July 1, 2005

If Bush picks a very strong conservative to replace O'Connor, I predict...

... that Justice Kennedy will become a reliable liberal vote. This prediction is based on my belief that there is small group dynamic at work on the Court that tends to produce moderation.

This prediction was inspired by Orin Kerr's observation:
O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.

6 comments:

Gerry said...

Very well could be.

It brings up what would be a very important attribute I would be looking for if I were Bush-- but am in no position to be able to determine about any potential nominee.

Yes, judicial philosophy and temperment are important, as is character.

But I want the best nominee possible, so I would want another characteristic. I would want a judge who is persuasive. I would want a judge who not only would be a reliable vote, but would be the kind of judge who could be convincing to Kennedy, and occasionally to Breyer and occasionally to Souter.

A consensus builder, but one who does so by bringing others his or her direction, rather than by going to them.

Allah said...

I think you're right about Kennedy drifting further left now, Ann, but I don't take your point about small-group dynamics. The Warren Court was the same size and there wasn't much moderation there. Likewise, there was room for moderation after Lochner, but the Court stuck with it for thirty years.

My hunch about Kennedy has more to do with my sense of his personality than the workings of the Court.

Ann Althouse said...

Some of the leftward drift is wanting lawprof love.

SteveR said...

Speaking of lawprof love, how about Ann as the nominee.

1. She's got that constitution thing down.

2. She likes 60s music

3. Like SOC, she's a woman who has been at odds with both sides of the political spectrum.

MaxedOutMama said...

Very interesting, and I suspect you may be correct.

ziemer said...

having a persuasive justice won't help.

no one is ever going to persuade breyer, souter, stevens and ginsburg that the constitution actually means what it says.

if they were inclined to interpret the actual constitution, they would have done so long before now.