July 6, 2005

"The only way to stop 'borking' as a political strategy is to defy and defeat it."

The Wall Street Journal makes the argument -- and makes it well -- that Bush should appoint a strong conservative to replace Justice O'Connor. In my view, these are especially strong points:

1. Bush ran for office saying he would choose someone like Justices Scalia and Thomas.

2. There has been a strong tendency in recent decades for moderate conservatives to move to a liberal position on the Court, so conservatives have already been deprived of their share of the sort of justices they favor and are quite reasonable to guard against this with a new appointment.

3. Re Gonzales: "as former White House counsel and now head of the Justice Department, [he] would have to recuse himself from most if not all of the war-on-terror cases." The threat of 4-4 decisions alone is reason to oppose him. (Experts on recusal: is this true?)

4. "Borking" is wrong and should be confronted.


goesh said...

You know, my best guesstimate is that 80% of all Americans don't even know how many Supreme Court Justices there are, so it really doesn't matter. We all know Bush is Conservative, so... Even though I'm not an attorney, I'm trying to sound like Jerry Spence here. Is it working? I do so admire his buckskin coat.

Anonymous said...

I'd guess it's more like 30%-- the Supreme Court has a pretty high profile these days. If you really want to trip people up, and aren't above stooping to a trick question, ask 'em how many Supreme Court justices the Constitution says there should be.

goesh said...

I'm so embarassed not to know the answer to that question, Paul. I do know that qualifications are not specified. Oh God! Couldn't George tell Liberals he is considering Karl Rove? Couldn't he seriously push the envelope just once in his life!?

Skewed Left said...


I think I know the answer to that - it doesn't. Is the size of the Supreme Court anywhere in codified law?

Bruce Hayden said...

I suspect that our esteemed hostess will correct me here, but the size of the Supreme Court is not set in the Constitution, but is by statute, as are the numbers of appeals and district court judgeships.

FDR, facing a hostile Supreme Court when attempting to implement the New Deal, attempted to "pack the court", i.e. increasing its size enough that he could keep his legislation from being overturned. The outcry was so great, that he had to back off that - but the Court came around pretty quickly after that to his way of thinking.

Sloanasaurus said...

I am looking forward to the rhetoric. The most potent I imagine will be Dem claims that Bush's nominee will send young women to their graves...forced to get "back-ally" abortions. Chuck Schumer will glide onto the Committee floor with a coat hanger in one hand and a Syringe in the other urging the American People to see Vera Drake and mobilize against the evil Bush appointee.

The mainstream media will go along, failing to cite Schumer's error that overturning Roe does not actually result in the ban of abortion.

Mark Kaplan said...

When it comes right down to it the Democrats will not accept any nominee who they believe is opposed to abortion. That will be their definition of whether a nominee is "extreme" or not. They will then wrap the package in any other issues they can find. Nevertheless, their litmus test has been and will continue to be the issue of abortion.

Skewed Left said...

If the size of the Supreme Court is established in statute, what would prevent Congress from removing justices by eliminating positions on the court?

In all the talk of "impeaching" judges a few weeks back, I'd imagine that's the only way to replace a justice, but if you wanted to get rid of someone (say, to change the balance), why not change the statute to 7 justices instead of 9, effective immediately?

Troy said...

Outlier... You are heartless. How can you even propose reducing the size of Nancy Pelosi's God?

What's next -- reducing the Trinity to 2? Cause that's what that's almost like you know. Nancy said it -- as she looked into the headlights.

Beldar said...

The size of the Supreme Court is not set by the Constitution, but by the then-current version of the Judiciary Act; it's varied over time, but not since being set at nine in the late 1860s if I recall correctly. There's a serious question about whether Congress could effectively remove sitting Justices by reducing the size of the Court without violating their constitutional guarantee of life tenure; there's no precedent on point, but some academics have recently suggested that Congress could nevertheless do so as part of a pseudo-term limits scheme.

Gonzales would indeed likely have to recuse himself from a large number of cases for some time; Ed Whelan has made this point persuasively (e.g., here) over on NRO's Bench Memos blog. The short-term effect could be substantial and quite possibly outcome-determinative for some important pending or soon-to-be-pending cases. But Gonzales is a relatively young man, and over the course of a Supreme Court career this downside would become fairly insignificant (as in the case of both C.J. Rehnquist and former Att'y General/Justice Tom C. Clark).

Finn Alexander Kristiansen said...


I tend to agree, that much of this reduces down to the issue of abortion, with the Democrats wanting to screen out all those against abortion and the Republicans attempting to find candidates whose written history and verbal dexterity allow them to avoid being pinned down. A kind of high stakes pin the fetus on the donkey.

What Bush ought to do is submit a list of about 30 highly qualified candidates, have them all simultaneously admit they are against abortion, and then force the Democrats to go through the exercise of proving how all 30 candidates are in fact uniquely inappropriate.

Kathleen B. said...

"force the Democrats to go through the exercise of proving how all 30 candidates are in fact uniquely inappropriate."

the fact that all 30 would be opposed to abortion rights makes them de facto inappropriate. no exercise is needed.

flame away.

Too Many Jims said...

A few quotes from the comments:

"When it comes right down to it the Democrats will not accept any nominee who they believe is opposed to abortion." This may well be true, but isn't the opposite also true, Republicans will not accept any nominee who they believe is in favor of Roe.

"overturning Roe does not actually result in the ban of abortion." Legally true, but how long will it be after Roe is overturned before a bill is passed outlawing abortion.

Ann Althouse said...

Don't be so sure Republican politicians want Roe gone. What attracts votes better than railing against Roe?

Abc said...

First, on what grounds could Congress pass a law outlawing abortion? Wouldn't it immediately be struck down on federalism grounds, a la VAWA (since presumably, interstate commerce would be the justification)?

Second, yeah, maybe it will be banned in, say, Kansas, Missouri, and Tennessee. Certainly not banned in NY, NJ, MD, CT, MA, CA, OR, WA, IL, MI, etc.

I am not saying that I favor Roe being overturned (though to this non-lawyer, the decision seems to be on pretty flimsy ground). But I am just presenting the realities of the issue.

Finn Alexander Kristiansen said...


Yea Republicans making appointments always make sure the Supreme Court judges they name are avidly pro-life...uhm, except Souter and Kennedy and O'Connor and Stevens, but all the rest, uhm absolutely.

Also, the "nay" count in confirmation votes tends to be highest for candidates who would seem against abortion, somewhat suggestive of the fact that Dems can and do squeak loudest before, during and after any particular fact.

There is no equivalency of temperament in the abortion litmus test, as Republicans tend to be quieter, and more accepting of results adverse to their cause.


Yay Kathleen for that nuanced response that renders any such debates about Court appointments solved and resolved. You would make a great almighty god and a horrible judge (or jury member for that matter).

Ann Althouse said...

Yevgeny: Abortion providers are clearly engaged in an economic activity that has a substantial effect on interstate commerce. Only if you were to overturn precedent about go back to a pre-1937 interpretation of the Commerce Clause would your sense of the scope of that power be right.

Kathleen B. said...

Yay Finn, thanks for an equally informative contribution to the discussion.
luckily for me I am neither God, nor Judge nor Jury. Just a woman who cares about her body and person, and her quality of life.

Abc said...

Prof. Althouse:

Yes, I see your point. On the other hand, are there the votes in Congress from even the pro-life Republicans to have a federal ban on abortion? My sense is that there at least 5 pro-choice Republican Senators (Snowe, Collins, Specter, Warner, and Chafee). I would at the very least assume that there would be a fillibuster of any bill that would seek to outlaw abortion nationwide. There is no way that the Republicans could elect 60 pro-life candidates (which in practice would probably mean 65 Republicans) to get cloture.

Also as a separate question... Now that you mention the pre-1937 SC precedent, do you think that it would be prudent then for libertarians to support pro-life judges on the grounds that then, when the SC overturns Roe, Democrats will seek to return to pre-1937 precedent on interstate commerce (since abortion seems to them to be of paramount importance... or at least of paramount importance to a significant portion of their constituency)? They could form an alliance with the radically pro-choice wing of the Democratic Party and lead to Democrats appointing pro-choice libertarians who would like to see Wickard overturned to the SC. Then, libertarians would get the interpretation of the ICC they want as well as legalized abortion in most parts of the country. Do you think that this would work?

Ann Althouse said...

Yevgeny: If Roe is overturned, I'll bet some members of Congress will push for a federal statute creating a right to abortion, preempting state criminalization. Many others will be all about "leaving it to the states," and only some pro-lifers will want to criminalize.

Too much else is at stake re the pre-1937 interpretation: no way the Dems would want that. Their goal would be easily achieved with a federal statutory right to abortion. (And they'd need the modern interpretation of the commerce clause to uphold that law.)