October 30, 2005


SCOTUS (Washington Prowler, October 30, 2005, American Spectator)

According to sources in both the White House and Senate leadership, the President is poised to nominate Federal Appeals Court Judge Samuel Alito on Monday morning. [...]

According to White House sources, if Alito does beat out Luttig it will be based on the White House quest for what they are calling "consistency." Those who have evaluated the potential nominees believe Alito is more likely to remain a consistent, conservative judge on the Supreme Court bench than Luttig, who some inside the White House believe would have the potential to "grow" on the bench. As one White House staffer told us earlier in the weekend, "We're not talking about much of a difference. The President could go either way."

Such hair-splitting can hardly make one proud to be a conservative, but if he nominates Luttig he's Rousseau without the abandoned children.

So, Do You Believe in 'Superprecedent'? (JEFFREY ROSEN, 10/30/05, NY Times)

[S]ocial conservatives face a problem: a new theory of "superprecedents" that is gaining currency on the right as well as the left.

The term superprecedents first surfaced at the Supreme Court confirmation hearings of Judge John Roberts, when Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, asked him whether he agreed that certain cases like Roe had become superprecedents or "super-duper" precedents - that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn. [...]

But the idea of superprecedents is more powerful than a simple affirmation of stare decisis. An origin of the idea was a 2000 opinion written by J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit, who regularly appears on short lists for the Supreme Court.

Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."

Before the Roberts confirmation hearings, Mr. Specter talked informally to several law professors, including this writer, who mentioned the theory of super-stare decisis, noting that Judge Luttig thought it was important that Roe had been repeatedly reaffirmed by different Supreme Courts, composed of justices appointed by presidents from different parties and confirmed by Senates controlled at times by Democrats and Republicans.

And Mr. Specter adopted this theory.

Arlen Luttig?

Posted by Orrin Judd at October 30, 2005 8:11 PM

I'm still swimming upstream in my hopes Alice Batchelder will be the nominee. There's not a conservative, neo or theo, who could rationally disagree with this choice.
Add to that my opinion she'd be the least confrontational and most confirmable of a great list of candidates and, outside of a Miers faction in the WH, exposed inadvertently by Hume on FNC, which evidently trashed her, I can't think of anybody to the right of where Hillary wants us to believe she is, who could oppose her.
I, of course, just my state of CA's JRB, but the confirmation battle would not be worth the effort, we all know she'd be filibustered.

Posted by: Mike Daley at October 30, 2005 9:01 PM

"Such hair-splitting can hardly make one proud to be a conservative, but if he nominates Luttig he's Rousseau without the abandoned children."


And the idea that RvW is "super-precedent" is demented. They haven't even figured out what the rationale for the holding was. Read Lawrence, where they try substantive due process on for size.

Posted by: Robert Schwartz at October 30, 2005 9:08 PM

Damn it, why can't I ever stick to my picks?

The same thing hurts me in NFL Pick'em, too.

Posted by: Matt Murphy at October 30, 2005 9:14 PM

Even Rousseau hoped the judges were Christian so they wouldn't steal the silverware.

Arlen Luttig? It's more like Bluto Specter, placing the nominees on Super-Double-Secret-Precedent-Probation.

Fat, drunk and stupid is no way to go through life--but that hasn't stopped Teddy.

Posted by: Noel at October 30, 2005 10:01 PM

Luttig's "superprecedent" remark was merely descriptive of what he thought the Supreme Court may have intended in light of its reversal of the 4th Circuit's ruling upholding a PBA ban. It was anything but an endorsement. Luttig's career demonstrates beyond question that he is not a respecter of the Supreme Court's bad precedents when he doesn't have to be (that is, he reads them narrowly). Luttig is a conservative's conservative, one of the best we've got. Any thought that he's a squish is silly.

Posted by: rds at October 30, 2005 10:04 PM

The dismanteling of the baby-murder machine will not be so rapid as either the pro-lifers hope or as the pro-death side fears.

Look for opinions critical of Roe v. Wade but leaving it in place as slices of its legacy afre removed. The opinions will contain language such as, "Our holding today makes it unnecessary to consider at this time whether Roe should be overruled."

Judicial restraint, remember? Appellate courts should decide only the case before them and leave undisturbed anything not required to be disturbed to reach to correct result in that individual case.

Posted by: Lou Gots at October 31, 2005 5:41 AM


The Little Rascals don't like girls.

Posted by: oj at October 31, 2005 6:27 AM


There's no defending Arlen Luttig--the gnostic know he's a crypto-Souter.

Posted by: oj at October 31, 2005 6:56 AM

Actually, to woo Specter, all a nominee has to do is start citing Scottish law.

Posted by: ratbert at October 31, 2005 11:48 AM