July 18, 2005

Laura Bush's role in the nomination process.

I was struck by this dialogue, on Fox News Sunday, about Bush's plans in picking a new Supreme Court justice:
Bill Kristol: Mrs. Bush said this week that she hoped her husband would name a woman. I think that was her way of gently letting down Attorney General Gonzales, signaling that he probably wasn't going to get the pick.

Brit Hume: So the President suggested she do this?

Bill Krisol: I think... well... The President afterwards: Gee, she said that? I wasn't aware of that. I talked to her on the phone yesterday, but I didn't know she was going to say it in public. She's pretty careful, and they're pretty close. I think he wants to pick a conservative woman. There are plenty of conservative women -- on the federal appeals court, at distinguished law schools, on state supreme courts...
Interesting that he mentioned law schools second, before state courts. How stunning it would be to pick a lawprof. Who are the female constitutional law professors who are not only "at distinguished law schools," with the highest level credentials, but whose writings will stand up to the intense political scrutiny that all sorts of people will subject it to? I think it's much easier to find judicial candidates among judges, because judges behave like judges. Lawprofs don't seem judgely enough. There's too much personal freedom in the lawprof game. One plays with ideas and enjoys intellectual exercises too much not to lay the basis for a formidable attack by your opponents.

But what's really interesting in that dialogue is the notion that this seemingly off-the-cuff statement by Laura Bush was deliberately planned. I'd assumed Laura really had influence with her husband about the substance of the choice, but Kristol portrays her as a brilliantly useful mouthpiece. I wrote that Laura's influence would be in favor of Gonzales, based on what I presumed was her concern about preserving abortion rights. But that doesn't conflict with what Kristol said: her behind-the-scenes influence and her public statements are two different things.

In the NYT, Elisabeth Bumiller confirms Kristol's take:
When Laura Bush said in a television interview last week that she hoped her husband would name a woman to succeed Justice Sandra Day O'Connor on the Supreme Court, a lot of people saw it as a top item on the first lady's "honey-do" list. But Republicans close to the White House said that people had it reversed. Mrs. Bush, they said, was not so much nudging her husband as reflecting his thinking.

The current consensus among Republicans with close access to the White House is that President Bush is interested in picking a conservative woman for the court. Mrs. Bush's words, they said, were the most powerful evidence so far.

"It says that they're looking very carefully at a woman," said a Republican with longtime ties to the White House. "I don't think she would have said it without knowing something." This Republican, like a number of others interviewed, asked not to be identified because the White House had ordered its allies not to talk about a Supreme Court selection process that it is trying to keep confidential.
Kristol didn't seem to mind blabbing.

By the way, Bumiller's article includes the name of one woman lawprof: Mary Ann Glendon.


nypundit said...

Althouse for SCOTUS!

Mark Daniels said...

For all the speculation I've done about the President possibly nominating an easily-confirmable Senator, perhaps politically, it does make sense that the nominee will be a woman and there are no easily-confirmable women from the Senate who would pass the conservative litmus test.

As to your main question about whether Laura Bush is a valued adviser or a mouthpiece for any White House strategy, I daresay that she is both. There's no reason why she couldn't have input on a decision like this and then give an advance public hint once the White House has decided on its basic direction. (My guess is that the President hasn't decided on a specific nominee but has decided that he must nominate a woman to take O'Connor's place.)

It does appear that Laura Bush's statement puts the definitive kibosh on a Gonzales nomination.

Gerry said...

I was about to post a link over to Erick Ericsson's post on Red State where he said he's been hearing a lot from his near-administration sources about Glendon.

You are right that law profs would tend to leave a pretty sizeable paper trail. However, unlike judges the paper trail would probably be one of clarity. If Bush does nominate Glendon, he would be inviting a pretty serious national discussion on the merits of her writings.

I think it would be refreshing. The more I read about her, the more I like her. She's probably not at the top of my "wish" list, but she's moving up it with a bullet.

Gerry said...

Case in point. Here is a reproduction of one of her writings.

It is pretty unambiguous. I would much prefer to see the nation debate what she said in here, than picking through if Owen was a radical for coming down on one side of a parental notification case while Gonzales came down on the other.

I think that her nomination would lead to more high-minded argumentation than the typical partisan mudslinging. Maybe it is because I love discussions over philosophy and am letting that make me overly optimistic as to how such a nomination would be handled. :-)

Bruce Hayden said...

Well, you did vote for her husband last election. But, in the end, I suspect that you are not nearly conservative enough (actually, not sure if you really much conservative at all - just logical).

Bruce Hayden said...

Two reasons that this line has come up, both interrelated. First, Mrs. Bush is supposedly mildly pro-choice, or at least not militantly pro-life. And secondly, she is supposed to be quite a bit more moderate politically than her husband.

So, no surprise that you are getting a lot of wishful thinking here.

Bruce Hayden said...

I concur that the paper trail of an academic is more likely to be pretty clear, as opposed to that of a judge.

But that is as likely to cut against the candidate than in favor. Any candidate who openly espouses adhearance to Roe v. Wade, and predecessors, is unlikely to get to first base.

Far better if there is a bit of judicial ambiguity.

Ann Althouse said...

Bruce: I voted for Bush based on national security issues. I'm not a social conservative. In any case, you haven't read my articles. Anyway, the big problem with an academic is that you see how the person behaves in an academic context, not how they would behave in the role of judge. Frankly, I have no idea how I would act if I actually had the power and authority of being a judge. The role change would change me.

Sean said...

Isn't Glendon too old? Her bio makes her appear about 67. I think the administration wants someone about 45.

Ann Althouse said...

Re age: I've heard 60 and alternatively 55 as the Bush age cut off. Maybe it should be higher for women, since we do live longer. Is anyone on the short list only 45? Maybe one. It's scary to think that someone appointed this year might still be making decisions for everyone in 2050!

EddieP said...

Is it too late to get the Althouse for SCOTUS meme in circulation?

in_the_middle said...

if they did start circulating ann's name, would she be compelled to change the photo on her blog complete with the menacing 'i'm going to scold the entire country in one opinion' look on her face?

Becker said...

Ann doesn't stand a chance. Remember the lobster? PETA, etal would impale her...

Tom T. said...

Professor Lillian BeVier was nominated to the Fourth Circuit by the elder Bush, although that nomination died in Congress. I've heard her name thrown about as a possible S.Ct. candidate, but she may be a bit too old at this point.

Bruce Hayden said...


Haven't read that much of your stuff, but not the least bit surprised from your blog that you are not a social conservative. Despite my family's suggestion to that effect, neither am I. I consider myself a national security hawk, a fiscal conservative, socially moderate, and somewhat libertarian.

Let me suggest however that academics do have much more of a paper trail than do most of us in private practice. Sure, some of what you disclose when you "publish or perish" is your legal reasoning ability. But also, I would suspect that much legal academic writing gives away the writers political biases, if, for no other reason, than for the subject written upon.

Yes, being a judge would change most of us. I would suggest though that I, and probably most of us, could survive as an appealate judge much better than as a trial judge, as they are the ones who really make the day to day hard decisions - whether to send someone to jail for a big chunk of his life, etc.

Growing up somewhat in the legal community west of Denver (my father practiced here for 47 years), I knew a lot of trial level judges. Most are retired by now, but still know a couple of that generation still on the bench. I, for one, would have a very hard time with their jobs.