O'connor and the 2005 Term

[Paul Horwitz]

More specifically, the question is how the Gang of 14 would feel about any 
given nominee.


>From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>To: <conlawprof at lists.ucla.edu>
>Subject: RE: O'connor and the 2005 Term
>Date: Thu, 27 Oct 2005 11:48:59 -0700
>
>	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
> > >
> > >
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