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Two top Senate Democrats floated their own list of Supreme Court possibilities last week — three Hispanic judges first appointed to the federal bench by either President Ronald Reagan or President George H.W. Bush. All three — Edward Prado of the U.S. Court of Appeals for the 5th Circuit, Sonia Sotomayor of the 2nd Circuit, and U.S. District Judge Ricardo Hinojosa of the Southern District of Texas — had been vaguely on the radar of nomination watchers, but not near the top of the list. And if they weren’t at the top of the list before, they’re hardly likely to be now, especially after their endorsements by Senate Democratic leader Harry Reid (Nev.) and the top Judiciary Committee Democrat, Vermont’s Patrick Leahy, reportedly during their July 12 breakfast with President George W. Bush. “This can’t be the best you can have,” one senior Republican Senate aide noted dismissively in an interview after the meeting. “If you want to make a shot, make a shot. We’re looking for heavyweights.” Prado, for example, was nominated to the appeals court just two years ago by Bush, and there is a Web site, draftprado.org, supporting his candidacy. The liberal Alliance for Justice points to a St.Petersburg Times story in 2000 that reported that Prado played a satirical song about federal judges in the midst of a murder trial. Prado, reached in his chambers late last week, said he played the song but not while court was in session. The song, “Appointed Forever,” has the tune of “Happy Forever.” The chorus: I’m a federal judge And I’m smarter than you For all my life I can do whatever I want to do For all my life Prado said his courtroom had been outfitted with sophisticated sound equipment as part of a program to train judges in new technology. He said the song, from an Austin, Texas-based group that spoofs pop music, “was a humorous way of demonstrating the sound system,” adding that “I played it during a lull in the trial, to lawyers and media who were in there.” Prado has a Texas-based résumé that could attract Bush. A San Antonio native, he obtained his B.A. and J.D. from the University of Texas. He served as an assistant district attorney and an assistant federal public defender — something that could give him grief from conservatives — as well as the U.S. attorney for the Western District of Texas before being appointed to the federal bench. Sotomayor, a Princeton grad and Yale-Law-School-educated lawyer, grew up in a Bronx housing project and is probably considered the most liberal of the three. She was nominated to the court of appeals by President Bill Clinton in June 1997 and confirmed by the Senate more than a year later. As an assistant district attorney in New York County, she prosecuted a slew of serious crimes, from child pornography to murder. Sotomayor didn’t return a call for comment. Of the three, it is Hinojosa who may be most acceptable to the outside interest groups pressing for a hard-right conservative. Currently the chairman of the U.S. Sentencing Commission, he was named to the federal bench in 1983. Hinojosa didn’t return a call for comment. During college in the late 1960s and early 1970s, Hinojosa said in an interview in a publication for University of Texas alumni, “My main activity on campus was in the Young Republicans.” If Bush is looking for someone without a long paper trail, Hinojosa could be his man. In more than 20 years on the bench, he has published just two opinions as a district judge, a situation explained in part by the fact that his docket in the border town of McAllen, Tex., is dominated by drug and immigration cases. There are few of the civil cases that prompt written opinions. “The question is whether he is philosophically conservative and not just pragmatically conservative,” says one conservative court watcher. “He’s traveled in Republican circles; he’s on the sentencing commission. I don’t know whether he’s a constitutionalist, but if he is, he could be the one person in that group that’s OK.” — T.R. Goldman
WORLDVIEW So where did Justice Sandra Day O’Connor go after announcing her retirement? Not to Disneyland. Try Istanbul instead. But her trip to Turkey was for work, not relaxation. Underscoring her longstanding interest in worldwide rule-of-law issues, O’Connor attended the annual conference of CEELI — the American Bar Association project that stands for Central European and Eurasian Law Initiative. Since 1990, CEELI, under O’Connor’s active participation, has been assisting nations in that region to build and improve legal systems as the Soviet Union crumbled. “She’s been our spiritual leader all along, and it meant so much to have her there,” says R. William Ide III, the chairman of CEELI’s executive board, who returned from Turkey on July 14. Ide, a partner at McKenna Long & Aldridge, is a former president of the ABA. Ide says O’Connor attended CEELI meetings in Istanbul “from dawn to dusk” from July 10 to 13 as one of 250 lawyers and judges from 26 countries. O’Connor was accompanied by her sister, Ann Day, a member of the Pima County Board of Supervisors in Arizona. Ide says he saw no sign that O’Connor was slowing down in anticipation of retiring. “Every day she wakes up and says, ‘What can we get done today and tomorrow?’ There was no breaking stride on her part,” says Ide. “I saw as much energy if not more” from O’Connor. She also pledged to continue working on global legal issues after she retires, he says. One example: O’Connor has agreed to be the keynote speaker for a worldwide symposium on the rule of law, being held this fall in Washington, D.C. One of the most meaningful moments of the meeting, Ide says, came when O’Connor gave an award to Viktor Kryvenko, the justice of the Ukrainian Supreme Court who played a pivotal role after that country’s fraudulent elections last year. “It was one Supreme Court justice to another,” Ide says. Although O’Connor’s interest in international legal organizations is long-standing, it is a lesser-known part of her legacy. She first caught the attention of the late Chief Justice Warren Burger at a judicial conference in England in the late 1970s, and Burger lobbied for her appointment with President Reagan. The papers of the late Justices Thurgood Marshall and Harry Blackmun are full of invitations from O’Connor to meet with one visiting foreign jurist or another. At a recent Legal Times panel on the Supreme Court, Solicitor General Paul Clement described O’Connor as the Court’s diplomat. “Laws are organic, and they benefit from cross-pollination,” O’Connor wrote in her 2003 book, The Majesty of the Law. “We should keep our eyes open for innovations in foreign jurisdictions.” In her book she also spoke of the importance of establishing independent judiciaries in new democracies. “Even countries that do not employ the American separation-of-powers model,” she wrote, “must take steps to safeguard the independence of the judiciary.” Mark Ellis, CEELI’s founding director and now executive director of the International Bar Association in London, says O’Connor was passionate about CEELI from its inception. “She saw how unique this period would be,” he says, referring to the demise of the Soviet Union, when new governments would be looking for help to build their legal infrastructure. “But as the euphoria transformed into a great deal of hard work, a number of people lost interest. She never did.” In the recent hot debate over the use of international law in Supreme Court decision-making, O’Connor came down on the side of looking at foreign law and court decisions as a relevant, but not decisive, consideration. “I really think this is much ado about nothing,” she said during a televised discussion on April 21 with colleagues Justices Antonin Scalia and Stephen Breyer. “It doesn’t hurt to be aware of what other countries have done.” — Tony Mauro
WHAT TRANSITION? Inside the Supreme Court, O’Connor’s July 1 retirement announcement has made almost no perceptible difference. Petitions still flow into O’Connor’s chambers, her four clerks from last term are leaving in phases and looking for jobs, and her three new clerks are reporting for duty, with plenty of work to do. The reason that so little has changed lies in O’Connor’s carefully worded July 1 letter to Bush, which states her retirement is effective “upon the nomination and confirmation of my successor.” As things are shaping up, that means her new clerks will have at least a couple of months of experience before their settled plans for working seven-day weeks as clerks at the Court for the next year begin to change. The new clerks are Benjamin Horwich, a Stanford Law School grad; Amy Kapczynski, a graduate of Yale; and from Harvard comes Alexander Volokh — yes, the brother of University of California-Los Angeles law professor Eugene Volokh, who also once clerked for O’Connor. So what happens to the trio once O’Connor officially leaves? One will likely stay on, since retired justices are assigned one clerk. It is not certain how that clerk will be picked. When Justice Lewis Powell Jr. retired, his four clerks drew a name out of a hat to decide. As for the other two, they could be redistributed to, or shared with, other justices’ chambers; they could be made available to O’Connor’s successor; or they could be offered the chance to reapply to the Court next term. Or, conceivably, the clerks could be shown the door. After Powell retired abruptly in late June of 1987, two of the three law clerks who suddenly were out on the street had jobs by August. No tears need be shed, then, for the O’Connor clerks whose lives have been scrambled by her resignation. Lawyers at the firms that like to hire Supreme Court law clerks say the O’Connor trio will have just about the same cachet as clerks who spend the entire term at the Court. “Anyone who was hired as a Supreme Court clerk would be a valuable commodity on the market, no matter how long they work there,” says Jones Day partner Michael Carvin, who says he has already talked to some of last term’s O’Connor clerks about jobs at his firm. The clerks — past and future — enter a job market that continues to be stunningly lucrative. Last year, hiring bonuses for Supreme Court clerks topped $150,000 at some firms — in addition to starting salaries at that level or higher. As for O’Connor’s offices, it appears likely she will be uprooted for the second time this year when she retires. Because of the ongoing Court modernization project, she had to move once already, to an office once occupied by Justice William Brennan Jr. Also because of that project, office space is at a premium at the Court. So chances are that when her retirement becomes official, O’Connor will move out of the Court building to the Thurgood Marshall Federal Judiciary Building a few blocks away. The building, opened in 1992, was designed to handle the office needs of up to three retired justices at a time, and both Justices Byron White and Harry Blackmun set up shop there. Back at the Court, if tradition holds, O’Connor’s office space will be offered to current justices, and only if none of them wants to move will it be given to the new junior justice. — Tony Mauro
INSIDE JOBS There will be scores of staffers involved in the upcoming Supreme Court nominee confirmation hearings — including those who work for members both on and off the Senate Judiciary Committee. Only a handful of them, however, will have actually worked as Supreme Court law clerks, a list that includes the Senate Judiciary Committee’s chief counsel, Michael O’Neill, who clerked for Justice Clarence Thomas during the 1996-97 Supreme Court term. There are two former Supreme Court clerks on the Democratic side of the committee: Julie Katzman, who clerked for Breyer during the 1995-96 term, and Susan Davies, who clerked for Justice Anthony Kennedy during the 1994-95 term. Although neither is specifically assigned to the nominations area, each — like most other Judiciary Committee staffers — will work on the nomination once it is announced. And Sen. Edward Kennedy’s (D-Mass.) longtime chief of staff, Carey Parker, clerked for the late Justice Potter Stewart in the 1965-66 term. All of these staffers declined interview requests. Then there are the newest entrants to the group, two 30-year-old former clerks — born eight days apart — on opposite sides of the political spectrum. Both clerked during the 2001-2002 term: Brian Fitzpatrick, who is working nominations for Republican Senate Judiciary Committee member John Cornyn (Texas), and Mirah Horowitz, nominations counsel for Democratic Sen. John Kerry (Mass.). Fitzpatrick clerked for Scalia; Horowitz for Breyer. The year before, they both clerked for separate judges on the U.S. Court of Appeals for the 9th Circuit. And they say their time at the Court could prove helpful to their bosses in the upcoming nominations fight. “You know what the individual justices will be faced with, and you can look back at the record and writings [of the nominee] and know better how they’ll deal with being on the Court,” says Horowitz. And Fitzpatrick says, you realize the importance of intangibles, like personality, and their role in winning over other justices to your point of view. “You understand how a judge approaches a case and how they draft their opinions and what they’re willing to compromise in an effort to gain the majority,” he says. “You learn how important interpersonal skills really are.” — T.R. Goldman
THE CHIEF WEIGHS IN With more and more talk about Senate confirmation hearings for O’Connor’s replacement being scheduled in September, here is none other than Chief Justice William Rehnquist’s dissenting view, expressed 18 years ago. In a July 16, 1987, letter on file in the late Justice Blackmun’s papers at the Library of Congress, Rehnquist told Blackmun he was “disappointed” that nominee Robert Bork’s hearing might not begin until mid-September “because I think that makes it virtually certain that we will operate with an eight-judge Court for a couple of months into the term.” Rehnquist added, “I guess the Court operated that way from the time Abe Fortas resigned until you took your oath in 1971, but we would be far better off with a full complement.” In fact, Blackmun was sworn in on June 9, 1970, 391 days — and two failed nominations — after Fortas resigned in 1969. As for Bork, his hearings to replace Powell Jr. began on Sept. 17, 1987, and it was not until Oct. 23 that the Senate voted, rejecting his nomination by a 58-42 vote. On Feb. 18, 1988, Kennedy was sworn in, 237 days after Powell retired. — Tony Mauro

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