The Occasional Observer

Just like Social Security is the third rail for elected politicians, abortion is the third rail for judicial nominees. Judges that are in the running for a nomination to the Supreme Court typically have to avoid any direct, broad statements regarding abortion or they will be in for a long, withering confirmation fight. Particularly on the pro-life side, these judges have to convince a GOP President and Senators that they are (wink/nod) ready to overturn Roe, while not having written any decisions directly saying that, in which case the Democrats would just as soon shut down the government than allow that nominee to be confirmed. The political ante is raised, by the way, if the nominee is a woman, and is suspected of being pro-life. Nothing would be as humiliating to Dems as a female Justice authoring the opinion to overturn Roe.

And so, when W was filling Supreme Court vacancies, the conservative blogosphere began the speculation on which of the "short list" judges would turn out to be turncoat "Souters," and which would come through on life issues. Just before the Miers nomination destroyed the morale of conservatives everywhere, it was pretty widely known that W would nominate a woman, with SDO having retired and Roberts already nominated to the court. There were many possible female nominees: Judge Priscilla Owens (5th circuit), Judge Edith Clement (5th circuit), Judge Edith Jones (5th circuit), Judge Janice Rogers-Brown (DC Circuit), Judge Alice Batchelder (6th circuit), Judge Consuelo "Connie" Callahan (9th circuit), DC attorney Maureen Mahoney, and Justice Maura Corrigan (MI Supreme Court). But when it came down to it, the two most likely nominees seemed to be Judge Diane Sykes (7th) and Judge Karen Williams (4th).

The Dems had already told W that Owens would be filibustered. Edith Jones and Rogers-Brown were considered too conservative to be confirmed. Connie Callahan and Maureen Mahoney ("MaMa") were considered moderates and/or blank slates, with high Souterizing potential. Batchelder was too old. Etc.

Sykes was in her late 40s, Williams in mid her 50s. Williams had a long track record in the 4th circuit (she's now the Chief Judge), while Sykes was a fairly recent elevation, but had a history on the State Supreme Court in WI, IIRC. People were really comforted by the fact that Sykes was a member of the Federalist Society and also, for however you take this, "very intellectual." Williams was considered by many posters to be less remarkable, but had a long, consistent track record of conservative jurisprudence. Still, she had a Dem husband, and people openly wondered if exposure to the DC cocktail circuit would unmoor her philosophically. The "argument," as far as it went, was that she was a USC Law grad, not an ivy leaguer. She couldn't have a sophisticated and deeply rooted theory of jurisprudence, one that would keep her voting as a conservative for decades. This was bolstered by one (dissenting, IIRC) opinion she had written on a Miranda case that some felt was too extreme for a "nuanced" legal writer. Mind you, the woman has probably written or joined thousands of opinions at this point.

Well, this is all a bit of a side note, as neither one of the two women were nominated. Had W gotten a third nominee, it might have been otherwise.

But now, less than a year into the Obama administration, Judge Williams was forced to go "on the record" with a partial-birth abortion case coming before her circuit. She had to touch the third rail. As a result, her chances of becoming a S.C. nominee (even if a Republican were to win in '12), are probably (in the words of teddy KGB) "down the f***ing drain."

But it makes for an interesting end note on the blogosphere's 2005 parlor game: did we read the nominee correctly?

Well the question was answered this past week. I missed it when it first came out, but saw the opinoin when I was reading up on the Ricci case.

Turns out a heavily divided 4th circuit voted 6-5 to uphold a state ban in Virginia on partial birth abortion. Any vote could have flipped the decision from a pro-life to a pro-choice one. And on record for life: Chief Judge Karen Williams.

The one that got away.