatively few cases under Section 2, the main anti-discrimination provision of the Voting Rights Act, filing seven lawsuits over the past five years -- including the department's first reverse-discrimination complaint on behalf of white voters...By comparison, department records show, 14 Section 2 lawsuits were filed during the last two years of Bill Clinton's presidency alone."

And, in related news, Salon's Will Evans uncovers a crooked Dubya-appointed federal judge, James Payne of the 10th Court of Appeals. Apparently Judge Payne "issued more than 100 orders in at least 18 cases that involved corporations in which he owned stock," which, obviously, is illegal. "'There's no wriggle room here,' says professor Stephen Gillers, a scholar of legal ethics at the New York University School of Law. 'It's not just an ethics rule, it's a congressional statute -- a law.'" Little wonder the administration is running scared from pics of Casino Jack -- they've already got the stink of Abramoff-style cronyism and corruption all over them.

"While it's true that O'Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it's also true that in other extremely contentious areas, it is Kennedy, not O'Connor, who has swung the court leftward." As Dem begin to announce their no votes for Alito (while downplaying the likelihood of a filibuster), Dahlia Lithwick -- who is concerned about Alito's judgment in the relatively precedent-less world of anti-terror-law -- gives us hope for the Court's future in highlighting Anthony Kennedy as the new swing vote. (Clearly, the psycho-right despises him, which speaks well of his jurisprudence in my book.)

The (somewhat perfunctory) hearings are over, and -- despite several "quiet bombshells" and troubling evasions, it appears likely that Sam Alito will be confirmed to the court as expected. Well, hopefully the purported liberalizing influence of the Court will work its mojo on Alito, although that's not a very comforting peg on which to hang one's hat. (Another perhaps equally unlikely possibility which I've heard discussed recently is that Roberts, not Alito, will become the new swing vote. One can only hope.)

Didn't we just do this? Well, regardless, the Senate Confirmation hearings for Sam Alito are now underway. Given his dubious paper trail, his conflict-of-interest on the books, the recent disclosures about Dubya's imperial pretensions and the possibility of a Dem filibuster, Sam "Scalito" Alito looks to have a tougher road ahead than John Roberts. But, who among the GOP, other than possibly Arlen Specter, might vote against him? Barring a Borkish meltdown before the Senate Judiciary, or, unlikelier still, an uprising over the issue of presidential power, I'd be surprised (but not at all dismayed) if Alito isn't nominated to the bench, particularly with the public (slightly) behind him. That being said, having freakshow GOP pro-lifers like Sam Brownback and Tom Coburn froth at the mouth over Roe v. Wade probably isn't doing Alito any favors in the court of public opinion. Update: Alito's opening statement: Aw shucks, I'm just a humble, regular, working-class guy from Jersey, and in no way a scary conservative (although I do really dislike 60's liberals.) Update 2: Slate's Dahlia Lithwick weighs in.

"What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?" He may be on the political back-burner until next month; nevertheless, Sam Alito's nomination grows increasingly troubling, with word of another rabidly pro-life paper trail in his past which, like his conflicts of interest, he has heretofore failed to disclose.

"I am particularly proud of my contributions in recent cases in which the government argued...that the Constitution does not protect a right to an abortion." An unearthed 1985 job application by Sam Alito is chock-full of scary quotes by the Justice-nominee. "In the document, Alito said he drew inspiration from the 'writings of William F. Buckley, Jr., The National Review and Barry Goldwater's 1964 campaign.' 'In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment,' he said."

A true Dubya conservative? Aside from the usual Federalist Society wingnuttery, Judge Samuel Alito also appears to have some considerable conflict-of-interest problems on his record. "Alito had at least $390,000 in Vanguard mutual funds when he ruled in a 2002 case that favored the company. After a party to the suit complained, he stepped aside and another panel of judges reheard the case. Alito also ruled in a 1996 case involving Smith Barney, which was his brokerage firm." This probably won't derail his nomination by itself, but, still, Judiciary Committee members Kennedy and Feingold, among others, want answers.

Wise? Not hardly. It's become even clearer since yesterday that Samuel Alito is no Sandra Day O'Connor, and that he's all for ultra-conservative judicial activism. The Left appears ready for war this time around, but Alito's fate probably rests with a few GOP moderates, including Specter, Collins, Snowe and Chafee. Update: Worse than Scalia?

Dubya kicks off his first post-indictment week by throwing chum to the right-wing fundies and nominating Samuel A. Alito, Jr. to the Supreme Court. So far, he sounds more John Roberts than Harriet Miers, but "[u]nlike Roberts, he has opined from the bench on abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals." Well, if the White House wants a battle to shore up its right flank, it looks like they're going to get it.

Rather lamely citing a potential dispute over executive privilege (a.k.a. the Krauthammer option), the White House removes Harriet Miers from Court consideration. Obviously, this isn't a big surprise after the recent right-wing uprising, but it does mean that Dubya's next choice will undoubtedly veer closer to the fundie side of the fence. With that in mind, who's next? Update: Washington reacts.

New Hampshire Sen. Judd Gregg hits an $850,000 payday in Wednesday's Powerball lottery. Hey, wait a second...did Harriet Miers have anything to do with this?

"Although it's obviously too soon to situate the Bush administration in history, it's possible...that it may be leading us into a period where politics is defined according to the old spoils system rather than the technocratic assumptions ushered in by the Progressive Era." With the Miers pick in mind, Slate's David Greenberg reviews the sordid history of Supreme Court cronyism from Jackson to LBJ.

"She may turn out to be the greatest thing since Antonin Scalia, but when will we know that?" Two days after the Harriet Miers pick, and despite news reports accentuating her strong evangelicism, conservatives are still openly perturbed by the choice (George Will is particularly livid.) As for how she stands on the issues, we still know very little, other than her mixed record on gay rights and probable pro-life stance. (Well, presumably, she's also pro-lottery.) Nevertheless, it sounds like she's probably already got Harry Reid's vote.

"There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate. And I don't believe we get there by vilifying good allies, with a lifetime record of battling for progressive causes, over one vote or position. I am convinced that, our mutual frustrations and strongly-held beliefs notwithstanding, the strategy driving much of Democratic advocacy, and the tone of much of our rhetoric, is an impediment to creating a workable progressive majority in this country." In an impressive blog post that's worth reading in its entirety, Sen. Barack Obama spells out his concerns with the often-shrill, backbiting tone of the liberal blogosphere (particularly at sites like dKos) and progressive advocacy groups in general. Put plainly, his point is this: keep an eye to undecided voters, and concentrate your firepower outward. (Via Medley.)

In the early morning, Dubya chooses White House Counsel Harriet Miers as the next Supreme Court nominee. (Searching far and wide again, I see.) Well, let the vetting begin. On the plus side, the fundies seem perturbed, and she has some Dem donations in her past. On the other hand, she's a rabid Bush loyalist, calling him "the most brilliant man she had ever met." (Get out much?) Update: The Weekly Standard's Bill Kristol is disappointed, depressed, and demoralized by the Miers pick, while Legal Times was already unenthused about her. Update 2: Slate's Dahlia Lithwick and Emily Bazelon are similarly nonplussed: "Can anyone really imagine that she'd be the nominee if she weren't a woman and the president's friend and loyal adviser? Cronyism and affirmative action: It's a nasty mix."

"The core difficulty for Democrats is that they must solve two problems simultaneously -- and solving one problem can get in the way of solving the other. Over time Democrats need to reduce the conservative advantage over liberals in the electorate, which means the party needs to take clear stands that could detach voters from their allegiance to conservatism...But even indeterminate talk of a 'national' message makes many Democrats holding those 41 pro-Bush House seats (and Democratic senators from red states) nervous." E.J. Dionne attempts to explain the structural basis for our party leadership's frequent disarray, which was in full evidence again on the Roberts vote.

"I will pick a person who can do the job. But I am mindful that diversity is one of the strengths of the country." As the Roberts nod goes to the full Senate (my thoughts on Roberts below), Dubya hints at a woman and/or minority justice for O'Connor's seat. With these parameters in mind, Salon's Tim Grieve surveys the most likely choices. Among them are faces familiar -- Edith Clement, Priscilla Owen, and Janice Rogers Brown, for example -- and unfamiliar, such as Maureen Mahoney, the "female John Roberts." (And, of course, there's always Gonzales, although his star seems to have dimmed.)

"When my party retakes the White House, there may very well be a Democratic John Roberts nominated to the Court, a man or woman with outstanding qualifications, highly respected by virtually everyone in the legal community, and perhaps with a paper trail of political experience or service on the progressive side of the ideological spectrum. When that day comes, and it will, that will be the test for this Committee and the Senate. And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last Chief Justice of the United States in my lifetime."

By a vote of 13-5, John Roberts is approved by the Senate Judiciary Committee -- with Dems Patrick Leahy, Herb Kohl, and Russ Feingold joining the Republican majority -- and will no doubt become the Court's next Chief Justice. The Dems -- and particularly Sen. Feingold -- are already getting flak for their Yes votes from People for the American Way and other liberal groups. (For their part, Hillary and Joe Biden have decided to keep the 2008 primary voters happy.) Well, just as I think Feingold was right to vote yes on Ashcroft in 2001, I think he made the correct decision here, both in terms of principle and politics.

In terms of principle, I think Feingold's statement above is exactly correct. We could go through 1000 nominees, and Dubya would never pick anyone who comes remotely close to being a progressive -- Sadly, the conservative tinge of the Supreme Court was decided last November, with Dubya's re-election. The question before the Senate was whether Roberts was (a) competent enough to fill the position of Chief and (b) whether he adhered to the broad mainstream (albeit conservative mainstream) of American legal thought. I watched almost all of the Roberts hearings and, although he dodged and weaved past way too many important questions, he was clearly (a) hyper-competent and (b) more respectful of existing legal precedent than many other conservative freakshows Dubya could have appointed (and might still.) Roberts said a number of times that he believed in a constitutional right to privacy, that Griswold was good and settled law, and that (although most agree on this anyway, Janice Rogers Brown notwithstanding) the Lochner Court was not an appropriate or worthwhile historical role model for today's judiciary. Perhaps he's lying, but it's no small business to lie before the Senate. I think Feingold was right to take his word at face value and vote yes, with reservations.

Voting for or against a 50-year-old Chief Justice is not a decision to be taken lightly, and I'm sure Dems on both sides of the vote chose their stance on principle. But, to be base for a moment and consider the politics of the situation, the Yes voters allowed themselves wiggle-room on the next nominee that most Dems have basically wasted on a sure thing. Roberts is replacing Rehnquist, a conservative for a conservative. The real battle lies ahead, when Dubya appoints a justice to take O'Connor's swing-vote position. Where are the Dems who voted no on Roberts going to go? Chances are the next candidate for justice will be less competent and more conservative, in the scary-fundy sense, than Roberts, but the no-voting Dems have lost all pull by not keeping their powder dry. Had the Dems acceded to Roberts' nomination, they would have easier recourse to a possible filibuster in Round 2, particularly with the fair-play-minded Gang of 14. Now, not so much.

At any rate, I'll admit to being already something of a Feingold groupie -- More than any other Dem, except perhaps the late Paul Wellstone, I view him as my Senator in Congress, the closest thing to a true progressive out there. (For what it's worth, I also thought he did a better job than any other Dem in his questioning of Roberts, with the possible exception of Dick Durbin.) Still, I think he made the right decision in this vote, and I hope very much that groups on the left who disagreed with his choice here keep an eye on the big picture and don't start calling for his head.

And Roberts? Well, I'm never going to agree with the guy on a lot of issues, that's for sure. But, in the hearings, I thought he came across as conservative in the old and best sense of the term -- cautious, restrained, not inclined to break tradition -- and not as a frothing, fundamentalist reactionary like any number of judges Dubya has appointed to the bench. Let's hope, for all our sakes, that this turns out to be the case.

The Roberts confirmation hearings are now underway. So far, they're not making for the most scintillating television -- at this very moment, Sen. Jeff Sessions (R-AL) is mangling his way through an opening statement he's clearly never read before -- but hopefully the drama will pick up once the Senators start firing away questions. (In fact, Feingold's up now with his opener, and Roberts' brow looks increasingly furled.) Update: Well, he's polished...I'll give him that. After watching three days of hearings, I learned more about hapless toads and the various senators on the Judiciary committee than I have about Roberts.

Striking a blow against those terrorist conspirators who orchestrated the Fourth Amendment, a federal court headed by conservative Supreme Court contender Michael Luttig declares that US citizens can be held indefinitely without charges. " For his part, Attorney General Alberto Gonzales, another big-time Court contender, "hailed the ruling as reaffirming 'the president's critical authority to detain enemy combatants who take up arms on behalf of al Qaeda.' Oh, yes, they will destroy this village in order to save it.

Breaking News: Segregationist, federalist, kingmaker, lousy historian, fashion maven, and Chief Justice of the Supreme Court William Rehnquist has died. Can't say I'm looking forward to the Dubya gang getting to pick a new Chief Justice. Nope, not at all. Update: Dahlia Lithwick weighs in, and the nomination calculus begins anew. Update 2: It's Roberts for Chief.

As big-time progressive donors get to institution-building, the Dems try to work out a coherent strategy on the Roberts confirmation hearings and the war in Iraq. Right now I think Russ Feingold's strategy -- taking the heat off Roberts to focus on matters in Baghdad -- is probably the right one, although the party should also try to keep the public eye trained on the misdeeds of Mssrs DeLay, Rove, etc. There should be no wriggling off the hook this time for these well-placed GOP criminals.

"And that's why John Roberts doesn't alarm me much. The same conservatism that leads him to decry judicial overreaching in the privacy and civil rights contexts is part and parcel of a larger conservatism that distrusts reckless grandiosity...Roberts cares a lot about looking temperate, and that isn't a bad thing in a judge." As Senators Ted Kennedy and Patrick Leahy turn up the heat on the Roberts nod, Slate's Dahlia Lithwick argues that, at the very least, he seems temperamentally unsuited to be a judicial bomb-thrower. That's good, 'cause even with today's news of a missing civil rights folder and a possible conflict-of-interest in a terrorism case, there doesn't yet seem to be a silver bullet that could derail this nomination. Update: Dahlia Lithwick reconsiders after pondering Roberts' "Woman Problem."

"'I've long assumed that once John Roberts was confirmed for the D.C. Circuit that just like Clarence Thomas and Antonin Scalia, he was headed to the Supreme Court,' Aron says. 'I also knew, based on his thin public record, he would be the hardest nominee to challenge.'" Salon's Michael Scherer examines the reasons behind the surprisingly smooth sailing for John Roberts thus far. Recently released documents indicate he's clearly a dyed-in-the-wool Reagan conservative, but that, however discomfiting, isn't in and of itself enough to thwart his confirmation. Of course, the White House is still holding on to his Bush Sr.-era records, and I for one am curious to see how Roberts here conducted himself under Ken Starr's tutelage (and during Bush v. Gore, for that matter.)

Federalist Society or no, John Roberts now seems almost assured of winning confirmation as the Supreme Court's newest justice (barring an eleventh hour revelation of impropriety, of course.) So, the Dems plan for the next best thing, which is to use the Roberts hearings as political theater with which to expose general right-wing looniness. Hmmm. Might work, I suppose. Hopefully, the Dems will keep their eye on the ball and make sure any gamesmanship on Roberts doesn't suck the press away from the still-growing White House felony investigation, which now seems to include possible perjury and obstruction of justice charges for Rove, Libby, et al. Update: Wilson's revenge? Salon suggests the operative law in the Rove case may be the Espionage Act of 1917, which isn't what you'd call one of progressivism's better moments.

"What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy...But [Roberts] represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port." So, John Roberts. (I was traveling/working and missed out on yesterday's Clements bubble.) Early word seems to be that he's a tried-and-true conservative -- A member of the Federalist Society, he was a Rehnquist clerk and a protege of Ken Starr -- but not necessarily an ideologue or throwback. He seems a bit shaky on civil liberties, at least if you're a Guantanamo inmate or a 12-year-old eating fries on the DC Metro. (And, of course, there's the worrying inconsistency on Roe v. Wade.) But, my first impression, like many, is that Dubya could've picked a lot worse. Still, let's get him before the Senate and see what comes out. Update: Hmmm...questionable on the environment, voting rights, and church-state separation too.

Soon after returning from a two-day stint at the Virginia Hospital Center, Rehnquist announces he's staying on the Court (which may well speed up Dubya's announcement of O'Connor's replacement.) Well, big of the Chief to finally tell us. What was the holdup, and why so coy a week ago?

"'I'm not sure where people get judgment,' Professor Powe said in an interview on Wednesday. 'I'm quite sure it doesn't come from the law school context. But really good politicians have it. They know how far they can go, and when they have reached a good stopping point.'" As the Senate's moderate "Gang of 14" looks to navigate the rocky shoals ahead, the NYT's Linda Greenehouse makes the case for a return to the longstanding tradition of non-judge justices.

"As lawyer for the governor in the Texas Statehouse from 1994 to 1997, Gonzales was responsible for advising Bush about whether he should delay the death sentences of capital murderers...As my colleague Phillip Carter has written, Gonzales' work on this life-or-death task 'would have barely earned a passing grade in law school.'" Slate's Emily Bazeon argues that rabid right-wingers are correct on one account: Alberto Gonzales would make a lousy Supreme Court justice.

As Washington waits for word from Rehnquist, Senate Dems sit by the phone, and the Left arms for a Last Battle of sorts, Judiciary Committee Chairman Arlen Specter muddies the waters by suggesting that the new Chief Justice be...Sandra Day O'Connor?

Can Dubya have his cake and eat it too? Crossfire correspondent and Douchebag of Liberty Robert Novak hints that Rehnquist will also leave the Court this week. As the article suggests, this may be good news for the Dems, as it seems unlikely that Dubya will be able force through two hard-core right-wingers in a row, even with Fred Thompson at the helm...or at least one hopes. Update: The terrain shifts for twin appointments.

As Dubya heads off to G8 (although not before pushing back on Gonzalez), Washington DC continues to gird for the Supreme Court fight ahead, with Senators of both parties airing their respective views on questioning candidates, the Post previewing the fall 2005 Supreme slate, and everyone else trying to guess Dubya's probable pick. Of course, even a hardline conservative may not decide as Dubya intended...although that'll be small consolation for the Dems should one get through.

"Concealed within his fortress, the Lord of Mordor sees all. His gaze pierces cloud, shadow, earth and flesh. You know of what I speak, Gandalf -- a Great Eye, lidless, wreathed in flame." (Via Supercres.)

(And, while I'm quoting our fallen friend, Saruman of Many Colors: "The hour is later than you think. Sauron's forces are already moving. The Nine have left Minas Morgul...they crossed the river Potomac on Midsummer's Eve, disguised as judges in black.")

Here's an independence day nightmare: "With the Supreme Court vacancy left by the retirement of Justice Sandra Day O'Connor, the conservative movement has within its grasp the prize it has sought for more than 40 years: the control of all levers of the federal government."

Yes, the right-wing fundies' time is now, which is why they are already trying to spike Alberto Gonzales as too moderate and imploring Dubya to pick the "right" kind of conservative. Meanwhile, as the two parties gear for battle (despite talk to the contrary) and Dems reconsider the filibuster, Senate Judiciary Chair Arlen Specter contemplates his own legacy, which, if past behavior is any indication, likely means rolling over on command.

It's on...Justice Sandra Day O'Connor announces her retirement. "Because she is a moderate, her departure gives President Bush a major opportunity to alter the direction of the court if he so chooses." Round 1 looks to begin July 8. (Possible contenders.)

"Indeed, former administration officials say all of the names on Mr. Bush's short list for the Supreme Court are considered strict constructionists who are closer to Justice Scalia than to Justice O'Connor." The New York Times tries to figure out if Dubya can actually