Posted 11:20 PM by Howard Bashman

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December 22, 2005

JUDICIAL UMBRAGE SIGNALS NEW LIMIT FOR BUSH'S WAR POWERS

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - First, a judge stands down from a special court that oversees government surveillance after the Bush administration admits it has been tapping phone calls without judicial approval.

The next day, a conservative judge seen as a leading candidate for the Supreme Court starts questioning Bush's legal tactics in the war on terror.

For legal experts, these two exhibitions of judicial pique this week are further indication that the judiciary's deference to executive power in the wake of Sept. 11 is rapidly waning.

"We are basically seeing challenges to the president's asserted authority that, as commander-in-chief, he can do whatever he wants in the war on terror," said Professor Scott L. Silliman, Director of the Center for Law, Ethics & National Security at Duke University law school.

In a rare case of a judge dissenting by giving up his job, U.S. District Judge James Robertson on Tuesday abruptly stepped down from the Foreign Intelligence Surveillance Court.

Robertson, who will still serve as a federal judge in the nation's capital, was upset by the administration's disclosure over the weekend that it had been authorizing spying without court approval, according to the Washington Post.

On Wednesday, a three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals led by Judge J. Michael Luttig rebuked the White House over its handling of Jose Padilla, the suspected "dirty bomber" who has been held for three years as an enemy combatant.

I. Michael Greenberger, a law professor at the University of Maryland who worked on counter-terrorism in the Clinton administration, said both developments "go the president's unilateral use of his war powers."

Luttig, who has previously been a staunch defender of the administration's interpretation of executive power, joined his colleagues in denying a White House request to release Padilla into civilian custody.

Just three months ago, Luttig authored an opinion upholding the administration's right to hold Padilla without trial.

But President Bush's lawyers, apparently fearing that the Supreme Court would rule against them, decided last month to file criminal charges against Padilla instead and asked the 4th Circuit to rule that the case was moot.

It's not the first time the Bush administration has switched positions at the 11th hour in a case pitting executive power against judicial authority.

In a Texas death penalty case, a Mexican citizen facing execution claimed on appeal that he should have been notified that he could seek assistance from consular officials.

The World Court backed his claim in a 2004 decision, ruling that the United States had violated his constitutional rights.

The Bush administration, which usually pays little attention to foreign rulings, ordered that Texas comply with the ruling a month before arguments were held in front of the U.S. Supreme Court.

The court subsequently dismissed the case in May of this year after hearing the arguments. Medellin v. Dretke, 125 S. Ct. 2088.

In Wednesday's ruling, Luttig wrote that the administration's desire to avoid Supreme Court review was not a legitimate reason for the 4th Circuit to declare Padilla's case moot.

Luttig voiced concern at the administration's willingness to change at will an approach he and his fellow judges had endorsed.

Luttig wrote that the government's actions could leave the impression that the principle upon which the president relied "can, in the end, yield to expediency with little or no cost to its conduct of the war against terror."

He noted that this was an outcome "we would have thought the government ... could ill afford to leave extant."

Luttig concluded that the case is of "sufficient national importance" to warrant review by the Supreme Court.

The Supreme Court could still rule that the case is moot, but Luttig made clear that he would prefer the high court justices to make that determination.

Several legal experts expressed surprise at Luttig's decision, bearing in mind his previous support for the administration.

"It's a striking opinion," said Silliman. "It's clear that a judge who is traditionally supportive of the administration, and a conservative, has spoken out in frustration and anger at what he perceives as an end-run."

Michael J. Gerhardt, a law professor at University of North Carolina Chapel Hill, described the decision as "interesting and provocative," particularly coming from a court that has been so helpful to the administration in the past.

Luttig's opinion, taken with Robertson's decision, also indicates that exasperation with the Bush White House is coming from judges of all political persuasions.

Robertson was appointed by President Clinton and has a background in civil rights as a leading member of the Lawyers' Committee for Civil Rights Under Law.

Luttig, by contrast, is a poster child for conservative activists and sits on what is generally regarded as the country's most conservative court.

The White House has usually been able to rely upon two courts in war on terror cases: the 4th Circuit and the D.C. Circuit.

The 4th Circuit repeatedly has endorsed the White House's right to detain enemy combatants without trial, with Luttig playing a central role.

In Hamdi v. Rumsfeld, 296 F.3d 278, a 2002 case, the court held, for example, that the administration could detain a U.S citizen without trial.

In July, the D.C. Circuit ruled in favor of the government that the use of military commissions at Guantanamo Bay was constitutional. Hamdan v. Rumsfeld, 415 F.3d 33.

The case is now pending before the Supreme Court, which has consistently questioned the Bush administration's approach.

In 2004, the high court held that Guantanamo Bay detainees are subject to the jurisdiction of the United States and can therefore file habeas corpus claims. Rasul v. Bush, 124 S. Ct. 2686.

When it reviewed the Hamdi case in 2004, the court held that the appellant, Yaser Esam Hamdi, could be detained, but that he also had the right to seek review of his detention.

The administration responded by releasing Hamdi on the condition that he move to Saudi Arabia.

Gerhardt said that since the Sept. 11 attacks, the administration has dedicated itself to "protecting a very aggressive, broad reading of executive power."

With members of Congress joining judges in questioning the president's approach, Gerhardt said, the administration now faces an "uphill struggle," both legally and politically.

"It's a challenge for President Bush," he said.

Posted 2:30 PM by Howard Bashman

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December 02, 2005

FORTHRIGHT ALITO GIVES LIBERALS MORE TO PROTEST
Candor Seeds Senate With More Material Than Demure Roberts

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - There's one big difference between Supreme Court nominee Samuel A. Alito Jr. and new Chief Justice John G. Roberts Jr.

Although both are dyed-in-the-wool conservatives, only one of them seems willing to admit it.

That would be Alito.

When Roberts was nominated back in July, he went out of his way to downplay any affiliation to the conservative lawyers' group the Federalist Society.

Alito trumpets his membership in the group for more than two decades.

Difference in Manner
The contrast comes into even sharper relief in the two men's written responses to questions from the Senate Judiciary Committee.

Alito returned his 61-page questionnaire and lengthy appendices earlier this week.

What Roberts and Alito share is a stellar academic background and a strong relationship with the Reagan administration, where both spent formative years as lawyers.

"Their background and career trajectory is very similar in almost every way," said Sean Rushton, executive director of the Committee for Justice, a conservative group.

Senate Grilling Likely
Where they differ is Alito's apparent willingness to show his political leanings, which will probably subject him to more intense questioning from liberal senators at the confirmation hearing in January.

"That will cause some problems for him," said John A. Maltese, a political science professor from the University of Georgia. "There will be some tough questions."

Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst, agreed that Alito will have a harder time than Roberts.

"I think he is more vulnerable than Roberts was because of the paper trail that can be interpreted as being out of the mainstream," he said.

Alito states in the questionnaire that he has been a member of the Federalist Society since 1983.

He wrote two articles for society publications, one in 2001 on "presidential oversight and the administrative state" and one in 1998 on the role of the lawyer in the criminal justice system.

Alito also gave 11 speeches at events sponsored or held by the group at various locations on the East Coast.

He also reveals in the questionnaire that he spoke at events sponsored by the Heritage Foundation, a conservative think tank in Washington.

In the 1980s, Alito belonged to Concerned Alumni of Princeton, which expressed open hostility to affirmative action admission policies at the Ivy League college favoring women and minorities over children of alumni. His association with that group already has drawn fire from the left.

Roberts, in contrast, took pains on his questionnaire to distance himself from the Federalist Society.

He wrote that he had "no recollection" of serving on the group's Washington lawyers steering committee, despite media reports to the contrary that referenced Roberts' name in the society's internal records.

Roberts did say, however, that he had "participated in society events" over the years, including a lunch meeting in Washington in 2003 at which he spoke.

But most of the other speaking engagements Roberts mentioned were strictly nonpartisan, ranging from bar associations to law schools.

The portrait Roberts painted in his questionnaire was of a consummate "gun for hire", a theme he returned to during the confirmation hearing, when he was asked about his work on behalf of gay rights proponents in a 1996 case.

Roberts said at the hearing that he would have represented the defendants if they had asked him first.

Both men were asked in the questionnaire to explain their views on judicial activism.

Again, Roberts seemed reluctant to rock the boat.

He wrote that the "exercise of our judicial role in our constitutional system requires a degree of institutional modesty and humility," and stressed the need for self-restraint.

Alito largely agrees with that assessment in his questionnaire, noting that the "Constitution sets forth a limited role for the judicial branch." But he also makes clear that judges are sometimes required to push against those limitations.

"When a constitutional or statutory violation has been proven, a court should not hesitate to impose a strong and lawful remedy if that is what is needed to provide full redress," he wrote.

Alito added that "some of the finest chapters in the history of the federal courts were written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations."

He does stress, though, that judges should refrain from making decisions that properly belong with politicians.

Rushton, whose organization was formed to support President Bush's nominees, said both men's judicial philosophies are essentially the same.

"John Roberts has a certain style that is unique to him and Alito will have his own style," he added.

Although conservative activists will no doubt be heartened by Alito's willingness to wear his politics on his sleeve, it may make his confirmation more tempestuous than Roberts'.

When Roberts appeared before the Senate Judiciary Committee in September, he presented himself as shying away from political controversy throughout his career, despite spending periods working for both the Reagan and the first Bush administrations.

Throughout the summer, activists and journalists dissected memos and other documents he wrote, but no smoking gun emerged.

In contrast, by the time Alito's hearing begins on January 9, there could be a battalion of smoking guns.

Just this week, a memo that Alito wrote in 1985 attracted more attention than anything Roberts authored.

Written while Alito was at the U.S. Solicitor General's Office, the memo outlines his suggestions on how the Reagan administration should have attacked Roe v. Wade.

The burden will be on Alito to prove to moderate senators that he is not an extremist.

Alito may be in for a tougher grilling than Roberts because his writings and affiliations are bolder, more akin to Robert H. Bork, the Republican nominee from 1987 whose nomination failed, Goldman argued.

"Alito may not be able to finesse his positions the way Roberts did because Alito, like Bork earlier, came out strong and hard stating his own views and at an older age than Roberts did in his memos," Goldman said.

Their differences notwithstanding, Roberts and Alito look more alike when their questionnaires are compared with the one submitted by doomed nominee Harriet E. Miers.

While Alito and Roberts both listed dozens of cases they argued or ruled upon, Miers had much less of a track record to disclose, largely because she had not been a judge or spent much time in court.

This only added to the criticism she received at the hands of conservatives.

Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, even had to ask Miers to try again with some of her answers after deeming them unacceptable.

Soon after that, she withdrew her nomination.

Unlike Miers, Alito seems more than ready for the fight.

Posted 2:15 PM by Howard Bashman

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December 02, 2005

CONGRESS PUTS HABEAS CORPUS ITSELF ON TRIAL
Would Change Curb Rights or Provide Necessary Reform?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Habeas corpus, the centuries-old last legal resort for prisoners, is now on trial itself.

The ancient legal right of a prisoner to question the reasons for his or her incarceration, commonly known as the 'Great Writ,' is facing tough scrutiny from Congress.

A recent vote in the Senate to curtail the habeas rights of Guantánamo Bay detainees came at the same time senators debated a bill that would place restrictions on the habeas procedure used by convicted criminals, including death-row inmates, to ask courts to reopen their cases.

Convoluted Process
In states with sizable death rows, such as California, some believe the latter proposal would bring much-needed reform to a convoluted appeals process that sometimes can drag on for years as defense attorneys constantly file new claims that have to be reviewed by federal courts.

But others see the pending measures as a double-barreled assault on the American legal system itself and the hundreds of years of English law that spawned it.

"There are people in Congress who have run out of ways to show how tough they are on crime," said Bryan A. Stevenson, executive director of the Equal Justice Initiative in Montgomery, Ala., who represents death-row inmates. "What's so tragically misguided is that we have these review procedures to protect innocent people."

Explanation for Detention
For advocates like Stevenson, the ultimate fear is that evidence of innocence will surface too late to stop an execution.

From the Latin for "you may have the body," habeas corpus has been a central component of American law, and English common law, for centuries. Technically, it is an order issued by a judge that requires both the imprisoned person and the jailer to appear before the court to establish why the prisoner needs to be detained.

Although the British Parliament passed the Habeas Corpus Act in 1679, historians believe the writ dates back even further than the Magna Carta, which was signed into law in 1215.

In criminal cases, convicted defendants typically file habeas petitions to bring new evidence that was not presented at trial, demonstrate that the prosecution relied on false evidence or show that prosecutors withheld favorable evidence.

The filing of petitions in federal courts has increased dramatically in the last 50 years, starting in the Deep South, where black inmates felt they were not getting a fair shake from state courts.

Backers of the proposals in Congress insist they don't want to gut habeas corpus rights but are merely trying to ensure habeas petitions are used appropriately.

They say the Guantánamo detainees should not be accorded the same rights as U.S. citizens because they are foreigners who were captured overseas and are being held under military law.

In criminal cases, the concern is that too many frivolous habeas petitions are clogging the courts and delaying the appeals process, particularly on death row.

The Streamlined Procedures Act, S.1088, would speed up the resolution of habeas corpus cases in federal court by restricting claims that have already been litigated in state court.

Supporters of the bill, led by Sen. John Kyl, R-Ariz., say it would prevent unnecessary delays while preserving an opportunity for prisoners to assert actual innocence if they have the evidence to back up their claims.

Kyl argued at a Senate hearing in July that the right to seek a writ "is not a guarantee of absolutely unrestricted federal review of state convictions."

Former California Attorney General Daniel E. Lungren, who is now a Republican congressman from Sacramento, sponsored the House version of the bill, H.R.3035, which has yet to pass the judiciary committee.

Congress attempted to speed up habeas litigation in 1996 by limiting prisoners to a single petition and giving state courts permission to set strict deadlines for briefing appeals. But there was a catch: The states had to guarantee that they would provide competent defense attorneys.

Nearly a decade later, only Arizona has qualified for the fast-track system provided by the Antiterrorism and Effective Death Penalty Act.

California attempted to qualify for fast-tracking but was blocked from doing so by a federal judge in San Francisco who ruled that the state's system for appointing attorneys to death-row inmates was deficient. It can still take death-row inmates up to five years to get a lawyer appointed by the California Supreme Court.

The Streamlined Procedures Act would get around this problem by bypassing the courts and allowing the federal Department of Justice to give states authority to fast-track their habeas litigation.

The legislation prompted vocal opposition from respected lawyers and judges and prominent organizations like the American Bar Association and the U.S. Judicial Conference.

Sen. Arlen Specter, R-Pa., the chair of the Senate Judiciary Committee, recently introduced an amended version of Kyl's bill, which waters down some of the more controversial provisions and expands opportunities for defendants to request DNA testing to prove innocence.

But at a hearing on Nov. 16, there were still objections.

Opponents said they are particularly concerned that defendants with legitimate claims of actual innocence could be barred from federal court in certain circumstances.

Sen. Patrick J. Leahy, D-Vt., the ranking member on the Judiciary Committee, said at the hearing that even Specter's revised version contained "amazing court stripping" measures that could "stop federal courts from enforcing constitutional rights."

He also claimed there is no data to suggest there is a systemic problem nationwide.

Former U.S. Solicitor General Seth P. Waxman, who served under President Clinton, said the bill will "deny relief ... to people whose fundamental constitutional rights have been violated, some of whom are innocent."

Waxman, now in private practice with Wilmer, Cutler, Pickering, Hale & Dorr in Washington, told senators the Streamlined Procedures Act effectively would shut the federal courthouse door to most prisoners by setting too high a burden of proof.

Lungren and others who support change point to the glacial pace of death penalty litigation in California as a case study in what's wrong with the habeas process.

Only 11 California murderers have been executed since capital punishment was reinstated in 1978 while hundreds of other death-row inmates pursue appeals for 15-to-20 years or even longer.

Critics say part of the problem is that defense attorneys take advantage of the complex procedural framework to fend off execution by filing one habeas petition after another.

Michael D. Rushford, president of the Sacramento-based Criminal Justice Legal Foundation, said another problem is that some U.S. District Court judges take too many liberties with habeas claims.

"Many district judges like to push the envelope, especially in capital cases," he said. "They stretch rights or concoct constitutional reasons to overturn a sentence."

Judiciary Committee member Sen. Dianne Feinstein, D-Calif., conceded during the hearing that a "disproportionate number of delays" in capital litigation before the 9th U.S. Circuit Court of Appeals involve cases from California.

But Feinstein said federal courts may feel they have to give extra scrutiny to habeas claims from California inmates because the state's high court is too overwhelmed to give enough attention to every case. She pointed out that the California Supreme Court often issues so-called "postcard denials," one page rulings that reject petitioners' claims without going into much detail.

The fate of the Streamlined Procedures Act remains uncertain.

At least one provision, aimed at allowing states to speed up the resolution of cases if they provide competent defense attorneys, could end up attached to a bill that would re-authorize the U.S.A. Patriot Act. Other measures contained in the bill could be added to other legislation.

It is also not yet clear whether the Guantánamo Bay proposal will pass Congress. It won Senate approval on Nov. 15 as part of the National Defense Reauthorization Act, but the House has not yet taken up the issue.

Known as the Graham-Levin amendment, after sponsors Sen. Lindsey Graham, R-S.C., and Sen. Carl Levin, D-Mich., the proposal is the first attempt by Congress to codify the rights of enemy combatants.

Following the Sept. 11 terrorist attacks, the Bush administration has maintained that the executive branch should not be hemmed in by either Congress or the courts in how it deals with suspected terrorists captured abroad.

But last year, the U.S. Supreme Court held that detainees held at Guantánamo Bay must be permitted to file habeas claims in federal courts. Rasul v. Bush, 124 S.Ct. 2686. Among its reasons, the court pointed out that the prison facility is in a territory in Cuba over which the United States has total control, that the inmates are from countries not at war with the United States, and that they are being held without trial.

Graham at first wanted to prevent detainees from having any right of appeal, but he amended his bill to allow them limited access to the U.S. Circuit Court of Appeals for the District of Columbia to challenge the procedures used by the U.S. government. Any detainees convicted before a military tribunal would also have one chance to appeal their conviction to the same District of Columbia court and, if necessary, the Supreme Court.

Even with the amendments, the legislation has drawn criticism that it makes the United States look hypocritical to curtail fundamental legal rights at home even while promoting legal reforms in countries like Iraq and Afghanistan.

"I find it interesting we are doing it at the same time the president is abroad telling people in other countries that they have to improve their rule of law," Leahy said at the November hearing.

Rushford, who frequently helps write amicus briefs on behalf of crime victims and prosecutors at the Criminal Justice Legal Foundation, said terrorism suspects held by the military are not entitled to the same habeas protections as prisoners convicted in United States' courts.

"Guantánamo Bay [inmates] and capital murderers are moving through different systems," he said.

But others say there's a common thread running through the Streamlined Procedures Act and the Graham-Levin amendment: They both radically limit jurisdiction of federal courts.

Michael C. Dorf, a law professor at Columbia, said he's troubled by both proposals.

But from his perspective, the right of Guantánamo Bay detainees to challenge their confinement goes to the heart of what the habeas writ always has been intended for.

"The original purpose of habeas corpus was to enable people to challenge detention without trial," Dorf said. "The reason why we think of habeas corpus as the 'Great Writ' is because of its utility in checking tyranny."

Posted 4:15 PM by Howard Bashman

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November 18, 2005

Alito Could Swing Death Decisions to the Right

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - After Ronald Rompilla was sentenced to death for the 1988 murder of a Pennsylvania bar owner who had been stabbed repeatedly and set on fire, he argued that his lawyers failed to investigate and present evidence about his troubled childhood that could have persuaded a jury to spare his life.

A federal judge in Philadelphia agreed and overturned the death sentence, but the 3rd U.S. Circuit Court of Appeals reinstated it in an opinion by Samuel A. Alito Jr. which concluded that Rompilla's representation did not fall below constitutionally mandated standards.

The U.S. Supreme Court saw it differently, with Justice Sandra Day O'Connor casting the deciding vote in a 5-4 ruling for Rompilla. Rompilla v. Beard, 125 S.Ct. 2456 (2005).

While court watchers across the political spectrum are guessing how Alito will tilt the high court's jurisprudence if he is confirmed as O'Connor's replacement, the Rompilla case provides a clear example of how he might make a difference.

To some observers on the left and right, the case highlights how Alito's addition to the high court could take the court's death-penalty decisions in a more conservative direction.

Ohio State University law professor Douglas Berman said Alito, if confirmed, "is certainly going to change the equation because O'Connor was moving toward a more uncomfortable position on the death penalty."

"It seems though there's a pretty sizable group of justices who have of late shown a heightened degree of concern with the application of the death penalty," Berman said.

Alito, he said, probably is not going to be in that camp.

Duke University law professor Erwin Chemerinsky said Rompilla sent a signal that the Supreme Court was concerned about ineffective assistance of counsel in more than just the most blatant or egregious cases.

Rompilla's lawyers, Chemerinsky said, were not grossly deficient. Instead, he said, the lawyers just didn't do everything they were supposed to do.

"Alito's opinion in Rompilla doesn't show the same sensitivity to problems in representation," Chemerinsky said. "It's an indication that these kinds of cases would come out the other way."

That's what conservative observers are hoping.

Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento said the Supreme Court's decision to reverse Alito in Rompilla was "troubling."

The court, Scheidegger said, did not observe the limits spelled out in the Antiterrorism and Effective Death Penalty Act of 1996, which prevents federal judges from granting an inmate habeas relief except in cases where state courts act unreasonably.

"We need the Supreme Court to enforce that statute on reluctant courts of appeals," he said.

Scheidegger also said Alito likely would not give as much weight as O'Connor to a defendant's background and mental or emotional problems as factors for juries to consider when weighing a death sentence.

O'Connor, he said, "has been fairly consistent in pushing the envelope" for expanding the scope and impact of such evidence.

Among other conservatives who have voiced support for Alito is Kansas Attorney General Phil Kline, who raised some eyebrows in October when he issued a statement urging the Senate to confirm President Bush's latest nominee.

Kline's endorsement came just a month before he is scheduled to appear before the Supreme Court to defend the constitutionality of his state's death-penalty law in Kansas v. Marsh, 04-1170.

In Rompilla, Alito wrote for a divided panel that the defendant appeared to be "arguing that his trial counsel were constitutionally derelict in failing to take all the steps that might have been pursued by the most resourceful defense attorneys with bountiful investigative support."

"But while we may hope for the day when every criminal defendant receives that level of representation, that is more than the Sixth Amendment demands," Alito said.

The dissenting judge on the panel said Alito's ruling was inexplicable.

The high court's Rompilla majority, comprising the court's four more-liberal members and O'Connor, said Rompilla's lawyers were clearly deficient for not examining his prior-conviction file, which would have turned up "a range of mitigating leads" on Rompilla's troubled childhood and mental health problems.

That evidence, the court said, could have tilted the scales against death.

In dissent, the court's conservatives blasted the ruling, saying it was unreasonable under any standard of review and was particularly wrong under the deferential standard the court was bound to apply.

Alito, they said, had it right.

In addition to Rompilla, Alito has taken a conservative tack in other 3rd Circuit death-penalty cases.

In 2001, Alito dissented from the 3rd Circuit's decision to grant a new trial to a black death-row inmate who argued that the prosecution had used its peremptory challenges in a discriminatory manner to strike all prospective black jurors. Riley v. Taylor, 277 F.3d 261.

The court, which heard the case en banc, also ruled that the prosecutor made improper remarks at the defendant's penalty hearing. Alito dissented from that holding as well.

The appeals court was particularly split on the jury-selection question.

A six-judge majority said the prosecution offered weak explanations of why it kept a white juror but dismissed a similarly situated black juror. The judges also said they were persuaded by statistical evidence from other capital cases suggesting that county prosecutors had acted in a discriminatory manner.

The majority criticized Alito for giving too much deference to a state-court determination that the prosecution had not acted improperly.

Alito, whose dissent was joined by four other judges, called the case "troubling" but said he saw no grounds for overturning the state court's findings.

Alito criticized the majority's statistical analysis as "simplistic," saying the court "treat[ed] the prospective jurors who were peremptorily challenged as if they had no relevant characteristics other than race, as if they were in effect black and white marbles in a jar from which the lawyers drew."

In 1997, Alito cast a dissent on a three-judge panel that ordered a capital defendant to be retried because of faulty jury instructions. Smith v. Horn, 120 F.3d 400.

The majority said there was a "reasonable likelihood" that the jury convicted the defendant of first-degree murder without finding beyond a reasonable doubt that he acted with a specific intent to kill.

Alito said that the majority's finding of ambiguity in the jury instructions did not justify federal habeas relief. The court's basis for ordering a new trial, he said, was "shocking."

He also criticized the ruling on procedural grounds, questioning whether the defendant had exhausted his remedies in state court.

A criminal defense lawyer who practices in the 3rd Circuit said Alito "is considered one of the most conservative judges, but he's not considered unreachable."

"You do get the sense that he has a very narrow view of the basis for relief," said the lawyer, who asked to remain anonymous.

The lawyer pointed to Carpenter v. Vaughn, 296 F.3d 138 (2002), as one case where a capital defendant was able to satisfy Alito's narrow approach and obtain a favorable ruling.

In that case, Alito ordered defendant James H. Carpenter to be given a new penalty-phase trial or resentenced to life in prison.

Alito said Carpenter's trial counsel provided ineffective assistance because he failed to object to the trial judge's "highly misleading answer" to a jury question about Carpenter's eligibility for parole if jurors favored a life-sentence over the death penalty.

In a case earlier this year, Alito wrote a panel opinion overturning the death sentence of a Pennsylvania man convicted of killing a jewelry story owner, again over the issue of jury instructions and parole eligibility: The trial court, Alito said, should have told jurors that a life sentence would indeed keep defendant Antuan Bronshtein behind bars for life. Bronshtein v. Horn, 404 F.3d 700.

Alito and his panel colleagues rejected the state's argument that Bronshtein's claims were procedurally defective. They did, however, reverse a district court's judgment that Bronshtein was entitled to a new trial.

The state is appealing the procedural portion of Alito's ruling to the Supreme Court.

"His decisions don't appear to take an ideological stand on the death penalty," the criminal defense lawyer said. "His opinions are clearly conservative but not ideologically so."

Despite Alito's conservative approach, a key anti-death penalty Democrat on the Senate Judiciary Committee had kind words for Alito after meeting with him last week.

Sen. Russ Feingold, D-Wis., told the Milwaukee Journal Sentinel that he found Alito to be a judge "with some anxiety about the death penalty."

"I found a person who actually thought about it deeply, who was troubled by innocent people being sentenced to death and who gave particular concern to how those cases were handled as a Court of Appeals judge," Feingold said.

Feingold said Alito expressed more concern about the application of the death penalty than Chief Justice John G. Roberts Jr., who met with Feingold earlier this year when he was going through the confirmation process.

Alito's concerns would give him something in common with his predecessor O'Connor.

"If statistics are any indication," O'Connor said in a 2001 speech, "the system may well be allowing some innocent defendants to be executed."

Posted 4:00 PM by Howard Bashman

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November 21, 2005

FEINSTEIN CRAFTS PLAN TO SCUTTLE 9TH CIRCUIT SPLIT
Judiciary Senators Miffed by House's Legislative Tactic

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Look for Sen. Dianne Feinstein, D-Calif., to lead opposition to the latest proposal to split the San Francisco-based 9th U.S. Circuit Court of Appeals into two, which passed the Republican-controlled House of Representatives late last week for the second year running.

The two congressional bodies will now have to negotiate because the split proposal included in a House deficit reduction bill is not attached to the budget bill passed by the Senate.

Final resolution is not likely until after Congress' Thanksgiving recess and could drag on until the New Year.

"We have said very clearly that we are opposed to including it in the conference report," Feinstein spokesman Howard Gantman said Friday of the 9th Circuit provision.

This year's proposal is the latest in a series of attempts to split the court, which conservatives have criticized for what they perceive as a liberal bias in some of its decisions.

A bill that passed the House last year on the same subject failed in large part because of Feinstein's opposition.

Feinstein, a member of the Senate Judiciary Committee, already has the support of two influential senators, Sen. Patrick J. Leahy, D-Vt., the ranking minority member on the committee, and its chairman, Sen. Arlen Specter, R-Pa.

Specter and Leahy wrote a letter earlier this month in which they asked Senate leaders not to allow the court to be split without proper committee hearings.

The letter endorses Feinstein's position that the 9th Circuit split is a policy issue, not a budget matter and therefore should not be part of a budget bill.

"The issue is squarely under the jurisdiction of the judiciary committee and any budgetary issues are purely incidental," the two senators wrote.

Tracy Schmaler, a spokeswoman for Leahy, said Friday that Feinstein "has taken the lead" on the issue, adding that she did not know whether Leahy would take a more active role.

The 9th Circuit's chief judge, Mary M. Schroeder, who opposes the measure, said she is hopeful that Specter and Leahy's argument will persuade their fellow senators.

"I think this is really an affront to the judiciary committee," she added, referring to the lack of hearings.

If appeals to Senate leadership fall on deaf ears prior to the budget bill going to conference, Feinstein has pledged to use a parliamentary maneuver to remove the 9th Circuit provision on a technical point.

She would invoke the so-called 'Byrd rule,' which prevents unrelated issues from being included in budget bills.

If the Senate's parliamentarian agrees with her petition, Republican leaders would need 60 votes in the Senate to overrule the decision, a tall order considering they have a 55-45 voting majority.

"We would seek a ruling from the parliamentarian," said Gantman, Feinstein's spokesman. "We hope it [the 9th Circuit provision] stays out."

The Byrd rule has been invoked 55 times since it was first used in 1985 and has been successful on 42 occasions, according to a 2004 Congressional Research Service survey.

But supporters of the bill, including the co-sponsor of the House legislation, Rep. Mike Simpson, R-Idaho, maintain that dividing the court can be interpreted as a budget-cutting measure because of the unwieldy size and caseload of the current court.

"Hopefully it will survive a Byrd point of order," Lindsay Slater, Simpson's chief of staff, said in an interview Friday. "It's a good piece of legislation."

He added that he does not expect the conference discussions to begin until after Congress' Thanksgiving break.

The bill that passed the House would reduce the jurisdiction of the 9th Circuit to California, Hawaii, the Northern Mariana Islands and Guam.

A new 12th Circuit would be comprised of Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.

The modified 9th Circuit would have 19 judges, while the 12th Circuit would have 14.

The current court has 24 judges, not including those on retired status and four vacancies.

In a separate provision of the bill, seven new judgeships would be created for California.

Schroeder described the current proposal as "even sillier" than previous attempts to split the court on the grounds that the new 12th Circuit would be a "string bean" running from Alaska in the north to the Mexican border in the south.

She added that the majority of the judges on the existing court will continue to oppose the measure.

"I'm sure we will have many discussions over the course of the holiday season," Schroeder said. "This is important to us."

Posted 5:00 PM by Howard Bashman

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November 15, 2005

SPLITTING 9TH CIRCUIT IS COSTLY, CONSERVATIVE PLOY

Forum Column
By Erwin Chemerinsky
The proposal to split the 9th U.S. Circuit Court of Appeals is a politically motivated attempt to make the federal courts of appeals much more conservative. The result would be more cost to the taxpayers, less efficiency in the disposition of cases and partisan judicial gerrymandering of the worst sort.

After years of trying to do this, conservative Republicans have a greater chance of success than ever because of a procedural move of attaching this to a deficit reduction bill passed by the House Budget Committee. If approved by the House in this form, senators will not be able to vote on the proposal by itself and would have to defeat the entire budget bill to prevent the split of the 9th Circuit.

On Thursday, Oct. 27, the House Judiciary Committee approved H.R. 4093, which would split the current 9th Circuit into two: a 9th Circuit comprising just California, Hawaii, Guam and the Northern Marianas Islands, and a new 12th Circuit composed of Arizona, Nevada, Idaho, Montana, Oregon, Washington and Alaska.

A week later, the House Budget Committee approved the measure, too, as part of a deficit reduction bill. As a part of a budget bill it would be much harder for the Senate to block compared with the usual path if the bill came through the House Judiciary Committee. As a part of a budget bill, the Senate could not vote on the provision separately or block it by filibuster. Solid Republican majorities in both the House and the Senate also bolster conservatives' chances of winning a 9th Circuit split-up.

There is no doubt about the political motivation behind the effort to split the 9th Circuit. Conservative Republicans from the Pacific Northwest long have sought to create a separate court of appeals for just those states. The current judges from those states are far more conservative as a group than the appellate judges from California.

Indeed, the new 12th Circuit might well be the most politically conservative federal court of appeals in the country. At the same time, Republicans would create enough new appellate judgeships for the reconstituted 9th Circuit to significantly increase conservative influence there.

Of course, it is true that the 9th Circuit is larger than any other in the country, but that would be true of any circuit that includes California. California is by far the largest state in the country, with one-ninth of the nation's population. It is widely agreed that it would be undesirable to have a circuit that includes just one state. There are benefits in having the perspective of appellate judges from other states. Also, this allows uniform resolution of common problems affecting states, such as the similar border control issues facing California and Arizona. The consequence, though, of grouping California with other states is that this inevitably will be the largest circuit in the nation.

But this has not proven to be a problem. The 9th Circuit has developed efficient procedures for handling cases, including for preventing disagreements among its panels. Any delay in processing cases is easily explained by unfilled vacancies on the court and a shortage of judges relative to the court's caseload.

The split makes no sense from an economic perspective. Dividing the 9th Circuit would require the creation of an additional costly bureaucracy to administer the new circuit, eliminating the economy of scale achieved by having a single administration. There would need to be expenditures for expanded courthouses and administrative buildings. The Administrative Office of the U.S. Courts estimates start-up costs of almost $100 million and annual recurring additional costs of almost $16 million.

Nor does a split make sense in terms of judicial efficiency.

The new 9th Circuit of California and Hawaii would keep 72 percent of the caseload, but have only 60 percent of the judges. The new 9th Circuit would have 536 cases per judge, while the proposed 12th Circuit would have 317 cases per judge. Actually, the inequity would be much greater because there are about 600 death penalty cases from California, vastly more than from any other state. These are enormously time-consuming for judges and now can be divided among all the judges in the 9th Circuit. The burdens would be far more on the reconstituted 9th Circuit.

The judges themselves think that splitting the circuit is a bad idea. Only three of 24 active judges on the 9th Circuit support the breakup. Not surprisingly, all three of these judges are conservatives from northwest states. The state bar associations that have voted on the idea - Arizona, Washington, Montana, and Hawaii - all oppose it.

So why is this happening and why does it have a real chance of passing? Republican senators and representatives from the Pacific Northwest want to keep the liberal appellate judges from California from hearing cases from their states, especially cases involving environmental challenges to business activities such as in the timber industry. Former Gov. and U.S. Sen. Pete Wilson, a Republican who opposes splitting the 9th Circuit, has called it "environmental gerrymandering."

The configuration of the federal court of appeals is the kind of technical detail that rarely engages public attention. But it has an enormous effect on how cases are decided. A federal court of appeals has the last word in more than 99 percent of all cases it decides. Supreme Court review is often not sought and the Supreme Court grants only about 1 percent of the petitions for certiorari filed with it.

Conservatives are trying to split the 9th Circuit to increase the likelihood of conservative decisions. This blatant attempt to control decision-making must be resisted and defeated.

Erwin Chemerinsky is Alston & Bird professor of law and political science, Duke University.

Posted 12:15 PM by Howard Bashman

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November 14, 2005

A SPLIT COULD CREATE A MORE LIBERAL COURT
GOP May Do Better By Focusing on 9th Circuit Appointments

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - With a vote pending in the House of Representatives on a Republican plan to split the 9th U.S. Circuit of Appeals into two, some court watchers say conservatives should be careful what they wish for.

In the rush to split the court, Republicans may create a California-dominated court that is more liberal than the existing one even as they parse out other states into a more conservative 12th Circuit, according to experts familiar with the proposal.

They say that with two nominations to the bench pending and several more vacancies likely in the next few years, the Bush administration's best hope for changing the ideological balance of the court would be to simply appoint more judges.

Dubbed the "Ninth Circus" by some conservatives and the "Nutty Ninth" by others, the 9th Circuit has long been a target of derision for right-leaning activists, who proclaim it the most liberal court in the country.

Realignment Vote Due
This year's attempt to realign the court, in a provision tacked onto a crucial federal budget bill, is the latest in a long line of Republican-led efforts to split the circuit.

Last year, a measure passed the House but foundered in the Senate largely because of the opposition of Sen. Dianne Feinstein, D-Calif.

Robert A. Carp, a political scientist at the University of Houston, said Republicans could just wait until aging Democrat-appointed judges retire if they want to realign the court.

"I wouldn't spend a lot of political capital on doing something Mother Nature will do for you," he said.

Arthur Hellman, a University of Pittsburgh law professor who is an expert on the 9th Circuit, agreed.

"It's certainly true that the easiest way to affect the ideological balance would be for the president to fill the four [existing] vacancies," he said.

Chief Judge Opposed
Ninth Circuit Chief Judge Mary M. Schroeder, like most of the court's members, opposes the split.

"What they are doing is creating a liberal circuit," said Schroeder, a Carter appointee based in Phoenix who would fall in the 12th Circuit. "I don't know why they would want to do that."

Sean Rushton, executive director of the Committee for Justice, a group set up to support President Bush's nominees, declined to comment on the merits of a split. But he stressed the need for more conservatives to be appointed to the court.

"The 9th Circuit has a long history of particularly outrageous left-wing rulings," he said. "Many conservatives feel it would do well to have more conservatives on that court."

The current court has 24 judges, not including those on retired status, and four vacancies.

President Bush has appointed four members of the current court, although only one replaced a Democrat appointee.

Appointing more judges to the court may appear easier than splitting the circuit, but the nomination process has its own political challenges, as Republicans well know.

Former Interior Department lawyer William G. Myers III, one of President Bush's nominees to the 9th Circuit, was deemed too conservative by Democrats and was one of the nominees at the forefront of a Senate battle over judicial confirmations.

Myers' nomination was not one of those covered in the compromise agreement reached by 14 moderate senators from both parties in May in an effort to avoid a Senate battle over filibusters. He has still not been confirmed.

The Department of Justice is conducting background checks on two potential nominees, transactions attorney Milan D. Smith Jr., of Torrance's Smith Crane Robinson & Parker, and Idaho state court Judge N. Randy Smith.

Under the proposal in the House, the new 9th Circuit would have 19 judges, while the newly created 12th Circuit would have 14.

The 9th Circuit would be left with California, Hawaii, the Northern Mariana Islands and Guam.

The new 12th Circuit would include Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.

The 9th Circuit would lose some of its more conservative members if the split goes ahead.

Judge Diarmuid F. O'Scannlain and Judge Andrew J. Kleinfeld, two of the most reliably conservative members of the court, are based in Portland, Ore., and Fairbanks, Alaska, respectively and would therefore be members of the new 12th Circuit.

Judge Richard C. Tallman, based in Seattle, also often votes with the conservative bloc despite being a Clinton appointee.

O'Scannlain is one of the more outspoken supporters of a split - and his stated reason is better organization, not ideological dominance.

He told the Senate Judiciary Committee last month that the existing court is too big, particularly when compared with other circuits.

"I challenge any opponent of reorganization to articulate a reasonable justification for placing one-fifth of our citizens ... into one of 12 regional circuits," he said.

Judge Stephen Reinhardt, regarded as the 9th Circuit's liberal anchor, is based in Los Angeles and would therefore remain in the 9th Circuit, although he is eligible to take senior status at any time.

Carp noted that conservatives in the new 12th Circuit would no doubt be pleased to be liberated from the 9th Circuit, as the split would effectively "isolate the liberals to California and Hawaii."

The wild card is that Congress might add as many seven seats if the court-splitting measure passes. How that would alter the ideological make-up of the court all depends on whom is appointed.

But the way Hellman sees it, if the split doesn't go ahead and President Bush nominates four conservatives to fill the remaining places on the existing 9th Circuit, the end product will be a considerably less liberal court.

If the split does go through, Hellman said he expects that California's two Democratic senators, Feinstein and Barbara Boxer, will have greater leverage over who is appointed to the bench.

This is because home state senators can sometimes influence who the president nominates, although it varies on the individuals involved and the political climate, Carp said.

Feinstein is considered more influential because she sits on the Judiciary Committee.

The other two senators who could potentially influence nominations to the new 9th Circuit would be the two members from Hawaii, Daniel Inouye and Daniel K. Akaka, who are both Democrats.

A House Judiciary Committee report attached to the pending bill argues that a split is needed because simply providing additional judges to reduce the backlog of cases "will exacerbate the unstable development of case law, and contribute to continued delays in the adjudication of cases.

It would also perpetuate "conditions that have led the 9th Circuit to be widely recognized as having both an extraordinary number of decisions that the U.S. Supreme Court must hear on appeal, as well as a high rate of reversals," the report said.

In the year ending June 30, 2005, 15,685 appeals were filed with the 9th Circuit, three times more than the average of the other federal circuits, according to the judiciary committee.

The 9th Circuit also takes 40 percent longer to dispose of an appeal than the average of the other circuits, the report stated.

Schroeder took issue with the committee's reasoning, saying that a series of hearings in both the Senate and House should be held before any proposal is to go forward.

She said a number of other issues have to be taken into account, such as the potential for confusion over border-related issues if California is split from Arizona.

A vote on the House bill, which contains a whole host of budget-cutting measures, was due to take place last Thursday but was delayed because the Republican leadership had difficulty rounding up votes.

If the bill does pass the House this week with the split provision intact, Feinstein has already vowed to lead a fight against it in the Senate.

She has already attracted the support of one senior Republican, the Senate Judiciary Committee chairman Arlen Specter of Pennsylvania.

Specter co-wrote a letter with the ranking member of the committee, Patrick J. Leahy, D-Vt., in which they stressed that a full hearing is needed.

"The issue is squarely under the jurisdiction of the judiciary committee and any budgetary issues are merely incidental," the senators wrote.

While the debate over a potential split continues, the White House is already taking action to fill two of the four current vacancies on the court.

The two candidates currently undergoing background checks both have strong Republican connections.

Milan Smith is a former member of California's Fair Employment and Housing Commission and is the brother of Sen. Gordon Smith, R-Ore., while Randy Smith, an independent now, was once chairman of the Idaho Republican Party.

"My understanding, and my hope, is that when the FBI gets through doing it's work, the White House will nominate me," Milan Smith in a telephone interview when asked if his name is in the hat. "The FBI is doing its thing, the Department of Justice is doing its thing."

The Department of Justice notified him that he was under consideration in September, he added.

Smith declined to comment on possibility of the court splitting, but he claimed it would not have any effect on the need for more judges on the 9th Circuit.

"Whether or not the court is split, it desperately needs judges," he said.

Randy Smith, reached at his chambers in Pocatello, Idaho, declined to speculate about his possible nomination, although he conceded that a background check is being carried out.

"If the president's keeping his powder dry then so am I," he said. "I think it's his decision."

Hellman said he does not believe impending nominations would affect the efforts of Republicans in Congress to split the 9th Circuit.

The need for more judges on the court is "something everyone can agree on," he noted.

Howard Gantman, a spokesman for Feinstein, the most vocal opponent of a 9th Circuit split, said her office does not normally comment on prospective nominees.

"They sometimes contact us, they sometimes don't," he said of the White House's approach to judicial nominations.

A spokesman for Boxer also declined to comment on the prospective nominees, although he confirmed that the senator will join Feinstein in opposing a split of the circuit.

Posted 12:30 PM by Howard Bashman

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November 07, 2005

COURT NOMINEE IS WELL-VERSED ON GUIDELINES
Alito Could Shape the Way Justices Approach Sentencing Reform

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - If Samuel A. Alito Jr. is confirmed as the next Supreme Court justice, he could play a major role in shaping the court's approach to federal sentencing reform, according to lawyers working in that hotly disputed area of law.

Alito brings considerable expertise to the issue thanks to his 15 years as a federal appeals judge often dealing with sentencing issues and several years as a federal prosecutor including when the federal sentencing guidelines were introduced in 1987.

But for those who follow developments in sentencing policy, what is most interesting to them is Alito's membership in a distinguished bipartisan panel formed in 2004 to address the questions raised by the Supreme Court's landmark decision in Blakely v. Washington. 124 S.Ct. 2531.

'Rich History'
"He is more informed about federal sentencing dynamics than anyone on the court," said sentencing law expert Douglas Berman, a professor at the Moritz College of Law at Ohio State University. "Alito has a rich history here."

The court held in Blakely that the sentencing system in Washington state violated the Sixth Amendment because judges were able to increase the sentence above the range laid out in guidelines without a jury's finding all the elements beyond reasonable doubt.

The bipartisan panel was established by a Washington-based think tank, Constitution Project, and is co-chaired by Edwin Meese III, who was attorney general under President Reagan, and Philip Heymann, who was deputy attorney general under President Clinton.

Implementation Problems
Those familiar with Alito's role in that group, known as the Sentencing Initiative, say he has approached sentencing issues with an open mind. While he appears to support of some form of guidelines, he concedes that there were problems with the way they were implemented, they say.

Alito also seems wary of judges having too much discretion.

"He is a fan of guidelines," Berman said. "He believes, generally speaking, they are successful."

Alito did, though, sign off on a blueprint for reform called "Principles for the Design and Reform of Sentencing System," in which the existing guidelines are criticized.

"The entire group was at a consensus that the former guidelines system was too rigid and did not allow for judicial discretion," said Katie Monroe, co-director of the initiative.

One of the members of the panel, Frank O. Bowman III, a law professor at the University of Missouri, said he believed Alito had to some extent "kept his cards close to his vest" but stressed that "it's notable he signed off on these principles."

James Felman, a Democrat and criminal defense lawyer from Tampa, Fla., who is also a member of the group, said he thinks Alito would not support giving juries more issues to decide.

"He would be a little bit less inclined to put things to juries than I would be," Felman said about Alito.

But, like Bowman, Felman said the fact that Alito had not dissented from the principles indicated that he realizes there is a problem with the guidelines.

The panel's list of principles, which the group will supplement with a more comprehensive document at a later date, states that "punishment should be proportional to offense severity and individual culpability and circumstances."

The sentencing system should "treat similarly situated defendants similarly while retaining the flexibility to account for relevant differences," the document continues.

As for the existing federal sentencing guidelines, they are "overly complex ... overly rigid ... [and] place excessive emphasis on quantifiable factors such as monetary loss and drug quantity," the list of principles states.

Sentencing law experts are intrigued about where Alito would stand on the issue of how to resolve the questions raised by Blakely and this year's decision in U.S. v. Booker, 125 S.Ct. 738, in which Blakely was upheld and the federal guidelines reduced to being advisory.

Alito in some ways will overshadow all of his colleagues on the bench with his experience of the realities of sentencing, according to Berman.

"I think it ensures he will be better informed," he said of Alito's role with the Constitution Project. "Whether this will change his views or influence his colleagues are incredibly interesting uncertainties."

Berman described Alito as a man who is "not inclined to disrupt the status quo," although he added that, as a result of Blakely and Booker, "there is no status quo."

Felman speculated that if Alito had been on the bench when Booker was decided, he probably would have agreed with the majority when it said that the guidelines should be advisory, rather than with the minority, which stated that all the issues should go to the jury.

Bowman, for one, said he has no reason to believe Alito has any ideological agenda as far as sentencing is concerned.

"I don't see in anything he has ever said in our deliberations that he is some sort of extreme right-winger," he said. "He is conservative, an ex-prosecutor, ... and I think he is pretty deferential to the legislature."

Bowman, therefore, believes that, as a justice, Alito would defer to Congress if it seeks to reform the sentencing guidelines itself.

He added that he did not think Alito was supportive of hefty mandatory minimum sentences, something some judges fear Congress will impose.

The biggest issue before the lower courts now is how to interpret Booker and - most important - how to stick to the "reasonableness" standard that appellate judges are required to use as set out by that case.

An insight into Alito's views on the post-Booker world comes from the transcript of a panel discussion he took part in with the Constitution Project on March 9.

His comments indicate concern about what could happen if judges depart too far from the guidelines, although he also concedes that the appeals courts could resolve discrepancies to some extent.

Alito began his comments during the discussion by praising the way lower-court judges had approached the issue, saying that the sentencing models that had emerged were "all reasonable," ranging from those judges who stuck closely to the sentencing guidelines to others who merely used them in conjunction with other factors.

"I think it's conceivable that ... the whole system could go off in either of those directions," Alito said.

He then added that he doubted there would be any unanimity from the circuit courts, meaning that judges "will have to get guidance from the Supreme Court about exactly what they mean by reasonableness."

Alito did not appear at all dismissive of a case-by-case approach to assessing reasonableness, although he indicated that there could be a lack of consistency both between judges and circuits.

One area where Alito suggested there could be a problem is if the Supreme Court were to adopt a standard that merely requires judges to pay lip service to the 1984 Sentencing Reform Act, the precursor to the guidelines.

He said most judges would be eminently capable of justifying how they reached their decisions and the end result would be large sentencing disparities.

"I am skeptical that enough sentencing disparity can be wrung out of the system simply by requiring judges to justify what they did by reference to the goals of sentencing," he said.

The Supreme Court is certain to be addressing Blakely-related issues in the coming years, and, in fact, it recently accepted another case from Washington state, Recuenco v. Washington. That means Alito and new Chief Justice John G. Roberts Jr. could change the court's direction to some extent, according to the sentencing law experts.

Both Blakely and Booker were 5-4 decisions, although in the key decision in Booker to adopt the guidelines as advisory, it was Justice Ruth Bader Ginsburg and not the departing Justice Sandra Day O'Connor who was the swing vote.

All five justices who were in the majority in Blakely are still on the bench, so that dynamic will not change, Berman noted, but the cases that are sure to follow will, nevertheless, be shaped in part by the new arrivals on the bench.

"All of these decisions are close enough [that] any change in personnel could change them," he said.

Posted 12:33 PM by Howard Bashman

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November 03, 2005

SPOTLIGHT ON CONGRESSIONAL AUTHORITY
Senators Prepare to Pepper Alito With Questions on High Court's Disrespect

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When now-Chief Justice John G. Roberts Jr. faced the Senate Judiciary Committee in September, he was peppered with questions about his views of Congress' power under the Commerce Clause.

Now the man nominated to join Roberts on the bench, Samuel A. Alito Jr., is set to face a similar interrogation on the same topic, in large part due to several of the controversial opinions he has written during his 15 years on the 3rd U.S. Circuit Court of Appeals.

Sen. Arlen Specter, R-Pa., the chairman of the Judiciary Committee, is one of several senators piqued at what he has frequently described as the Supreme Court's lack of respect for Congress' fact-finding capabilities.

Some of Alito's cases deal with highly charged subjects, including one on gun control and another on the constitutionality of the Family and Medical Leave Act.

The way Alito addressed these issues indicates to some that he is an activist judge who needlessly challenges congressional authority.

But to others, it suggests he is a practitioner of judicial restraint who merely followed the precedents passed down by the Rehnquist Supreme Court in the 1990s.

"The truth be told, he is a judicial activist," claimed Frank Askin, a civil rights lawyer and professor at Rutgers Law School, who is familiar with Alito's jurisprudence.

He cited Alito's dissent in U.S. v. Rybar, 103 F.3d 273, the 1996 case in which a firearms dealer appealed his conviction for possession of a machine gun.

The defendant, Raymond Rybar Jr. argued that Congress had exceeded its powers under the Commerce Clause in passing the law under which he was convicted, United States Code Section 922(o).

A three-judge panel of the 3rd Circuit rejected the appeal, but Alito dissented, writing that the Supreme Court's decision in U.S. v. Lopez, 514 U.S. 549, a year earlier, in which the federal law banning firearms in school zones was overturned, was now the established precedent.

"Was United States v. Lopez a constitutional freak?" Alito wrote. "Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?"

Askin, who stopped filing civil rights claims in federal court because, he says, the 3rd Circuit became too right-wing for it to be worthwhile, said the Rybar dissent sums up Alito's philosophy.

"He does not respect legislative determinations," he said. "He is quick to overrule congressional statutes."

But Rybar's lawyer, James H. Jeffries III of Greensboro, S.C., disagreed, saying in a phone interview that he believed Alito was simply performing his role as an appeals court judge by following what he believed was a precedent set by Lopez.

Describing the Commerce Clause as a "spongy area" of the Constitution, Jeffries said Alito was no different from the "generations of judges" who have tackled the same area of the law.

Alito's adherence to Lopez is not surprising, either, according to Jeffries.

"Alito says, 'Where's the commerce?'" he said. "This case is indistinguishable from Lopez."

Jeffries noted that Alito is one of 20 appellate judges who reached similar positions in various cases on the same issue, although none were in the majority.

He also stressed that he believes the subject matter of the case was irrelevant, saying Alito would have reached the same decision if it was about any other commodity.

"The Commerce Clause is what the case was about, not machine guns," he said.

Another case that draws attention to Alito's position on congressional power is Chittister v. Department of Community and Economic Development, 226 F.3d 223, a case from Pennsylvania concerning whether state employees were covered by the family leave act.

That case focused on Congress' power under the 14th Amendment to abrogate states' immunity from lawsuits as granted by the 11th Amendment, another issue that Specter and some of his colleagues on the Judiciary Committee questioned Roberts about.

Both before and after Roberts' hearing, Specter ridiculed the Supreme Court's "congruence and proportionality" standard of measuring Congress' authority under the 14th Amendment, as laid out in City of Boerne v. Flores, 521 U.S. 507, in 1997.

In Chittister, Alito wrote the opinion on behalf of a three-judge panel holding that provisions of the Family and Medical Leave Act "do not represent a valid exercise of Congress' power to enforce the 14th Amendment and the FMLA does not abrogate 11th Amendment immunity."

Alito applied the "congruence and proportionality" test in reaching his decision, noting that he and his colleagues believe that "Congress did not validly abrogate the states' 11th Amendment immunity when it enacted these provisions."

Reached at his law office in Harrisburg, Pa., Andrew J. Ostrowski, who represented plaintiff David D. Chittister, described Alito's ruling as "an overly restrictive view of federal power."

As far as he is concerned, "Congress made it clear that sovereignty was abrogated" in the Family and Medical Leave Act, Ostrowski said.

Although reluctant to criticize on Alito's ability as a judge, Ostrowski said the Supreme Court nominee seemed "overly eager to take what is the conservative judicial trend on 11th Amendment cases" when deciding the case.

"He went out of his way," he added.

Ostrowsky also noted that when the Supreme Court ruled on the same issue in the 2003 case Nevada v. Hibbs, 538 U.S. 721, it was Chief Justice William H. Rehnquist who wrote the opinion upholding the constitutionality of the act.

"The fact that the Supreme Court decided in our favor showed that [Alito's] reasoning and analysis was flawed," he said.

But, as with Rybar, others disagree, stressing again that Alito was trying to follow the Supreme Court precedent, which in this case was Boerne.

John G. Knorr III, the chief deputy attorney general in Pennsylvania who argued the case for the state, stressed, for example, that the two other judges on the panel, both Democrat appointees, joined Alito's opinion.

"[Alito] is following the statutes and following the Supreme Court precedents as best he can," Knorr said. "I don't see him as a lower-court judge striking out on his own."

Although the forthcoming confirmation hearing is certain to include plenty of questions on headline issues such as Alito's views on abortion, the relationship of Congress and the courts is sure to feature again, said William P. Marshall, deputy White House counsel under President Clinton and now a law professor at the University of North Carolina.

"If it was of interest to Specter in Roberts' hearing, it should be of even greater interest here," Marshall said, referring to the Rybar and Chittister decisions.

Specter himself made it clear soon after Roberts was nominated that congressional power was a subject he wished to pursue with some vigor.

He sent Roberts two letters before the confirmation hearing in which he outlined the types of questions he intended to ask.

Specter wrote in one of those letters that members of Congress "are irate about the Court's denigrating and, really, disrespectful statements about Congress' competence," and discussed in some detail Lopez and other cases.

A spokesman for Specter declined to comment Wednesday on whether a similar letter would be sent to Alito, although he noted that one was sent to Harriet E. Miers before she withdrew her name from consideration.

The spokesman added that Specter remains interested in nominees' views on congressional authority.

Another senator who questioned Roberts on congressional authority was Charles E. Schumer, D-New York.

His spokesman said anything Schumer asked of Roberts and Miers was "fair game" this time around.

Clearly, the "hapless toad" has not been forgotten.

Posted 3:30 PM by Howard Bashman

Plan to Split Ninth Slips into Bill

Justin Scheck
The Recorder
http://www.callaw.com
11-02-2005


Their proposal to split the Ninth Circuit U.S. Court of Appeals stalled in the U.S. Senate last year. So House Republicans have taken a new approach this year: attach a split proposal to a provision for new judgeships and tuck it into a $35 billion spending-cut bill.

While the House voted last year to split the Ninth Circuit, the Senate blocked a similar bill, with even some Republicans voting against it. So the latest split proposal is structured to sidestep debate in the Senate Judiciary Committee and discussion on the floor, reaching the Senate only in the budget conference committee.

And there's an added bonus, said Jeff Lungren, a spokesman for House Judiciary Committee Chairman James Sensenbrenner, a Wisconsin Republican: "Protections on the Senate side; I don't believe it's subject to filibuster."

With the Senate seen as the key stumbling block to splitting the circuit -- historically a cause championed by conservatives worried that California tilted the nine-state court too far to the left -- the latest move is seen as a headlong charge toward breaking up the court. The provision would break Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona away from the Ninth.

"It's a very, very aggressive tactic," said Arthur Hellman, a professor at the University of Pittsburgh School of Law and an expert on the Ninth Circuit. "In my mind, it's a very significant move, and has a greater chance of success than any of the similar moves in recent years."

The reconciliation bill is a relatively rare tool, and has not been used for budget cuts since 1997. Split opponents hope that a rule allowing senators to strike provisions not directly related to spending can get the split proposal dropped. But Lungren said it's not yet clear whether that rule applies.

Hellman said that by tying the circuit split to dozens of new federal judgeships as well as the spending cuts, the measure could get through without the Senate consideration it deserves.

"It's a very bad way of legislating a change to the judicial code," Hellman said.

Chief Judge Mary Schroeder agreed. "It's just treating the courts with utter disrespect, and we have to enforce the laws," she said. "I've never heard of an attempt to bypass an entire body, a house of Congress."

While the tactic is new, there have been plenty of moves to split the Ninth Circuit in recent decades, though only three of the court's 28 active judges want the division.

Just last week, the Senate Judiciary Committee heard spirited testimony from judges on its own split proposal. One of those judges, Diarmuid O'Scannlain, supports the split because he sees the circuit as simply being too large to function properly.

And while O'Scannlain wouldn’t comment on the legislative tactics used to push the measure, he praised the House split proposal on Tuesday.

"As far as the merits of the bill are concerned, they’re absolutely solid," he said. "The beauty of this bill is it takes care of California's needs for a long time with seven new judgeships."

But, as the Senate hearings made clear last week, O'Scannlain is in the minority. On Oct. 21, Judge Carlos Bea -- a George W. Bush appointee -- wrote a letter to senators on behalf of three other recent appointees urging them not to split the court.

"It is all too easy to look at the Ninth Circuit's size and caseload from the outside and summarily conclude changes are needed. But take it from some recent arrivals who are on the inside," he wrote, "its administrative efficiency is second to none."

Sensenbrenner disagrees with that, Lungren said, and would have attached the measure to the spending cuts bill earlier had Hurricane Katrina not intervened.

Scott Gerber, a spokesman for Sen. Dianne Feinstein -- an outspoken opponent of splitting the circuit -- said the California Democrat plans to write a letter to representatives objecting to the tactic.

"It's a very bad way of legislating something that's important," Gerber said.

Posted 11:00 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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November 01, 2005

ALITO NOMINATION POLARIZES PARTIES
Appellate Lawyers Describe Modest Jurist, Not Idealogue

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - U.S. Supreme Court nominee Samuel A. Alito Jr. may be a conservative with a strict-constructionist judicial philosophy, but he is also a modest jurist willing to listen to all sides of a dispute, according to attorneys who know him and have argued cases before him.

Appellate lawyers active before the 3rd U.S. Circuit Court of Appeals, where Alito has been a judge for 15 years, said Monday, just hours after he was nominated to the Supreme Court by President Bush, that Democrats should give him a chance at the forthcoming confirmation hearing.

They stressed that he is not the conservative ideologue many liberals fear him to be.

The immediate response from Democrats and liberal interest groups, however, was overwhelmingly negative Monday, increasing the chances of a filibuster attempt that could lead to a partisan showdown in the Senate.

Liberal groups called for senators to oppose Alito's confirmation, citing several of his decisions, including his vote in favor of a Pennsylvania law that required women to notify their spouses before having an abortion.

That case, Planned Parenthood v. Casey, went before the Supreme Court in 1992, where Justice Sandra Day O'Connor - whom Alito would replace - played a major role in shaping a reaffirmation of Roe v. Wade.

Before Democrats and their liberal allies take drastic action against the nomination, attorneys like Alan L. Zegas, a criminal defense lawyer from Chatham, N.J., who has argued a dozen cases before Alito, believe they should take a careful look at the nominee's record.

Speaking as a Democrat and former president of the New Jersey Association of Criminal Defense Lawyers, Zegas noted that, although Alito is clearly a conservative, his beliefs do not infringe on his decision making.

"He is eminently qualified for the bench," Zegas said. "I do have ideological differences with him, but I don't think he is driven by ideology."

Zegas himself has won some cases in which Alito participated in the ruling.

Asked to recall a case in which Alito's judicial philosophy was shown most clearly, he picked a 1994 case he lost, Pemberthy v. Beyer, in which Alito wrote the opinion.

Zegas' client had filed a habeas claim challenging the prosecution's use of peremptory challenges.

The prosecutor had struck jurors who were Spanish-speaking on the basis that evidence included a Spanish-language tape recording and he was concerned that a Spanish speaker could interpret the recording differently from the official court translator's version.

Zegas said that, even though the court rejected his equal-protection argument, Alito's opinion - a narrow ruling that the federal court should have shown deference to the fact-finding of a lower court - showed he had read the law closely before reaching his decision.

"His opinion reflected an honest belief in the principles he was applying," Zegas added. "I disagreed strongly with the result but respected the way he went about making his decision."

Prominent Philadelphia lawyer Howard J. Bashman, a close observer of the 3rd Circuit, agreed with Zegas' assessment of Alito.

Bashman said that, when the nominee's various opinions are examined in the coming weeks, both conservatives and liberals will find decisions of which they approve.

"There's something for everyone," Bashman said.

Alito is thought to have written 300 opinions and had a role in deciding 3,750 cases during his time on the court.

Bashman cited a case that went to the Supreme Court in 2003, Barnhart v. Thomas, as one that shows how Alito judges each case on its merits.

Alito wrote the 3rd Circuit's opinion for a 7-3 en banc court that held in favor of a former elevator operator who had been denied Social Security benefits.

The plaintiff argued that she should be eligible for the benefits because she could no longer obtain a job as an elevator operator because the job no longer exists.

Alito and the majority of his colleagues agreed, but the Supreme Court did not.

Ironically, Justice Antonin Scalia, with whom Alito is often compared, wrote the opinion in which the court unanimously rejected the claim.

Bashman noted that although Alito, as a former U.S. attorney, is often pro-prosecution in criminal cases, his vote in civil cases "tends to be less predictable."

Another lawyer familiar with Alito's jurisprudence is longtime friend Mark I. Levy, a leading appellate lawyer at Kilpatrick Stockton in Washington, who has known the nominee for 30 years.

They met at Yale Law School, where they were jointly awarded the prize for best law note in the Yale Law Journal in their graduating year of 1975.

They later worked together at the solicitor general's office, a period during which the future Supreme Court nominee once house-sat for Levy, a job which entailed looking after his friend's golden retriever.

Levy said that, although Alito's judicial philosophy could be compared to Scalia's, the two differ substantially in temperament.

Where Scalia is confrontational and acerbic, Alito is quiet and restrained.

"Alito's opinions don't have an elevated decibel level," Levy said.

He described Alito as a "lawyer's judge" who approaches each case with an open mind and studies the facts carefully before reaching any decision.

This is not the way liberal activists are portraying the nominee.

Within minutes of Bush's announcing the nomination at 8 a.m. Monday, liberal groups and some Democrats targeted Alito as a conservative activist judge.

The chorus of criticism immediately suggested the possibility that Democrats could seek a filibuster and the Senate could be headed to a showdown.

An illustration of the change of tone from the preceding nominations was a statement issued by Sen. Patrick J. Leahy, D-Vt., the ranking member of the Judiciary Committee, who voted to confirm Chief Judge John G. Roberts Jr.

"This is a needlessly provocative nomination," Leahy said about Alito.

Although the senator stressed that he would withhold judgment on how he would vote, Leahy cited "areas of significant concern" relating to Alito's track record.

"Judge Alito's record on the bench demonstrates that he would go to great lengths to restrict the authority of Congress to enact legislation to protect civil rights and the rights of workers, consumers and women," he said.

Leahy noted, for example, that Alito had "set unreasonably high standards" for victims of discrimination to meet when pursuing claims in court.

Liberal interest groups announced that they would oppose Alito's confirmation actively from Day One, unlike their statements immediately following the nominations of Roberts and Harriet E. Miers.

Both the Alliance for Justice and People for the American Way issued lengthy reports - obviously prepared well in advance - in which they listed reasons to resist the nomination.

"Instead of going to the Senate for advice and consent, President Bush chose to go to the right wing, injecting divisiveness and controversy into a situation that calls for unity," said Nan Aron, president of the Alliance for Justice. "We call upon Democrats and Republicans alike to reject this nomination."

Echoing that theme, People for the American Way issued a statement promising to engage its 750,000 members in "a massive national effort to defeat Alito's nomination."

The challenge for Democrats is to paint a portrait of a nominee who will radicalize the Supreme Court drastically if he is confirmed, according to Sheldon Goldman, a political scientist at the University of Massachusetts, Amherst.

If the Democrats can make a convincing case to the American people, in part with attack ads paid for by interest groups, they may force moderate Republicans to join them in opposing the nomination, Goldman said.

"Both the right and the left have been gearing up for the mother of all confirmation battles," he said. "This looks like it's going to be it."

The initial aim of a potential filibuster would be to buy time for the case against Alito to be presented, Goldman said, but it also would have the added benefit of forcing O'Connor to remain on the bench, potentially until the end of the term.

The Republicans, in turn, can threaten the so-called "nuclear option": forcing through a change to Senate rules allowing a filibuster to be overcome with only 51 votes.

Normally, a filibuster can be ended only with 60 votes, which would force the Republicans, who have 55 senators, to persuade some Democrats to join them.

The potential for those events could put the spotlight once again on the group of 14 moderate Democrats and Republicans who reached a compromise agreement in May to prevent future filibusters and the nuclear option.

The Democrats who participated agreed not to join a filibuster unless there were "extraordinary circumstances."

But at a press conference Monday afternoon Sen. Arlen Specter, R-Pa., said he did not believe Alito deserved to be filibustered.

Specter is sure to play a crucial role in the upcoming confirmation battle as chairman of the Judiciary Committee and as one of the pro-choice Republican moderates that Democrats may hope to tempt onto their side.

"I'm always concerned about a filibuster, but I think that Judge Alito's record hardly measures up to the standard the 'gang of 14' had on 'extraordinary circumstances,'" Specter told reporters.

He added that he had "no reason to categorize him as an ideologue" and said that, during a meeting with the nominee Monday, Alito had expressed his belief in a constitutional right to privacy.

Specter also revealed that Alito had described Griswold v. Connecticut as good law. Griswold is the landmark 1965 privacy case on which Roe v. Wade is based.

One major difference between this nominee and Bush's two previous ones is that, as a judge with 15 years experience, Alito has a long paper trail and could never be described as a "stealth nominee," as some said about Miers, who withdrew her name from consideration last week.

In fact, as the president noted in introducing his latest Supreme Court pick, Alito has spent more time as a judge than any nominee to the nation's highest court for the last 70 years.

This is in stark contrast to Miers, who had no judicial experience, and Roberts, who was a judge for just two years.

The nomination clearly delighted the same conservative activists who were so critical of Miers.

"Judge Alito has the experience, the temperament and the demonstrated commitment to constitutional text, structure and history that should make him an excellent justice," said Ronald A. Cass, co-chairman of conservative group the Committee for Justice.

Or, as San Marino-based conservative commentator Carol Platt Liebau wrote on her blog soon after the nomination: "Dems - filibuster this!"

Posted 5:45 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2005 The Daily Journal Corporation.
All rights reserved.

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October 28, 2005

CONSERVATIVES REJOICE AT NOMINEE'S WITHDRAWAL
Is Nominating Prominent Strict-Constructionist to High Court Too Risky?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Having played a major role in forcing the White House to withdraw Harriet E. Miers' nomination to the Supreme Court, conservative activists now believe they have the momentum to encourage President Bush to name a prominent strict-constructionist jurist.

But whether the president wants to make a gesture that could lead to a protracted battle or even filibuster in the Senate is another question.

Some observers believe he can find someone, like recently appointed Chief Justice John G. Roberts Jr., who will appease both the extreme right and moderate wings of his party - and, ideally, a handful of Democrats.

Conservative activists acknowledge that a Senate showdown over a particularly outspoken conservative nominee may end in defeat. But to them, that showdown would be in the long-term interests of the country and a way to heal the wounds caused by the failed nomination of Robert H. Bork in 1987.

They also retain resentment about the nomination of David H. Souter by President Bush's father in 1991, who was widely seen as a "stealth" nominee who turned out to be liberal once on the court.

Manuel A. Miranda, a coordinator of conservative opposition to Miers and a former aide to Senate Majority Leader Bill Frist of Tennessee, called Thursday for Bush to make a nomination that "overcomes the stigma created by the Bork and Souter experiences."

Miranda made clear that he and his fellow activists would welcome a partisan confrontation with Democrats.

He wrote in an e-mail to reporters that it is time to end "the corrupting practice of stealth nominees," of which Souter is the poster child.

"The president and his team should not shy from a national debate that reflects well on this great and blessed nation," Miranda added.

Sean Rushton, executive director of the Committee for Justice, a group set up to support Bush's nominees, echoed those sentiments.

Rushton said the president should not be concerned about nominating a prominent conservative jurist as long as the person concerned is suitably well-qualified and capable of withstanding penetrating questions before the Senate Judiciary Committee.

"I think the president needs to go for the best constructionist out there," Rushton added.

But neither the White House nor Republican senators necessarily would welcome a partisan struggle over the nomination.

Both Frist and White House spokesman Scott McClellan told reporters that Miers withdrew purely because of discussions between senators and the president's aides concerning the likelihood of her being confirmed.

"We've always been focused on the Senate, not on the outside commentary or outside groups," McClellan said.

The White House stuck Thursday to its official line that Miers withdrew because of "unsolvable conflicts" over demands from senators to see some documents relating to her role as White House counsel, the job she will return to.

"It was the discussions that we had and the meetings that Harriet Miers had with senators that led us to the belief that this was simply a conflict that could not be resolved," McClellan said.

With other issues on the agenda for both branches of government, ranging from the war in Iraq to the federal budget, a nominee who could appeal to Republicans and to some moderate Democrats may be attractive.

Frist, for example, said Thursday he hoped the next nominee would be confirmed as soon as possible, which won't happen with a long partisan struggle.

Sen. Arlen Specter, R-Pa., speaking on the Senate floor, expressed his frustration that conservative activists had succeeded in forcing Miers to withdraw before she had a chance to defend herself at the confirmation hearing.

"Instead of a hearing before the Judiciary Committee and a debate on the Senate floor, Ms. Miers' qualifications were subjected to a one-sided debate in new releases, press conferences, radio and TV talk shows, and the editorial pages," Specter said.

Potential nominees whom the conservative activists would welcome include Priscilla Owen, a judge on the 5th U.S. Circuit Court of Appeals, and former California Supreme Court Justice Janice Rogers Brown, now of the U.S. Court of Appeals for the District of Columbia Circuit, both of whom Democrats initially blocked with filibusters when nominated to their current positions.

They were confirmed, thanks to the compromise agreement in May, in which 14 senators from both parties reached a deal to avoid further filibusters.

Rushton said the received wisdom that Rogers Brown would face an uphill battle to be confirmed is not necessarily true, claiming that Democrats would be put in a difficult position if they voted against an African-American nominee.

"I think putting forward a Janice Rogers Brown in the wake of Hurricane Katrina would tie the Democrats in knots," he added.

Rushton referred to the perception, seized on by Democrats, that the federal government did not adequately assist African-Americans following the disaster.

Some Democratic senators made it clear Thursday that an openly right-wing candidate would receive a more hostile welcome than Roberts or Miers.

For instance, asked about the chances of Owen being nominated, Sen. Charles E. Schumer, D-New York, said, "That one is easy. We have a history with Priscilla Owen."

Sen. Patrick J. Leahy, D-Vt., the ranking member on the Judiciary Committee, said he hoped the president would consult with the Senate and reach a decision "with the necessary independence from partisan factions."

Sheldon Goldman, a political science professor at the University of Massachusetts, Amherst, pointed out, an all-out battle in the Senate over a controversial nominee could be attractive to the president in one sense: It could divert attention from his other problems.

With indictments possibly coming as soon as today in the Valerie Plame leak case, nominating "someone clearly appealing to the base," like Owen or even Miguel Estrada, who withdrew his nomination to the District of Columbia Circuit following opposition from Democrats, could rally conservative support for the White House, Goldman said.

"This is a way of changing the subject," he added.

Richard Davis, a political science professor at Brigham Young University, agreed, stressing that Bush needs the support of his conservative base through the remaining three years of his term.

"He is going to bend over backwards to please them," Davis said. "He has learned that someone who is not what the right wing wants is not acceptable."

But, as Goldman and other political observers noted, another option for Bush would be to repeat what he did with Roberts and pick a known conservative who has professional credentials impressive enough to woo some Democrats and prevent a possible filibuster.

"Roberts showed the way," said Eugene Volokh, a law professor at UCLA.

Volokh added that the president could choose among "many well-regarded conservative appellate judges" with distinguished records.

Several experts, including Volokh, have suggested that Judge Michael W. McConnell of the 10th Circuit would fit into that category.

McConnell attracts support from social and religious conservatives because he has expressed opposition to Roe v. Wade and has argued in favor of government aid for religious schools.

Unlike Miers, he has experience as a judge and a long public record.

McConnell also has strong academic credentials. Before being appointed to the 10th Circuit by Bush in 2002, he was a law professor well-known for his expertise in the First Amendment.

"He would please the conservatives and attract much support among liberal academics and lawyers, making his confirmation likely without blowing up the Senate," said Thomas E. Mann, a constitutional scholar at the Brookings Institution in Washington.

Rushton also believes McConnell, whom he described as a "principled constructionist," would be a strong candidate whom conservatives would be happy with.

Known for his quiet and friendly demeanor, McConnell would be well-equipped to face a tough interrogation from the likes of Schumer and Sen. Edward M. Kennedy, D-Mass., Rushton added.

All the other names mentioned Thursday as possible nominees are the same ones thought to be on the president's shortlist before Miers was nominated.

Although several women, such as Edith H. Jones of the 5th Circuit and Alice Batchelder of the 6th Circuit, remain high on the lists of some conservatives, Bush may decide to nominate a man.

Samuel A. Alito Jr., a judge on the 3rd Circuit with views similar to Justice Antonin Scalia, was thought to be near the top of Bush's list before Miers was nominated, and J. Michael Luttig, who sits on the 4th Circuit, also has been mentioned often.

Attorney General Alberto G. Gonzales and Emilio M. Garza, a judge on the 5th Circuit, are two potential nominees who could be the first Hispanics on the Supreme Court.

However, Gonzales, a former White House counsel, could run into some of the same problems with privileged documents as Miers.

Bush said he would nominate a replacement in a "timely manner," although there is no indication whether an announcement is imminent.