October 29, 2005


Bush narrows Supreme Court selection to 2, sources say (JAN CRAWFORD GREENBURG, 10/29/05, Chicago Tribune)

With an announcement expected Sunday or Monday, administration officials have narrowed the focus to Judges Samuel Alito of New Jersey and Michael Luttig of Virginia, sources involved in the process said. Both have sterling legal qualifications and solid conservative credentials, and both would set off an explosive fight with Senate Democrats, who are demanding a more moderate nominee to replace Justice Sandra Day O'Connor.

Sources close to the process cautioned that Bush still could pick someone else, noting that he had wanted to name a woman to replace O'Connor. He had considered Priscilla Owen of Texas, another federal appeals court judge, before tapping Miers, and she remains a distant possibility, administration sources said.

But sources in the administration and others involved in the process - outside the handful in Bush's tight inner circle who were weighing the selection this weekend at Camp David - said a nominee other than Alito or Luttig would come as a surprise.

"Those are the only two names anyone is aware of," said a source who has been closely involved in the selection process and who asked not to be identified. [...]

By nominating Alito or Luttig, Bush would electrify his supporters who have been in open revolt over the Miers nomination.

"They are widely respected among the bench and bar nationally for being careful jurists, faithful to the Constitution and proponents of judicial restraint," said Wendy Long, chief counsel of the Judicial Confirmation Network, a conservative legal group that did not embrace Miers. "They have so much in common substantively that their differences are more stylistic."

Alito, 55, has been on the Philadelphia-based federal appeals court for 15 years; Luttig, 51, has served on the Richmond-based appeals court for 14 years. Both men worked as lawyers in the Reagan and George H.W. Bush administrations. Alito was the U.S. attorney in New Jersey before his appeals court nomination; Luttig had worked in a prominent law firm before joining the government.

"In some ways, they're a lot alike. They are both brilliant, and they don't go out of their way to show you that," said John Nagle, a professor and associate dean at Notre Dame Law School who knows both men. "They are really personable guys to be around, but in different ways."

Alito, the son of two public school teachers who grew up in Trenton, N.J., is more reserved and soft-spoken. He often is called "Scalito" because his intellect and Italian heritage draw comparisons to Justice Antonin Scalia. But his personality and self-effacing manner are completely different from those of the boisterous and, at times, bombastic Scalia.

Luttig, who grew up in Tyler, Texas, where his father was a petroleum engineer, is more outgoing, and he still possesses a prominent Texas accent. In some ways, he is more like Scalia, for whom he clerked when Scalia was on the federal appeals court. Like Scalia, his writing style is crisp and clear, and he is willing to confront colleagues head-on when he believes they don't adhere to established law. As a result, he sometimes reaches decisions that cannot be considered conservative.

"As judges, Mike has been more aggressive in his opinion writing and not shied away from expressing things," Nagle said. "Mike has a reputation for being more provocative, but my sense is it's always been a passion for getting the law right."

Justice Alito? Some Say He's a New High Court Favorite (Shannon P. Duffy, 10-31-2005, The Legal Intelligencer)
The short list of potential nominees to the U.S. Supreme Court suddenly appeared much shorter Friday as 3rd U.S. Circuit Court of Appeals Judge Samuel A. Alito Jr. quickly emerged as perhaps the most likely second choice to fill Justice Sandra Day O'Connor's seat.

In the wake of Harriet Miers' withdrawal of her nomination, the New York Times reported Friday that Alito was one of three "finalists" three weeks ago when Miers was chosen. The other, according to the Times, was 4th Circuit Judge J. Michael Luttig. Hours later, on the popular law blog, SCOTUSblog.com, attorney Tom Goldstein was predicting that Alito would be picked -- and soon.

If he doesn't pick Luttig he's FDR without the limp.

Luttig, Alito contenders as Bush mulls court pick (Caren Bohan, October 29, 2005, Reuters)

Luttig, 51, a judge on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, worked as a clerk for Scalia when Scalia was an appeals court judge.

He helped in the effort to get Thomas and Supreme Court Justice David Souter -- both nominated to the high court by Bush's father -- confirmed by the Senate. Luttig also has worked in the Justice Department and private practice.

Oops, Luttig gave us Souter? If the President doesn't pick Alito he's Karl Marx without the beard.

Posted by Orrin Judd at October 29, 2005 8:37 PM

Both seem to be strong candidates and acceptable to the NRO etc crowd. The worry however is given the misdirection often used by the WH it could be someone else (McConnell). Then again the WH might feel that the base is so fired up it might play this one straight up.

Posted by: AWW at October 29, 2005 10:37 PM

margaret dumont was a "beard" ? that harpo always did seem a little light in the heels

Posted by: pol pot position at October 30, 2005 12:02 AM

If it is one of these two, then the idea that Miers was a ploy to get every conservative in the nation solidly in his corner becomes a little more credible. Still not very credible, but moreso.

Posted by: Timothy at October 30, 2005 12:55 AM

After the behavior of some at the National Review, I worry about any nominee who does not at least mildly annoy them.

Posted by: Jim Miller at October 30, 2005 8:37 AM

Jim - I think it is more likely that Bush appoints someone NRO is pushing and then that judge turns out to be another Souter. Of course NRO will forget that they pushed for that judge and criticize Bush for the pick.

Posted by: AWW at October 30, 2005 10:25 AM

Or what happens when the screechers get their pick, and the Dems, as expected, are successful in blocking him/her/it? When the fight starts to get nasty, I really do expect to see a number of the screechers (Will in particular) advocating an advance to the rear.

Posted by: Raoul Ortega at October 30, 2005 11:43 AM

I will be quite shocked if it is either Alioto or Luttig. They would be fine but there are too many leaks for them to be the one. Note that the leaks are not coming from Camp David where the decision is being made by the President, Card and Miers.

Posted by: Bob at October 30, 2005 12:55 PM


They're leaking to get reactions from the Right. This Administration leaks when it serves their purposes, a la the yellowcake affair.

Posted by: oj at October 30, 2005 12:58 PM