Alito would replace retiring centrist Sandra Day O'Connor, the decisive justice on numerous 5 to 4 rulings, further raising the stakes for the Judiciary Committee hearings, which will begin Monday. By contrast, Roberts had a shorter paper trail -- three years as an appellate judge, compared with Alito's 15 -- and he succeeded a fellow conservative, the late William H. Rehnquist, thereby having modest impact on the court's balance.John:
This is just illogical. If it had been the opposite—that is, if Roberts had replaced O'Connor and if Alito were the nominee to replace Rehnquist—the balance of the court would have been the same (aside from the Chief Justice's power to sometimes choose who writes opinions, and aside from the transitional months when only one of the Justices has been replaced). As long as two Justices are leaving the court at about the same time, it's superstitious to focus on who is replacing whom.True, though I can certainly see why Democrats who are gearing up to do the questioning next week will emphasize that it is O'Connor that Alito is replacing. The WaPo seems to be channeling a little bit too much of their spin. On the other hand, I do think there is some effect on the new Justice's mind. Would David Souter have turned out exactly the same if he had been replacing, say, Lewis Powell, instead of William Brennan? It may very well affect the new Justice to know he is taking O'Connor's seat, and not just because he's susceptible to a superstition.
What he thinks about it is a different matter. He may think, Justice O'Connor played a role in keeping the Court on an even keel, so I need to think carefully about whether I have a special responsibility for preserving the balance. He may think, by balancing things in the middle, she created an opportunity for me to come on the Court and make a strong contribution to the development of the law, and I have an obligation to work with the other Justices to crystallize doctrine that has been unclear for too long.
Don't you want to know? But you can't. If asked, Alito will say that he deeply respects Sandra Day O'Connor and that he can only hope to live up to her great example of profound devotion to the rule of law, which requires him to study the texts and the arguments and to call them as he sees them.