George Will looks at the Supreme Court’s recent decision in the Ceballos case. There, by a 5-4 margin, the Court held that while the government cannot condition public employment on a basis that infringes upon the the employee’s constitutionally protected interest in freedom of expression, government employees are not constitutionally exempt from discipline related to speech made in the conduct of their official duties. The decision, in Will’s words, avoids “pulling the courts even more deeply than they already are into supervising American life.” Both Bush II appointees, John Roberts and Samuel Alito, were in the majority.
Notwithstanding its false start with Harriet Miers, the administration deserves great credit for placing these two on the Court. It also deserves credit for many of its court of appeals selections. But at least one court of appeals, the Fourth Circuit, has been ill-served by this administration. Three current judges on that court were nominated by Bush. Only one, Dennis Shedd, can be considered a restrained judicial conservative. Of the other two, Roger Gregory originally was nominated by President Clinton. Bush re-nominated him in what proved to be a misguided attempt to generate good-will and cooperation from Democrats. Next, Bush nominated my former EEOC colleague Allyson Duncan, along with Claude Allen, apparently as some sort of moderate/conservative package deal. The Democrats helped confirm the moderate and blocked the conservative. To the administration’s embarrassment, Duncan arguably has been less conservative and restrained than Gregory, the Clinton man.
Meanwhile two solid nominees, Jim Haynes and Terrence Boyle, continue to languish, the former because of seemingly weak charges of unethical behavior and the latter because of the tag-team of Lindsey Graham (the Arlen Specter of the south) and John McCain. And judicial super-star Michael Luttig has stepped down.
The administration needs to make a renewed push on behalf of Boyle and Haynes. And it needs promptly to nominate a star with strong conservative credentials to replace Judge Luttig.