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Debate Club
DEBATE CLUB 5/23/05

Who Could Win Every Senatorís Vote?

Arkadi Gerney and Carl Tobias debate.

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With debates over nominees for appellate court judgeships producing intense acrimony in Congress, it's hard to imagine a Supreme Court nominee sailing through the Senate with unanimous approval. But some court watchers think candidates exist who are approved by conservatives, lauded by moderates, and acceptable to liberals.

Who is the 100-0 nominee?


Arkadi Gerney is the Director of StartChange, an advocacy group that is launching draftblank.org. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

Gerney: 5/23/05, 09:18 AM
In the very week that the Senate is poised to embark on an unprecedented and historic procedural war, I am going to argue that there is the potential for the next Supreme Court nominee to be confirmed unanimously.

Carl, allow me to indulge in a bit of political analysis before I start naming names.

It appears that Senate Republicans will pull the trigger on the nuclear option tomorrow. Commentators are telling us that the battle over the filibuster is merely setting the stage for the larger battle looming over the next Supreme Court vacancy. This fight over judicial nominees comes as polls show the public is becoming increasingly frustrated with President Bush, who is today less popular than at any other time in his presidency. His signature second-term domestic agenda item, privatization of Social Security, is on life support. At the same time, disenchantment among the public with the House and Senate is now dangerously close to the levels of 1994 that resulted in the dramatic shift to Republican control in the first place. Still, for Senate Democrats, the outlook is not much better. While they are winning the Social Security debate, they have no clear opportunity to put forward their own agenda and risk making permanent the obstructionist tag that has dogged them in the last two elections.

It is in this context that Bill Frist seems ready to unleash the dogs of war and Harry Reid appears ready to invoke a procedural retaliation to bring the Senate to a standstill. As in a real nuclear war, whether or not a clear winner emerges from the battle, it is certain that the fallout will be intensely damaging to both sides.

But even if Senator Frist goes nuclear and succeeds in changing the rules, I believe the next Supreme Court vacancy could provide an opportunity to end the war in the Senate rather than escalate it. For that group of 12 Senate moderates who have been searching—so far in vain—for a filibuster compromise, the next vacancy could be their last best opportunity to lead their more extreme colleagues to peace. How? By agreeing on a consensus nominee and recommending him or her to President Bush and their colleagues.

A consensus nominee for the Supreme Court could help move the Senate back from the brink, restoring a measure of comity to the chamber. For President Bush, selecting a consensus nominee might be the master-stroke that allows him to regain some good will and kick start his stalled second term agenda. And for Harry Reid's Democrats, active support for a consensus nominee provides the opportunity to actually participate in a positive solution.

That's a bit of the How and Why for a consensus nominee. Now, on to the Who.

A good place to start is with two judges President Bush nominated to the Circuit Courts in his first term: Ed Prado (5th Circuit) and Barrington Parker Jr (2nd Circuit). Both are respected moderates.

There's also Judge David Ebel, a Reagan appointee to the Tenth Circuit and a former law clerk to Supreme Court Justice Bryon White whose jurisprudence resembles that of his mentor.

How about Judge Ann Williams of the Seventh Circuit? Nominated to the District Court by the first President Bush and elevated by President Clinton, Judge Williams is a moderate who would be the first African-American woman on the Supreme Court.

Or perhaps terror-busting Chief Judge Michael Mukasey of the Southern District of New York?

I look forward to saying a bit more about each of these people, and throwing a few more hats into the ring. Carl, I also look forward to reading your perspective.

Tobias: 5/23/05, 03:04 PM
Arkadi, thanks so much for placing these issues in context. I'll attempt to elaborate your effort. I agree with some of your analysis of the political background, which I would like to supplement.

It is clear that both Republicans and Democrats share much blame for the present deteriorated condition of federal judicial selection. For example, the Republican Senate majority delayed consideration of many nominees submitted by President Bill Clinton, and 60 never received confirmation votes. Democrats have delayed a number of President George W. Bush's appellate nominees, even using filibusters to block some. The Republicans' threatened detonation of the "nuclear option" would violate Senate Rule 22 and increase executive appointment power at the expense of the Senate's advice and consent power.

Thus, the judicial selection process has been punctuated by accusations and recriminations, partisan infighting and paybacks for nearly two decades. These phenomena have undermined public respect for the Executive, the Senate, the judiciary and perhaps even the nominees appointed. Therefore, it would be valuable for both political parties and the nation to break the vicious cycle, halt the downward spiral, and stop the counterproductive dynamics. Perhaps finding a consensus Supreme Court nominee will help rectify or at least ameliorate these difficulties.

Several procedures could facilitate the selection of a consensus nominee. One proposal floated by Senator Robert Byrd (D-W.Va.) and Senator John Warner (R-Va.) would have a bipartisan panel of senators choose a pool of acceptable candidates and send this group to President Bush. He could pick a nominee from that pool or forward someone of his own choosing. Even if the president rejects this process or considers the candidates submitted unacceptable, Mr. Bush might secure an analogous result with consultation. If the chief executive were to broach informally possible nominees with Democrats before he formally nominates the candidates, as President Clinton did with Justices Ruth Bader Ginsburg and Stephen Breyer, Mr. Bush could institute smoother confirmation.

As to the Who, I await your elaboration of the qualifications possessed by the potential candidates you suggested. I am compiling a list of the specific individuals whom I might suggest, but today I'll address qualifications. Merit must be the polestar. The nominees must be extremely intelligent, independent, and industrious while possessing great integrity and a balanced judicial temperament. For now, I want to pass on ideology, which probably will be at the center of the debate on the next nominee. I did notice that your list only included lower federal court judges, and I wonder whether that service has become a prerequisite to Supreme Court nomination.

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Gerney: 5/24/05, 09:07 AM
Carl, there has been some exciting news out of Washington. Cooler heads have prevailed in the Senate and the nuclear option seems indefinitely postponed.

I want to expand on the excellent point you make about procedures to facilitate consensus. Building from the agreement announced last night, it is time for Senate moderates to continue work together to set the chamber's agenda. The Byrd-Warner proposal you cite is a good idea, but I think moderate Senators may have to go beyond quiet nudging and backroom consultation to get this President's attention. Moderates in the Senate—and the public at large for that matter—should go public with choices for a consensus nominee. And they should do so before the President nominates someone. There will certainly be loud arguments from ideologues on the Left and the Right in any upcoming Supreme Court nomination debate. To make real the possibility of a consensus candidate, political moderates too will have to pump up the volume. (I can't resist a plug: in June, we are launching a grassroots campaign for a consensus nominee with exceptional credentials. Readers can see our teaser site at www.DraftBlank.org).

Now, on to the qualifications. I agree completely that we need a nominee with abundant intelligence, experience, and credentials. That said, as important a set of qualifications is what you describe as "independence" and a "balanced judicial temperament." Both of these terms imply some degree of fair-mindedness and ideological moderation. Particularly in this moment, we need a nominee who is—to borrow a phrase from our Rhetoritician-in-Chief—"a Uniter, not a Divider."

Ed Prado and Barrington Parker Jr. are two potential nominees who fit the bill.

Judge Prado, a Texan who sits on the Fifth Circuit, was first appointed to the District Court by Ronald Reagan in 1984. In his twenty years on the federal bench, Judge Prado has built a record as a moderate, thoughtful jurist. Prado has mixed what some might describe as a slightly liberal record on criminal, immigration, and federalism cases with a slightly conservative record on matters involving business regulation and disability cases. Judge Prado has another quality that would make him an historic nominee. He would be the first Latino Supreme Court Justice.

Like Judge Prado, Barrington Parker Jr. was nominated for the Circuit Court by George W. Bush and confirmed unanimously by the Senate. As a District Judge, Parker, an African-American, received accolades as the presiding judge in cases involving the Gotti crime family and political powerbroker Albert Pirro.

I'll say more about others from the federal bench later in the week because I want to respond to your point about candidates with other backgrounds.

One non-judge who immediately springs to mind is Mary Jo White, the former United States Attorney for the Southern District of New York. Appointed by President Clinton in 1993, Mary Jo White's office prosecuted the major terrorism cases of the 1990s. In 2001, President Bush made the unusual request that she remain in her office. That year, White, a registered independent, gained the respect of many conservatives by aggressively pursuing the investigation of President Clinton's pardon of Marc Rich. With the current Court regularly navigating the interplay of the War on Terror and the U.S. Constitution, Mary Jo White would bring intelligence, balance, experience, and independence to those deliberations.

Finally, Carl, I can't wait to see some of your names.

Tobias: 5/24/05, 05:09 PM
Arkadi, I agree that the news from the Senate is exciting. As Senator John McCain suggested, seven Republicans and seven Democrats crafted a memorandum of understanding which meant that "The Senate won, and the country won." Most important, this agreement defused the nuclear option, the detonation of which would have jeopardized the Senate as an institution and would have increased executive power to appoint judges at the expense of Senate power to give advise and consent.

The memorandum of understanding includes relatively few details, leaves some matters unclear or unstated, and requires definition of generalized terms, such as "extraordinary circumstances." Of course, the major question left unanswered is the agreement's effect on a Supreme Court vacancy, should an opening occur. The memorandum did not include the Byrd-Warner proposal for a bipartisan group that would compile a list of acceptable candidates for presidential consideration. However, the memorandum expressly urged the president to consult. I am somewhat optimistic that the chief executive will consult partly because the failure to do so may have galvanized the efforts of the 14 senators who reached the agreement. If Bush fails to consult, and even if he consults, moderates, including the 14 senators, should follow your advice by assembling lists of acceptable candidates.

We agree that we need a uniter now and that intelligence and experience are important qualifications. However, I did not mean to imply that independence and temperament necessarily translated into ideological moderation.

Your characterizations of Judges Prado and Parker seem accurate and they both enjoy fine reputations, although I certainly have not read all of their opinions or appeared before the judges. I also agree that Mary Jo White enjoyed a reputation as an aggressive, independent, fair-minded prosecutor when she served as the U.S. Attorney in the Southern District.

United States Attorneys are an interesting group of potential Supreme Court nominees. Additional possibilities would include state supreme courts, the practicing bar, legal scholars, and politicians. As to the last category, U.S. senators would be interesting choices because senators typically extend courtesy to one of their own. Remember, however, that Lewis Powell, Jr., whom President Richard Nixon appointed in 1972, was the last appointee who had not previously served as a federal appellate judge.

I have now managed to complete my second post without proposing a single name. Let me close with several, late judges who personify the type of jurists who should be considered: Circuit Judges Richard Arnold, Henry Friendly, and Harold Leventhal.

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Gerney: 5/25/05, 09:10 AM
Carl, I want to start with the point you make about how the Senate agreement calls for advance consultation with the President. It seems to me that some in the White House may see judicial selection as a simple two-stage process: the President nominates and the Senate votes up or down.

The language of the agreement suggests that these 14 Senators see the judicial selection process differently. The two stages are not so neatly separable. These Senators expect to be heard before the President announces his nominees. To these Senators, the Constitutional guarantee of advice and consent implies more than an up or down vote. Rather, advice and consent means some level of consultation.

As the text of the Senate agreement rightly notes, this broader conception of advice is consistent with the "early practices of our government" and as you noted earlier such advice was part of the backdrop for the most recent Court nominations. In fact, as described in his book Square Peg, Senator Orin Hatch advised President Clinton to consider nominating both Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. And, of course, that is what Bill Clinton ultimately did.

Now back to the names.

I want to confess the limits of my knowledge about late Circuit Court judges you cite. But, from what I do know, the names Arnold, Friendly, and Leventhal convey those ideals of independence, intellect, gravitas.

Part of what makes these judges stand out as extraordinary is that we can examine their complete judicial careers. Though to some their excellence may have been clear early on, from our vantage point today we are able to look back on the entirety of their careers.

Picking a Supreme Court Justice from among the living is an inherently more speculative process. It is particularly speculative if a President picks someone who is young and inexperienced.

The names I have cited in previous posts are people who have long tenures in high legal positions. Judge Prado is 58 and has sat on the federal bench for more than 20 years. Judge Parker, 60, has been a federal judge for more than 10 years. David Ebel, 64, has been a Circuit Judge for 17 years. While age and tenure in high positions are imperfect proxies for wisdom (I am not calling for some quantitative litmus test), I do believe that the long experience of each of these candidates adds greatly to their readiness to serve on the Court.

By contrast, Clarence Thomas was 43 years old and had been a federal judge for only one year when the first President Bush nominated him for the Supreme Court. As Senators—and the rest of us—voice advice to this President Bush on who to pick for the next vacancy, I hope experience is a quality we all prize.

Tobias: 5/25/05, 04:55 PM
Arkadi, I also want to begin with the idea of presidential consultation. I hope that President Bush will be responsive to the overture which the Memorandum of Understanding respectfully extended. It urged that he broach nominees informally with senators before formal nomination. If the chief executive does not consult, and perhaps if he does, senators may want to assemble lists of promising candidates.

Many observers speculate that the White House has a "short list" of potential Supreme Court nominees, which reportedly includes Fourth Circuit Judges Michael Luttig and J. Harvie Wilkinson, III, Fifth Circuit Judge Emilio Garza, Tenth Circuit Judge Michael McConnell, D.C. Circuit Judge John Roberts, and former Solicitor General Theodore Olsen. Senators should compile a similar list. This could be assembled by Senator Arlen Specter (R-Pa.), the Senate Judiciary Committee Chair, some combination of the "gang of fourteen," who signed the Memorandum of Understanding, or some form of bipartisan panel that the signatories considered but ultimately deleted from the final accord. Past experience suggests that the White House may not consult and will reject the above idea respecting Senate discharge of its "advise" responsibility. In any event, compiling the list will help identify the requisite qualifications and the type of candidate who might be acceptable, while the list might prove useful, should the president and the Senate reach an impasse.

I partially agree with your views regarding experience. Judges Friendly and Arnold had shown by their records at Harvard Law School that both were destined for greatness, and similar ideas pertain to Judge Leventhal. I agree that experience is valuable in many ways. Experience ostensibly enables a jurist to have perspective, to "take the long view," to exercise judgment and to acquire humility, not being too sure that judges' first or own ideas are necessarily correct. It also helps to have lived in the world for a lengthy period, accumulating a variety of experiences.

Perhaps most important, experience often provides a record on which to premise judgments about an individual's qualifications. For example, most members of the White House's purported short list have written many appellate opinions, while Judges McConnell and Wilkinson have written numerous books and many articles. These documents warrant careful scrutiny in ascertaining whether their authors should be elevated to the Supreme Court.

The Bush Administration has tended to nominate younger individuals to the appellate courts and may choose to follow this course, should a Supreme Court vacancy arise. Younger nominees have less thorough records on which to premise judgments about their qualifications. Younger appointees also enable presidents to leave longer legacies, as those judges will be deciding cases years after presidents leave office.

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Gerney: 5/26/05, 09:29 AM
Carl, I want to pick up on your points about the age of nominees and President Bush's presumed short list.

On age, I think you are absolutely right that picking a younger nominee is an opportunity for a President to leave a more permanent mark on the Court. So, younger nominees combine both a shorter record to evaluate and a greater potential to alter the long-term balance of the court. Both of these inherent qualities of younger candidates will and should lead to greater scrutiny and skepticism in the Senate.

Now let's apply this age factor to a couple of names you mention from President Bush's presumed short list: Michael Luttig and Harvey Wilkinson. Both of these Fourth Circuit judges are very conservative, to the right of probably more than 90% of the federal bench. Both of these men would attract enormous scrutiny in the Senate—I think properly so. One difference between them is age. Luttig is 50. Wilkinson is 60. I have serious doubts about whether either would be confirmed, but I'd guess Wilkinson would have a better shot because his confirmation might throw the Court out of balance for maybe only 20 years, instead of perhaps 30 years or more.

For President Bush, selecting an older, more experience nominee could be a threshold act that builds some trust and goodwill among moderates.

I want to return to one of the names I mentioned earlier on in the debate: Chief Judge of the Southern District of New York Michael Mukasey. Sixty-one years old and with 17 years on the bench, Judge Mukasey is of the right age and experience. More importantly, by all accounts, Judge Mukasey is tough, independent, and smart. Something of a Giuliani Republican, Judge Mukasey presided over Jose Padilla case and many other high-profile terrorism matters. Like Mary Jo White, Judge Mukasey would be prepared to handle the growing number of terrorism cases that are reaching our highest court. Moreover, in Mukasey, President Bush would find someone who is usually willing to support tough measures to combat terror—take, for example, this spirited defense of the Patriot Act.

Finally, Carl, I am anxious to hear your names for potential consensus nominees. Like the mediocre card player that I am, I feel like I may have shown my cards too early in our debate. Do you have an ace in the hole?

Tobias: 5/26/05, 04:28 PM
Arkadi, I believe that senators must carefully scrutinize all nominees for the Supreme Court, the appellate courts, and the district courts. Your call for heightened Senate scrutiny of, and skepticism about, younger nominees would apply to former Alabama Attorney General William Pryor, whom President Bush accorded a recess appointment to the 11th Circuit, and whose nomination to that court senators will soon debate. Illustrative are Pryor's disparaging characterizations of Roe v. Wade and the Supreme Court. Senators must also carefully scrutinize the record of California Supreme Court Justice Janice Rogers Brown, who is a nominee for the D.C. Circuit. This court is the second most important in the nation, and a majority of its docket comprises appeals from administrative agency decisions. Thus, senators must closely assess her record and answer whether it qualifies her for this court, especially given her clear, blatant hostility to government, which is best exemplified by her characterization of the New Deal as the "triumph of our socialist revolution."

Senators should similarly scrutinize the records compiled by 4th Circuit Judges Luttig and Wilkinson (in the interests of full disclosure, Judge Wilkinson and I were law school classmates, and Judge Luttig attended the same school). I recommend comparing the two judges opinions in the case which challenged the constitutionality of the civil remedy in the Violence Against Women Act, Brzonkala v. VPI. I also suggest comparing Judge Wilkinson's opinions in the enemy combatant designation case, Hamdi v. Rumsfeld, especially the third one, and Judge Luttig's dissent from denial of rehearing en banc in Hamdi. Judge Wilkinson has also written numerous books and many articles.

I understand that Chief Judge Mukasey enjoys a reputation for being "tough, independent, and smart," attributes that he exhibited in the Padilla case when dealing with his counsel and the government, although some observers found him overly deferential to executive power. However, expertise in one area, even a field as important as terrorism, should not drive Supreme Court appointments. If expertise in resolving terrorism cases on appeal were critical, Fourth Circuit judges might have an advantage, as so many cases have arisen there.

Assuming for the purpose of argument that "selecting an older, more experienced nominee" could build "some trust and goodwill among moderates," here are numerous candidates whom I would suggest: former 3rd Circuit Chief Judge Edward Becker, former 7th Circuit Chief Judge Richard Posner, 3rd Circuit Chief Judge Anthony Scirica, 4th Circuit Chief Judge William Wilkins, 2nd Circuit Judges Jose Cabranes, Amalya Kearse and Pierre Leval, D.C. Circuit Judge Judith Rogers, Ninth Circuit Judge Pamela Ann Rymer.

In my next post, I'll attempt to emphasize potential candidates who are not presently serving as federal appellate judges.

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Gerney: 5/27/05, 10:45 AM
Carl, I agree that the Senate should carefully scrutinize all judicial nominees.

The two cases you cite point to interesting contrasts between Judge Wilkinson and Judge Luttig. For Judge Wilkinson, these opinions evidence some degree of restraint and judicial minimalism—an instinct to rule on narrower grounds.

Judge Luttig has a more activist approach. At first, the seeming deference that his Hamdi concurrence gives to the Executive looks quite at odds with his unwillingness to defer to Congress in Brzonkala. What squares this circle is Judge Luttig's tendency towards sweeping rulings—an apparent determination opine on his own ultimate views of the requirements and guarantees of the Constitution, even where cases could be resolved on far narrower grounds. In a Luttig nomination, the country might be faced with a 30-year crusade to reshape the Constitution.

I want to say a quick word about "activist judges." I find it interesting how selectively our elected leaders seem to decry judicial activism. During the recent controversy over the Schiavo case, House Majority Leader Tom DeLay and Senator John Cronyn—two people who I would expect to be among the staunchest supports of a Luttig nomination—made some pretty threatening comments about the judges who ruled in the case. Especially in light of the killing of Judge Joan Lefkow's family members and other recent violent attacks on judges, we should hope that both sides of the Supreme Court control their rhetoric.

One of the virtues of nominating a moderate or a moderate-conservative is that it would restore trust and goodwill to the broader judicial selection process. If President Bush nominates a hard-line conservative, Democrats will feel compelled to respond the next time they're in power, and within a generation we could have a judiciary that is as polarized as the Senate is now—not a happy outcome.

Moreover, the politicization of the process inherently leads to larger swings in constitutional interpretation. Conservatives may have their era in the court, but at some point, liberals will once again have theirs. As the swings in control become more violent, the jurisprudential approach will become more chaotic, incoherent, and inconsistent. Ultimately, this increasing polarization can only serve to undermine the public's confidence in the courts.

At some point, this vicious cycle must end. In the example for the 14 Senators who came together to head off the nuclear option, we can see the opportunity for our elected leaders to act as statesmen instead ideologues. If this group of Senators, with help from some of their colleagues and the public, brings the name of an intelligent, experienced, independent, fair-minded candidate to the President, a consensus outcome is possible.

I believe that the names I have cited (as well as a number of the people you cite) fit the bill. I believe a consensus Supreme Court candidacy can succeed.

Finally, Carl, thank you for this exchange of ideas. I have enjoyed our discussion very much.

Tobias: 5/27/05, 06:31 PM
Arkadi, I agree that the Senate should carefully scrutinize nominees' full records, although I disagree somewhat with your characterizations of Judges Wilkenson and Luttig.

I agree that recent actions, including the Schiavo controversy, have threatened judicial independence. Members of Congress and other public figures should refrain from attacking judges for their substantive decisionmaking and should decrease the rhetoric while remembering that judges cannot respond to these attacks.

I also agree with much that you say about the virtues of compiling lists of intelligent, experienced, independent, fair-minded candidates. First, I wish to elaborate my Thursday list of potential nominee from the appeals courts. The list should also include: 1st Circuit Chief Judge Michael Boudin, 2nd Circuit Chief Judge John M. Walker, Jr. (a Bush family member), 10th Circuit Chief Judge Deanell Reece Tacha, 2nd Circuit Judge Ralph Winter, 4th Circuit Judge Paul Niemeyer, 5th Circuit Judge Patrick Higginbotham, and 9th Circuit Judge John Noonan. Don't forget 7th Circuit Judge Ann Claire Williams and 10th Circuit Judge David Ebel whom you mentioned.

That said, here are numerous possible candidates, who are not now appellate judges. These lists will be less comprehensive either because they are less probable sources of candidates, there are too many candidates to list them all or I lack sufficient familiarity with the sources.

Federal district judges are another source. However, they are less likely choices because most have appellate experience only from sitting by designation on appeals courts. Examples are D.C. District Judge Colleen Kollar-Kotelly and Eastern District of Virginia Judge Leonie Brinkema, both of whom have handled terrorism matters; District of Maine former Chief Judge D. Brock Hornby; and Northern District of California District Judge Marilyn Hall Patel.

United States Senators are a third source and senatorial courtesy would facilitate the confirmation of members, especially senators on the Judiciary Committee. Examples on the Committee are Republican Senators Orrin Hatch (Utah), John Kyl (Arizona), Jeff Sessions (Alabama), John Cornyn (Texas) and Lindsey Graham (South Carolina). Examples not on the panel are Senators Kay Bailey Hutchinson (Texas), Melvin Martinez (Florida), and Elizabeth Dole (North Carolina), while the selection of Republican Senators George Allen (Virginia) or Rick Santorum (Pennsylvania) would remove them as presidential contenders.

Legal scholars are a fourth source. George Will—who blames elite law schools for much that he finds wrong with American jurisprudence—to the contrary notwithstanding. Examples are Yale Professor Stephen Carter, Chicago Professors David Currie and David Strauss, and Harvard Professors Mary Ann Glendon and David Shapiro.

The practicing bar comprises a fifth source. Examples are Alberto Gonzales, the Attorney General, Theodore Olsen, Solicitor General in the 1st Bush Administration, and Larry Thompson, Deputy Attorney General in that administration.

A final possible source would be the 50 state supreme courts and the 50 governorships; however, I lack sufficient familiarity with them all to tender a list.

Arkadi, I have thoroughly enjoyed our exchange and I hope that it enhances the search for the next Justice.

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