Speculation that Bush will nominate Fourth Circuit Court of Appeals Judge Karen J Williams to replace Sandra O'Connor appears to be growing, at least at
Red State.
Analysis below the fold...
According to Erick's "source"
"We all know the litany: Brown. If not Brown, Jones. If not Jones, Garza. If not Garza, Alito. If not Alito, Luttig. Here's a hint. It will be none of them. The first four have been too vocal on abortion. Luttig has been sabotaged by the Chamber and others because they don't think he would side with them on some key issues stemming from federal regulations. The President is not going to name anyone who has specifically written that Roe should be thrown out. It's not going to happen and people should deal with it."
So, who does he think it will be? "Senate staffers, White House staffers, and outside groups have been mentioning with more frequency Karen Williams. There is also Batchelder and Sykes, but I think Sykes is too young. I don't think it will be Corrigan. Sandra Day O'Connor is rumored to have told the President that, from her own experience, she thought coming from the state courts to the Supreme Court without going through the appellate level was and is too much. ...That would rule out Cantero and Corrigan."
That's not a bad analysis. One argument that leads me to believe that Williams will be the nominee, other than being another "stealth" nominee on the abortion issue, is her involvement in the Moussaoui case. Bush clearly believes that his legacy can be salvaged by keeping 9/11 and the war on terror front and center. Problems in Iraq? 9/11. Poll numbers tanking? 9/11. Katrina? 9/11. You get the idea.
The Fourth's ruling in the Moussaoui case effectively re-wrote the Sixth Amendment, allowing summaries of witness testimony instead of compelling witnesses to appear on behalf of Moussaoui. Jacob G. Hornberger of the Future of Freedom Foundation wrote
Although the Fourth Circuit Court of Appeals paid the obligatory lip service to the Sixth Amendment in the Zacharias Moussaoui case, in an audacious act of judicial activism, its ruling effectively rewrote and negated the Sixth Amendment to account for the government's new "war on terrorism." While ostensibly upholding the Constitution, the court's ruling was actually a big win for the government and a big loss for the Constitution... Ostensibly upholding the clear and unequivocal language of the Sixth Amendment, a three-judge panel of the Court of Appeals rejected the government's two primary arguments. First, the court held that the Sixth Amendment's compulsory process clause extends to witnesses abroad who are in U.S. custody. Second, it held that the express guarantees provided by the Sixth Amendment trumped the government's warmaking power.
So what's the problem? Isn't this a victory for Moussaoui, the Sixth Amendment, and the Constitution? Not when one discovers what the Court of Appeals did next... The court reversed Brinkema's order permitting Moussaoui to take the oral depositions of the witnesses and ordered instead that Moussaoui be relegated to reading to the jury excerpts from summaries of answers to interrogations that the government has previously shown to Moussaoui.
And who conducted those interrogations? It's not clear, but probably agents of the U.S. government and quite possibly foreign agents as well. What were the circumstances under which the interrogations were held? That is, were the statements made under oath, under duress, or under torture? We don't know. And who prepared the summaries of the answers to the interrogations? You guessed it -- U.S. government officials!
How reliable is all that?
...
Thus, despite the lip service paid to the Sixth Amendment, the Fourth Circuit Court of Appeals has denied Moussaoui his Sixth Amendment right to bring witnesses to trial who could help establish his innocence of the charges against him. In an era of judicial activism, the court effectively rewrote the Sixth Amendment... So now he faces the death penalty but is unable to summon witnesses in government custody who could help to establish his innocence of the charges... The lead opinion was authored by Justice William W. Wilkins. The second opinion, by Justice Karen J. Williams, is the weakest opinion of the three. While concurring with Justice Wilkins's decision on the use of the summaries, she unequivocally holds that the Sixth Amendment guarantee of compulsory process cannot be used to interfere with the executive branch's warmaking powers. Unfortunately, Justice Williams (and the other two justices) never explains the process by which she arrives at her conclusion that the government's "war on terrorism" is akin to a real war unlike, say, a metaphorical war such as the "war on crime" or the "war on drugs." She apparently simply assumes that because the military is involved in the process the arrest of accused terrorists is a warmaking operation. Given that reasoning, one can only assume that Justice Williams would also rule that the government's Waco operation or the army's active involvement in the war on drugs would also trump the due process guarantees provided in the Bill of Rights. Ironically, none of the justices ever addresses the pertinent issue: If this is indeed a real war, what in the world is Moussaoui doing litigating in the Fourth Circuit Court of Appeals rather than sitting in a POW camp?
With Williams, Bush can point to this decision as upholding the Constitution, while simultaneously claiming that Williams is a tough judge in the war on terror. She can certainly be counted on to uphold any parts of the PATRIOT act that come before the court and opposition to her will certainly be painted as the Dems being soft on terror. If Hornberger is correct, any military operation like, say, responding to natural disaters, would trump individuals' rights. Scary.