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Tuesday, July 19, 2005

Something to Think Aout

As of the moment of posting, President Bush has not nominated someone to fill the vacancy caused by the resignation of Justice Sandra Day O'Connor.

This article gives some interesting information about the background of Justices in the past and is well worth reading.

Nelson could serve honorably as surprise Supreme Court pick
Jul 17, 2005 - Omaha World-Herald

Just when we thought there was no new speculation about President Bush's pending replacement of Sandra Day O'Connor on the U.S. Supreme Court, along comes a surprise.

During the president's politically correct consultation with the bipartisan Senate leadership last week, several senators urged that someone be considered who is not already on a lower federal bench, the customary source of previous appointments.

A non-judge! What a concept.

The president apparently welcomed the suggestion, although the names being circulated so far in public all wear black robes or did so in the past. "Would I be willing to consider people who had never been a judge? The answer is: You bet,'' Bush told reporters. He indicated he already was doing so. "We're considering all kinds of people -- judges, non-judges.''

The idea is that a little hands-on political experience, such as O'Connor had in the Arizona State Legislature before becoming a state court judge, might help the nominee reach sensible judicial judgments the country can support.

U.S. Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, noted that career lawyers spend too much time with "footnotes and semicolons'' and have "very little contact with people.'' Sen. Patrick Leahy, D-Vt., added that he approved of going "outside the judicial monastery.''

This is not as shocking an idea as it seems at first blush. Chief Justice William Rehnquist, for example, was tapped as an associate justice by President Richard M. Nixon while an assistant attorney general.

Legal historians point out that of the 108 justices who have served on the Supreme Court, only 48 were drawn from the ranks of sitting judges. The others have been practicing lawyers, attorneys general, Cabinet officers, senators, members of the House, governors, solicitors general and law professors.

Indeed, the Constitution does not even require high court justices to have a law degree. It merely says that judges, "both of the supreme and inferior courts shall hold their offices during good behavior.''

Rehnquist's bout with thyroid cancer and a sudden, short hospital stay last week for a fever have created a spike in speculation that Bush may have two vacancies to fill before the new court term begins in October. That would give him an opportunity to name simultaneously both a judge and a non-judge, broadening the public appeal of his choices.

This adds a new dimension to the partisan argument about whether any new justice should reveal his or her ideological leanings or be judged only on that vague category, "character.''

A non-judge would have a different sort of record than a legal scholar, reflecting political choices made in real life with real consequences, instead of writings full of abstract philosophical theory.

So whose name might join the gossip circus now? Sen. Orrin Hatch, R-Utah, former chairman of the Judiciary Committee, has openly lusted for a court seat. Although an ultraconservative, he is fair- minded and could be easily confirmed. Alas, he is 71 years old, a tad ancient for a lifetime seat the president sees as an important part of his historical legacy.

There are other sitting senators as well who are not extremists and could serve honorably with dignity.

Sen. Ben Nelson, D-Neb., a moderate and a leader of the bipartisan "gang of 14'' that derailed a GOP Senate move to kill the right to filibuster judicial nominations, might be an acceptable bipartisan compromise. That also would open up a Democratic seat in a red state that Republicans could reclaim.

First lady Laura Bush is publicly plumping for a woman to replace O'Connor, but gender is not foremost in the minds of most legal interest groups. Bush says he will consider picking a female, but he seems more interested in naming a Hispanic male -- perhaps Attorney General Alberto Gonzales.

Bush also is getting advice from an unusual quarter, the current Supreme Court justices. Senate Minority Leader Harry Reid, D-Nev., said at a recent luncheon that some of the justices said they would prefer "somebody new on the court'' rather than more appellate judges who "sit in their offices and read briefs.''

Despite the importance of the work, it obviously can get boring within those marble judicial halls. Not much dancing in the aisles. But a lot of people would figuratively kill to get there anyway.

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