How Appealing

Sunday, July 3, 2005

Access online the transcript of today’s broadcast of the CBS News program “Face The Nation“: The program, which I referred to earlier today in this post, focused on the retirement of Justice Sandra Day O’Connor and its consequences. You can access the transcript here.

Posted at 5:15 PM by Howard Bashman

“Swing voter: The departure of Sandra Day O’Connor sets the stage for a nasty judicial confirmation battle — and maybe an even more conservative Supreme Court.” David Paul Kuhn has this report online at

Posted at 5:12 PM by Howard Bashman

“A Feminist Folk Hero (Sort Of); Sandra Day O’Connor managed to both support and curtail conservative social restrictions”: Adele M. Stan has this essay online at The American Prospect.

Posted at 5:10 PM by Howard Bashman

“Reversing the Bork Defeat: With a Republican Senate, President Bush has the chance to succeed where Reagan failed by getting a conservative constitutionalist confirmed to the Supreme Court.” William Kristol has this essay online at The Weekly Standard.

Posted at 4:35 PM by Howard Bashman

Available online from The New Republic: Law Professor Cass R. Sunstein has an essay entitled “Old School: Why it was easy to forget that O’Connor was a conservative.”

Law Professor William J. Stuntz has an essay entitled “Power Surge: O’Connor became too comfortable exercising power.”

And Law Professor Richard L. Hasen has an essay entitled “Rock the Vote: O’Connor’s departure portends a major shift in election law; And not for the better.”

I’ve provided pass-through links to the two items that TNR posted as subscriber-only content. Soon, I hope to provide a pass-through link to Law Professor Jeffrey Rosen‘s latest essay, which TNR posted online today, entitled “Counter Evolution: Conservatives want a justice who won’t drift left once confirmed; History suggests they have less to worry about than they imagine.” [Update: Here it is.]

Meanwhile, Marty Lederman questions TNR’s online business model in this post at “The Supreme Court Nomination Blog.” (I previously provided, back in November 2004 when TNR first posted the piece online, a pass-through link to the Jeff Rosen essay that Marty mentions in his post.)

Posted at 2:50 PM by Howard Bashman

“Judge’s actions speak louder than words”: The San Antonio Express-News today contains an article that begins, “While the question of who will become the next U.S. Supreme Court justice is a full-time guessing game in Washington, San Antonio faces a mystery on its own doorstep: Emilio who? The San Antonio native widely considered a leading contender to fill the vacancy created by Justice Sandra Day O’Connor’s resignation Friday is virtually unknown in the county where he was born, raised and still resides.”

Posted at 2:28 PM by Howard Bashman

“Is GOP eroding states’ rights? From the Terri Schiavo case to driver’s license standards and LNG terminals, the federal government, some contend, is broadening its control over America.” This article appears today in The Mobile Register.

Posted at 2:25 PM by Howard Bashman

“Liberals gird for Supreme struggle”: The Washington Times today contains an article that begins, “A group of the most influential liberal court lobbyists gathered in a high-ceilinged room across the hall from the Senate chamber, within hours of Supreme Court Justice Sandra Day O’Connor’s retirement announcement Friday.”

Posted at 12:11 PM by Howard Bashman

Former U.S. Supreme Court nominee Robert H. Bork speaks about Justice Sandra Day O’Connor and her judicial philosophy: He appeared live on CNN on Friday, where he was interviewed by Daryn Kagan. Here’s a snippet from the transcript:

KAGAN: Your comments today on Sandra Day O’Connor and her legacy on the court, please.

JUDGE ROBERT BORK, FMR. SUPREME COURT NOMINEE: Well, she’s a very nice person, but she is — as a justice, she has been — they call her the swing vote. That’s true. But that means that she didn’t have any reaffirmed judicial philosophy.

However, on the crucial cultural question, she has lined up with the liberal side on abortion, on affirmative action, homosexual normalization and so forth.

KAGAN: Excuse me. Judge Bork, do you think it’s fair to say she didn’t have an judicial philosophy? Perhaps that she didn’t have the same judicial philosophy that you share. But she probably — she possibly had a more moderate philosophy and was expressing that as a swing vote on the high court.

BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution.

She departed from it frequently. So that I wouldn’t call that moderate. I would call it unfortunate. But she is — she is — as a result, she often determined the outcome by swinging from one side to the other.

KAGAN: OK. Instead of looking back on Judge O’Connor, let’s look forward.

Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don’t want to happen. A lot of people — a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it’s been Justice Kennedy, who has been more moderate than a lot of people think.

BORK: I wish you would stop using the word “moderate.” But go ahead.

KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court.

BORK: I would call it activist.

KAGAN: OK. So you would like to see — actually, you bring up a good point. This is a time in U.S. history that’s not just talking about who is going to be the next person on the U.S. Supreme Court, but when the whole topic of what the judicial system and how it operates in this country is up for debate.

BORK: That’s right, because it’s really a cultural fight now. The Supreme Court has made itself into a political and a cultural institution rather than a legal institution, so that both sides see it in political terms.

You can access the complete transcript at this link (scroll down to the bottom of the page).

Posted at 12:10 PM by Howard Bashman

U.S. Senator Joseph R. Biden Jr. (D-DE) says that he would filibuster D.C. Circuit Judge Janice Rogers Brown if she is nominated to replace Sandra Day O’Connor on the U.S. Supreme Court: Senator Biden appeared on today’s broadcast of the CBS News program “Face The Nation.” Senator Biden originally stated that he would filibuster Fifth Circuit Judge Edith H. Jones, but then guest interviewer Jan Crawford Greenburg of The Chicago Tribune asked Senator Biden about Judge Brown, and Senator Biden said that he had originally misspoken and meant to say that he would filibuster Judge Brown, rather than Judge Jones. Once the transcript of today’s program becomes available, I will link to it.

Posted at 10:48 AM by Howard Bashman

“Court’s Liberal Bloc Stands Firm; Justice Stevens and his faction forge majorities in the biggest cases this term; Losing O’Connor may affect but probably won’t dissolve its sway”: David G. Savage has this article today in The Los Angeles Times.

The LATimes today also contains a news analysis headlined “High Noon for High Court: A polarizing showdown over O’Connor’s seat may alienate a public that prefers the middle” and an article headlined “White House Plans to Consult With 2 Parties; Officials are to ask each side to weigh in, an aide says, as a battle over the high court opening stirs.”

And in commentary, The LATimes today contains an op-ed by Law Professor Cass R. Sunstein entitled “O’Connor’s Balancing Act” and an op-ed by Law Professor Orin S. Kerr entitled “O’Connor’s Replacement Is Likely to Be a Swinger; Some assume Bush will nominate a justice who consistently votes with conservatives.”

Posted at 9:45 AM by Howard Bashman

“Disorder in the Court”: Today in The New York Times, Law Professor Stephen L. Carter has an op-ed that begins, “I keenly remember the excitement at the Supreme Court when President Ronald Reagan announced the nomination of the little-known Sandra Day O’Connor to replace the retiring justice, Potter Stewart, in 1981.”

Posted at 8:38 AM by Howard Bashman

In the July 11, 2005 issue of Newsweek: The magazine’s cover story is a lengthy article by Evan Thomas and Stuart Taylor Jr. headlined “Queen of the Center — The Swing Vote: She’s a cowgirl from sagebrush country, a pioneer who defied the odds; The life and legacy of a moderate justice.”

And a related article is headlined “The Holy War Begins: Bush must choose between the big tent or the revival tent; Inside his Supreme Machine.”

Justice O’Connor’s retirement is also the cover story of Time magazine’s July 11, 2005 issue, but the text of its lead article is not freely available online.

Posted at 8:20 AM by Howard Bashman