ConfirmThem

With the release of today's opinions, it seems certain Scalia will write Heller. My fear? Kennedy will write a concurring opinion which will water down Scalia's original plurality opinion and therefore actually be the controlling opinion in this case.

Just FYI - the reason that it looks like Scalia has the Heller opinion is that Heller is the only undecided case remaining from the March sitting, and Scalia is the only Justice who has not authored an opinion from that sitting. It's long been the practice of the Court to distribute the opinions in each session as evenly as possible. I'm feeling guardedly optimistic about Kennedy on this one - he doesn't engage in nearly as much of the tentative, limiting concurrences that were O'Conner's calling card.

with Breyer as the other justice in favor of private ownership.

However, as Bobo notes, the crux will be in the allowed restrictions on the right.

I thought someone at Volokh made a good point about Scalia writing the majority: Roberts would not have assigned the opinion in such a major case to Scalia if the majority was fragile. Therefore, it may be reasonable to assume that there are five solid votes (the tenor of oral arguments also seems to comport with this view).

Is this the most important, high-profile case Scalia has ever authored? He's written some well-known dissents, of course. And some lesser known majority opinions. It will be nice to have Scalia cited not simply because he articulates a sound idea, but because his view represents the law of the land.

Of course, this is all assuming Scalia actually writes the opinion.

and laziness, but is Heller the 2nd Am. case?

Do I understand correctly that the decision will be handed down today? I'm hopeful that macc's analysis proves to be true.

Any speculation on a surprise retirement?

Heller is the Gun Case.
It was not handed down today.
It will be handed down either Thursday or Friday of this week. (unless they decide to have an additional sitting next week {very unlikely})
No one will quit SCOTUS voluntarily during an election year.

Thanks for the answers.

I threw the retirement one in for fun. There's been a fever swamp at this site almost every year at this time. So, I just thought I'd toss the golden apple of discord into this thread!

The only day we know for sure that the judges will meet is Wednesday as they announced this morning.

Generally they give out decisions on Mondays.

If there are a lot to do then they do Mondays and Thursdays.

If there are a whole lot to do then they do Mondays, Wednesday, and Thursdays.

They have 10 decisions to announce this week if they hold to tradition and end the session this week.

They did 3 today so that leaves 7. They don't generally do more than 5 in a single day so they will probably have 3 more on Wednesday and 4 on Thursday.

If I was Scalia, I would insist as best I could, to announce Heller on Thursday to get the maximum bang for the buck.

The other way to go would be for them to announce 5 decisions on Wednesday and save Thursday for Heller and the last ever Stevens decision (okay .. I'm just hoping).

On this one, I'm not too worried about Kennedy. He was arguably the strongest pro gun voice at oral argument.

He overruled Miller from the bench and when Heller's lawyer kept trying to work around it Kennedy finally had to flat out tell him "I'm suggesting Miller isn't as strong as you think it is" until he got the messsage.

Kennedy is wierd in that he's all over the place but once he's at a place he doesn't leave.

Look for example at the FEC case last year, where Kennedy joined Scalia and Thomas in being willing to overrule McConnell but it was Roberts and Alito who were reluctant and wrote a more limited opinion.

If anyone was squishy on the standard of review it was Roberts.

Given that he seems to have assigned it to Scalia, though, it does appear that they're in agreement on that issue. It would be odd for Roberts to assign him the opinion and then sandbag him by concurring only in the judgment and limiting his holding.

I think Roberts also knows that this case is the most watched case by conservatives since Casey. A strong opinion that finds an individual right and applies strict scrutiny(or even a tough intermediate scrutiny) would be a huge victory. Perhaps this was his way of rewarding Scalia for his 20+ years of service. Scalia has been the conservative Justice the past 20 years and led the originalism/conservative revolution, was instrumental with the Federalist Society, etc... I thik Roberts may sense that with Obama winning the election or even if he doesn't it's unlikely Roe is going away anytime soon so he wants to give Scalia his legacy now.

Tom Goldstein at SCOTUSBlog thinks the justices will adjourn on Thursday of this week with their final decisions.

http://thehill.com/leading-the-news/reid-announces-senate-votes-on-judge...

"Senate Majority Leader Harry Reid (D-Nev.) on Monday announced that the chamber would vote Tuesday on a handful of judgeships that have stymied legislative action in recent weeks.

Reid made the announcement abruptly during brief remarks on the Senate floor. His office and Judiciary Committee aides later confirmed that two circuit court nominees and three district court nominees will receive votes.

“Sen. Reid is working to have the Senate confirm a number of judges as early as Tuesday afternoon, consistent with our efforts to treat President Bush’s judicial nominees with more respect than President Clinton’s nominees received from a Republican Senate,” said Reid spokesman Jim Manley.

The circuit court nominees are Helene White and Ray Kethledge, both nominated for Michigan seats on the Sixth Circuit Court of Appeals. The district court nominees are G. Murray Snow of Arizona, William T. Lawrence for the Southern District of Indiana and Steven Murphy for the Eastern District of Michigan.

Republicans have been pushing Democrats to confirm at least 15 appellate court nominees by the end of this Congress, the historical average in the last two years of recent presidencies. So far, the Democratic Senate has approved eight judges to the appellate bench. Democrats say Republicans are blocking the nominations through the Judiciary Committee."

http://www.rollcall.com/news/26163-1.html

"After weeks of partisan infighting over President Bush’s stalled judicial nominations, Senate Majority Leader Harry Reid (D-Nev.) indicated Monday that the Senate will vote Tuesday on as many as five lifetime appointments to the federal bench."

Something appears to have gone awry with the nomination of David Novak (VA-E). He had his hearing on 4/3, along with Davis, Kays and Limbaugh. Those three were voted out of committee on 4/24 and have since been confirmed. Lawrence and Snow were voted out of committee on 5/22, and are now set to be confirmed tomorrow. Yet, no word on Novak. This seems odd to me, as Novak and Davis were both recommended jointly by Warner and Webb, and the other nominees that emerged from that process have moved forward swiftly (Agee, Davis). Meanwhile, Novak lingers in committee, temporarily joining Puryear and Honaker (hearings held on 2/12) in limbo.

I haven't heard anything new about Novak that would explain a change in attitude towards the nomination. Has anyone else heard something?

I believe he received some extra written questions from SJC members and he is yet to return it. I do not know if he is just being lazy/busy or if they are going on a witch hunt. (The latter is more plausible). Come on guys its just a lousy DJ spot, just let him through.

After all, we know Leahy is processing nominees faster than ever has been done despite GOP obstruction at every turn.
~~
Obama's guiding principle: "I reserve the right to revise and extend my remarks."

http://www.abanet.org/scfedjud/ratings/ratings110.pdf

Close to my prediction date (6/23), Glen Conrad got his ABA rating today. He received a WQ(m)/Q(min), the same rating Helene White got. I expect him to be confirmed in July as a way of delaying any action on Keisler, Conrad and Matthews.

http://www.michiganmessenger.com/showDiary.do?diaryId=1472

"White was initially nominated for the 6th Circuit Court of Appeals in 1997 by President Clinton, but the Republican majority never brought her nomination up for a vote. Then-Sen. Abraham blocked her nomination, and when Clinton left office in 2001, the nomination officially died. It remains the longest judicial nomination in American history not to have received a vote. Sen. Levin, in apparent retaliation for the blocking of White's nomination, has been blocking Kethledge's nomination for the last two years, demanding that President Bush nominate White along with Kethledge before he will allow a vote on his nomination (under Senate rules, a senator may indefinitely prevent any judicial nominee from his or her home state from getting a confirmation vote; this process is called blue-slipping). Bush agreed to renominate White in April.

In order to make room for White, the White House had to withdraw the nomination of Stephen Murphy III, the U.S. attorney for the Eastern District of Michigan. Murphy's nomination for the appeals court was withdrawn, and he was nominated instead for a position as a district judge for the federal court in Eastern Michigan.

Despite Republican complaints about the Democratic Congress holding up judicial nominations, Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, reported recently that judicial vacancies are lower as the end of the Bush presidency nears than they were in 2000 when Clinton was preparing to leave office."

BoBo, that article you quote above is of course wrong when it says White's nomination "remains the longest judicial nomination in American history not to have received a vote." She was nominated in 1997 and her nomination officially died at the beginning of 2001, so at most she spent four years waiting. Terence Boyle was nominated in 2001 and finally withdrew in 2007. His nomination easily languished quite longer than White's. If the article is trying to suggest that White's nomination has lasted from 1997 to the present, the author is smoking crack.

Sen. Abraham had his reasons - the following is an excerpt from a Dec 4, 2001 piece in the WSJ:

That leaves the implication that the [Helene] White and Lewis nominations were stalled because of sheer partisanship, thus justifying retaliation now that the Senate is in Democratic hands. But the story is a bit more complicated.
Helene White happens to be the wife of Carl Levin's cousin Charles Levin, a former member of the Michigan Supreme Court. In 1996, Judge White was threatening to run as an independent for the state Supreme Court. This horrified Michigan Democrats, who feared that she might draw off a big chunk of the liberal vote. The White House, according to state political sources, was persuaded to forestall that possibility by nominating her for a seat on the Sixth Circuit. (The Democratic candidate went on to lose anyway.)

But her nomination outraged then-Sen. Spencer Abraham, a Michigan Republican who is now secretary of energy. Mr. Abraham traded his help for getting three Michigan nominees to the federal courts approved by the GOP Senate in exchange for Clinton-judge pickers holding off on further nominations.

When the White House went ahead with the White nomination anyway, Sen. Abraham made no secret of his feeling that he had been double-crossed. He then placed his hold on the White nomination and later the Lewis nomination.

[Footnote - Apparently, Helene White and Charles Levin divorced in 2006]

Any news on the hearings and votes for Kethledge and White?

It would seem to make sense for Bush to nominate someone to G. Conrad's seat now so that there might be a chance to fill that vacancy when it occurs, probably in July as BoBo has perceptively noted.

http://youtube.com/watch?v=aA0nld86tGw&feature=related

The Senate just started 4 hours of debate on the White nomination. After that debate there will be votes on White, Kethledge and Murphy.

The votes for the other two district nominations will be on Thursday.

If White is NOT confirmed (not likely) the agreement is "null and void" and the votes on all other nominees will be cancelled.

Reid just announced an unanimous consent agreement that White be voted on today. IF she is confirmed, then a vote on Kethledge and White will occur today to be followed by a vote on Lawrence and Snow on Thursday.

It's been 14+ months since the SC upheld the partial birth abortion ban.

To my knowledge not one indictment has been handed down and no one has been prosecuted under it.

It's highly unlikely that doctors just stopped performing them. So it appears that the whole thing was just for show and the administration never really had any intention of enforcing it.

Since then two state bans on partial birth abortion have been struck even though the SC upheld the federal ban. Hopefully the 4th circuit en banc reverses the panel that struck the VA ban, or if not the SC takes the case and reverses. So, even with it being upheld, partial birth abortions have continued unabated.

What a disappointment.

He says that he is afraid that Republicans are trying to scuttle the "bipartisan" agreement between the White House and Levin/Stabenow concerning White/Kethledge/Murphy by voting White down on the Senate floor.

He says that Republican claims that White is not experienced enough are hogwash. He compares her 15 years as a state appellate judge to the nonexistant judicial careers of Jennifer Walker Elrod, Catharina Haynes and Raymond Kethledge. He compares White's career up to this point to career of Sandra Day O'Connor before her confirmation to the Supreme Court.

He claims that the Republicans are being obstructionist, not the Dems. He points out how the Republicans would not allow White to be confirmed before Memorial Day. He says all the Republican hullabaloo about Keisler, Conrad and Matthews is obstructionist in nature and obstructs the SJC from the consideration of matters more important to the average American. The Republicans are only trying to find an election year to energize their conservative base in favor of McCain, they are not really interested in what "real" Americans want, blah, blah, blah.... Clinton nominees in 1996...blah, blah, blah

After reciting a long (and IMHO useless) history detailing the degradation of the judicial confirmation process, Specter finally starts talking specifically about White.

First, he talks about how the Dems could've confirmed Keisler, Conrad and/or Matthews rather then White BEFORE Memorial Day in order to meet the requirements of Reid's initial promise of three circuit court confirmations. They chose not to even though all three had been in committee much longer than White.

Then Specter goes into a long (and again, useless) discussion of the role of circuit court judges. Somehow this ends up with Specter explaining how many Republicans on the SJC were upset that White did not provide copies of her unpublished opinions that were later reversed by the Michigan Supreme Court. He says that White in her hearing couldn't answer Specter's "simple" questions about these opinions.

After brief comments by the two Michigan senators, there will be a roll call vote on White. If confirmed, then Kethledge and Murphy will be confirmed by voice vote. Specter explains that the purpose of his previous comments is to explain why some Republican senators may vote against White. There is ample evidence that she doesn't properly understand criminal law, and a vote against her is not just obstructionism.

He said that the Dem senators from Maryland, New Jersey and Rhode Island have not returned blue slips for Rosenstein, Stone and Smith.

I'm not surprised on the blue slips, but that doesn't explain Keisler, Conrad, and whoever my headache is keeping me from forgeting.

White confirmed

Both by voice vote

http://www.usatoday.com/news/washington/judicial/2008-06-24-mich-nominee...

"The Senate confirmed three Michigan judicial nominees Tuesday, sending a former Clinton era nominee to the federal bench more than a decade after her initial nomination stalled in a partisan dispute.

The Senate approved Michigan Court of Appeals Judge Helene White to the 6th U.S. Circuit Court of Appeals on a 63-32 vote, ending a contentious process that involved two presidents and lengthy Senate negotiations.

It also confirmed Raymond Kethledge, a Troy attorney, to the Cincinnati-based 6th Circuit and U.S. Attorney Stephen J. Murphy of Detroit to a vacancy on the U.S. District Court for Michigan's Eastern District. Both were confirmed on voice votes.

Sen. Carl Levin, D-Mich., said he was thankful to Senate leaders for making "it possible that we can finally, hopefully, resolve this Michigan issue that has been stymieing the 6th Circuit and the Eastern District for far too long."

"She has been waiting more than 11 years for this vote," said Sen. Debbie Stabenow, D-Mich.

The 6th Circuit vacancies have been at the center of a long-standing partisan fight. White was originally tapped for the 6th Circuit in 1997 but Sen. Spencer Abraham, R-Mich., and the Republican-controlled Senate blocked her bid, forcing her to wait more than four years without a hearing before President Bush withdrew her nomination in 2001.

After Bush's election in 2000, Levin and Stabenow led filibusters against several Bush nominees from Michigan in response to the Republicans' refusal to hold hearings on White and Detroit attorney Kathleen McCree Lewis, who died last year.

But after extensive negotiations, White was nominated by Bush in April as part of a compromise with Levin and Stabenow. The 6th Circuit vacancies have been called judicial emergencies because of the length of their openings.

Republicans questioned the speed with which White's nomination was considered by majority Democrats. Pennsylvania Sen. Arlen Specter, the top Republican on the Judiciary Committee, noted that several other Bush judicial nominees have been awaiting hearings for months.

"They should have been the ones" to be considered, Specter said.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said White should be considered a consensus confirmation because she was nominated by both Clinton and Bush and the current White House characterized her as "an experienced and highly qualified judge."

"He deserves great credit for trying to close the door on a sorry chapter," Leahy said of Bush."

Now why doesn't Leahy close the door on another sorry chapter and confirm Conrad, Matthews, and Keisler, who have been nominated to seats that have remained vacant for years, including over a decade in the case of the NC seat. What a "sorry chapter"!