O'connor and the 2005 Term

[Volokh, Eugene]

	The question is whether several Democrats would accept him, even
if most will oppose him.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
> Sent: Thursday, October 27, 2005 11:27 AM
> To: Scarberry, Mark
> Cc: conlawprof at lists.ucla.edu
> Subject: RE: O'connor and the 2005 Term
> 
> 
> 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
> >Content-Type: multipart/alternative;
> >         boundary="----_=_NextPart_001_01C5DB15.4E646939"
> >
> >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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