I am sure this is going to get lost in the shuffle during the Alito nomination war, but if Alito is confirmed George W. Bush, the former governor of Texas who campaigned in the mountain West in a cowboy hat as if he were one of us, will have presided over a historic shift from the West to the East in the Supreme Court. Rehnquist and O'Connor both hailed from Arizona (in addition to both having gone to Stanford Law School). John Roberts came to the Court from the District of Columbia, and Samuel Alito is from Trenton, New Jersey. That would leave Anthony Kennedy of Sacramento, California as the only justice from west of the 100th meridian.
Who cares? Well, when Harriet Miers was nominated, Sen. Wayne Allard announced that he was concerned that as a Texan Miers might not have sufficient background in Western land and water issues that often come before the Court. After he met with Miers, Allard issued this statement:
Although today's discussions went well, I am not yet ready to commit to voting to confirm her nomination. This meeting has been a positive first step, and she addressed a number of my concerns. We had a wide-ranging, open-ended discussion on a number of topics, including some of the issues I raised in my letter to the President such as public lands policy, environmental issues and water law, which are extremely important to me now in light of the absence of a Western presence on the Supreme Court.
Allard now says he is favorably inclined to vote for Alito, with nary a word about how many water or public lands cases have been handled by the Third Circuit. Ken Salazar, on the other hand, made a point of mentioning Colorado Supreme Court Justice Rebecca Kourlis as a Republican woman "well-versed in Western water law."
Salazar also stated that he was miffed that Bush failed to consult with the Senate before making his selection. This sounds like code for invoking the "extraordinary circumstances" exception that would allow a filibuster under the Gang of 14 deal, which expressly says that "advice" under Article II, Section 2 of the U.S. Constitution requires the president to consult with the Senate before sending over a nomination.
The signs from Colorado's junior senator are encouraging, but a little friendly persuasion never hurt. If you are inclined to contact Senator Salazar's office, you might want to mention that (1) it is important that at least one of the justices replacing the two outgoing Arizonans be well versed in Western regional issues; and (2) that Bush has failed to honor his constitutional responsibility to get advice from the Senate on nominees, thus creating an "exceptional circumstance" under the Gang of 14 deal.