O'connor and the 2005 Term

[Earl Maltz]

Do you really think that the Democrats would accept McConnell at this 
point?  I don't.

At 11:18 AM 10/27/2005 -0700, Mark Scarberry wrote:
>If Justice O'Connor really wants to be able to get out of Washington to
>spend time with her husband, and if the normal process of nomination,
>investigation, hearings, and confirmation vote will take longer than she is
>comfortable with, what about this possibility.
>
>Perhaps Justice O'Connor could revise her retirement letter to provide that
>she will retire upon qualification of a successor. The President then could,
>during the next "recess" of the Senate, make a recess appointment of a very
>distinguished older circuit court judge, who then would give the President a
>resignation letter effective on confirmation of his or her successor by the
>Senate. This would meet Justice O'Connor's personal needs, provide for full
>staffing of the Court pending Senate confirmation of her successor, allow a
>deserving judge to be honored with a recess appointment to the Court, and
>provide the time for the normal process for selection of the permanent
>successor Justice.
>
>Such an older circuit court judge would not typically be considered for the
>Court now, because presidents are reluctant to nominate anyone over 50 or 55
>(and thus the nomination of a 60 year old person was surprising). It is
>unfortunate that the politicization of the Court means that highly deserving
>older judges are not considered -- and this would be a way of providing
>recognition to at least one of them who would be highly qualified to
>participate in the Court's work as the capstone to his or her judicial
>career.
>
>Assuming this possibility is not beyond the pale, which older circuit court
>judges would be good choices?
>
>Alternatively, of course, the President could quickly nominate someone who
>has already been investigated and whose nomination could be acted on without
>a lot of delay. I'd prefer that approach, and my choice would be Judge
>McConnell. I wonder whether Sandy would consider a quick nomination of Judge
>McConnell to be inappropriate.
>
>Mark Scarberry
>Pepperdine
>
>-----Original Message-----
>From: Janet Alexander
>To: Sanford Levinson; wasb at albany.edu; CONLAWPROF at lists.ucla.edu
>Sent: 10/27/2005 10:41 AM
>Subject: Re: O'connor and the 2005 Term
>
>There is the question of Justice O'Connor's personal situation.  Her
>husband's health is not likely to put itself on hold for a year.
>
>At 11:41 AM 10/27/2005 -0500, Sanford Levinson wrote:
>
>
>Content-class: urn:content-classes:message
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>
>I believe that both were succeeding dead justices, Black and Harlan (or,
>if still living, too debilitated to serve).  And, though I'm ready to
>and corrected, I don't think that H or B had participated in any cases.
>What will happen, e.g., if SDO provides the 5th vote in the Oregon case.
>Will the SC majority try to rush it out?  Will a dissenter develop a
>slow pen or broken computer.  Will casesBe dismissed as improvidently
>granted because the newcomer would not have provided SDO's 4th vote?
>
>I stand by my previous posting.  It's time for a cooling off period.
>
>Sandy
>- Sanford Levinson
>(Sent from a Blackberry)
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>Janet Cooper Alexander
>Frederick I. Richman Professor of Law
>Stanford Law School
>Stanford CA 94301-8610
>650.723.2892
>
>
>  <<ATT2119109.txt>>
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