July 3, 2005

Quick summary of the current state of the O'Connor replacement rhetoric.

Okay, it didn't take long, looking at news articles and listening to Sunday TV newstalk to see the theme each party has got going on the O'Connor replacement.

DEMOCRATS: O'Connor was a moderate and ought to be replaced by a moderate. We Democrats can't say more than that until we see who the nominee is, at which point we will need plenty of time to do our research. (And you should get the point that this will take forever and include a filibuster if Bush doesn't get the message and choose a moderate.)

REPUBLICANS: Bush will do an exquisitely careful, thoughtful job in choosing a nominee, who, being so carefully, thoughtfully chosen, will deserve the utmost respect, which must be expressed in the form of a quick "up-or-down vote."

Tempted to tune out until we actually hear who the nominee is? Or do we have to worry that the terms of the fight are being importantly "framed" right now? If so, I feel compelled to get into the act, because the blogosphere has got to make a show for itself too.

So let me say four things.

1. I agree that O'Connor was a moderate, within the spectrum of opinion that currently reigns in constitutional interpretation -- reigns in the courts, I hasten to say, not in the academy, of course.

2. It's a contestable point whether a Justice ought to be replaced by someone as much like her (or him) as possible. I think we should notice and fight over whether a different sort of Justice is filling a vacancy, but there's no general principle here. Past Presidents have often taken advantage of vacancies to shift the Court. The President has the power of appointment under the Constitution, and the President has reached his position of power through a democratic process that today very much includes debate about the direction the Supreme Court should take. The real question is whether this Court, now, should be shifted, not whether it is legitimate in the abstract to shift the Court.

3. I don't think the failure to choose a moderate can, in itself, be portrayed as the sort of "extraordinary circumstances" that justify a filibuster under the terms of the recent filibuster compromise. Still, filling a Supreme Court vacancy is very different from putting someone on the Court of Appeals, so it's not enough to say the new nominee is no more conservative than the nominees who were confirmed after the compromise. We need to concern ourselves about the Supreme Court's power to overturn precedents, so what was not "extraordinary" at the appellate court level can become "extraordinary" at the Supreme Court level. But it would be unfair to simply assert that the circumstance of appointing a Supreme Court Justices is in itself "extraordinary."

4. The mere fact that Bush is going to "take this responsibility seriously" -- as he put it -- doesn't mean whatever he does warrants supine deference. If the Republicans chant "up-or-down vote" too much, it's going to feel really oppressive. (I'm already sick of that phrase.) There are a lot of people who worry that they are going to lose rights they believe they are entitled too. Getting all overbearing in response to this genuine fear is going to turn moderates like me against you. And I'm not one of those people insisting on a moderate.


Allah said...

I think the filibuster is a fait accompli no matter who the nominee is (well, maybe not if it's McConnell but that's unlikely), so the Republicans would be foolish to waste their breath by insisting on a floor vote. Accept the fact that the Dems are going to portray whoever's appointed as the Antichrist, line up your 51 Republican Senators for the nuclear option, and proceed forward. It's too bad that it's come to this, but it has.

Matt said...

Four very good points, Ann, in particular, the third one, which, to me, is the rub. There's a big difference between being willing to place Michael McConnell on a Circuit Court (which I would have done, despite some reservations) and being willing to confirm him to serve on SCOTUS (especially given that O'Connor's most direct "swing voting" has been on Establishment Clause issues, where he's most vigorously advocated to a change in the law).

That said, as a liberal, I would find McConnell less objectionable than some of the names bandied about (Luttig, Wilkinson). I still say that the most responsibile thing to do would be for Bush to appoint a judicial conservative whose credentials and character are above reproach but who's not necessarily doctrinaire politically (a Posner or Kozinski), but I think that gets him in some very hot water with portions of his base.

Gerry said...

"We need to concern ourselves about the Supreme Court's power to overturn precedents, so what was not "extraordinary" at the appellate court level can become "extraordinary" at the Supreme Court level. But it would be unfair to simply assert that the circumstance of appointing a Supreme Court Justices is in itself "extraordinary.""

While it will be fun for us to debate what is, and is not, extraordinary, it really is not something we need to do, nor is it something that matters at all if we do.

All that matters is how the individual "Gang of 14" members feel about it. If they think it is extraordinary, then a filibuster can go on.

A few of the gang's decisions are no brainers, such as Byrd's.

In the end, it is going to come down to what McCain, DeWine, Graham, and Warner think.

Interestingly, DeWine and Graham endorsed McCain in 2000-- two of the three US Senators to do so.

So it could be that the whole thing comes down to the impressions of one man. John McCain. Does he think it is an extraordinary circumstance?

And possibly even more important, does he think it helps his Presidential ambitions, or hurts them, for him to say that there are no extraordinary circumstances, versus saying that he can see how his other gangmembers might see there is.

It's McCain's world right now, and we're just living in it.

Allah said...

Gerry -- If McCain torpedoes a hardline conservative nominee, he's finished as a candidate for the GOP in 2008. His candidacy is already on life support thanks to campaign finance and last month's filibuster deal, but if he obstructs on this he has to know that he'll never be forgiven by the Republican base.

Of course, if he's planning to run as an independent (or not planning to run at all), it's a moot point. Indeed, obstruction now might actually help him with a third-party campaign later. But there will be long, long memories and hard, hard feelings. Elephants never forget.

Matt said...

Actually, it may well be instead Arlen Specter's world. In the prior nuclear option vote counts, the count was pretty firm as 50 "No," 49 "Yes," and Specter refusing to commit. Now, the compromise document may affect that vote count by shifting No to Yes for a few people, and I think some Senators who were lukewarm on the idea may be warned away by the hightened scrutiny of a SCOTUS nomination, but between his position in the middle of that vote and as Judiciary chair, Specter's going to be a very interesting fellow to watch.

(All that said, saying anything beyond what's already been said by both sides until we have a nominee is going to be generally unproductive.)

Ann Althouse said...

Gerry: I realize all that, but as indicated in the post, I'm just playing the game of being a participant in the framing phase. I have no delusions about the effect of my statements.

jeremy said...

Even as a liberal, I recognize the absurdity of the "X was a moderate, and so should be replaced by a moderate" argument. Which is not to say I don't want the Democrats to fight for a moderate, and maybe that argument will play better with the masses than it does with me.

Ann Althouse said...

Jeremy: I think there are lots of good arguments for a judicial moderate and for preserving the balance on the Court, and the Democrats are -- at least some of the time -- making this argument. As a moderate myself, I'm fond of calling attention to the nonexistence of problems, the relatively good current state of affairs that we don't appreciate enough. Aren't things good now, with the balance achieved through O'Connor's participation? People aren't willing enough to say yes. And this is an intrinsically conservative attitude (associated with Edmund Burke).

Allah said...

As a moderate myself, I'm fond of calling attention to the nonexistence of problems, the relatively good current state of affairs that we don't appreciate enough. Aren't things good now, with the balance achieved through O'Connor's participation?

How panglossian! Let us cultivate our garden.

Ann Althouse said...

Allah: I didn't say things were the best they could possibly be, just that the status quo tends to be underrated. But people also love it too, so it should be relatively easy to get people to pay attention to the good that exists. Politicians try to make their way by pointing to all the problems that need to be solved -- and never mind that their solutions may make things worse. Ordinary people ought to be suspicious that they are being played. Actually, I think they are.

Gerry said...

"just that the status quo tends to be underrated. ...solutions may make things worse. Ordinary people ought to be suspicious that they are being played."

Good, conservative impusles!

I approve.

Then the question becomes, has the Supreme Court been an instument of change to the status quo, or has it been a protector of a relatively good state of affairs?

Good people can have different perspectives on that question.

Ann Althouse said...

Gerry: I agree. I just think a moderate Justice is most likely to keep the rights we've come to expect at the same level, not cutting back or giving more on things like separation of church and state, abortion, gay rights, and affirmative action. And I think there's a pretty good argument for wanting to do just that.

Allah said...

I didn't say things were the best they could possibly be, just that the status quo tends to be underrated.

I know. I'm teasing (sort of). In fact, I mentioned you in my comment here as the type of centrist voter whose concerns Bush should consider when choosing nominees.

That said, I'm not sure how to distinguish actual problems with the Court's jurisprudence (as I perceive them) from problems which, as you say, don't really exist. For example, I think the Court's increasing willingness to look to foreign law for guidance is potentially a significant problem. O'Connor was a very much in the foreign law camp. Isn't now a good chance to tilt the Court back the other way, or is this a phantom problem which doesn't require a solution?

Ann Althouse said...

Allah: I think you have to put real, substantial people on the Court who are stable and wise enough to trust for thirty years. They can't possibly be neat little doctrine plugs or ideological remedies. If we try for that, we will be left with a mediocrity. Who cares if some ambitious man now says what the people who have the power to grant his ambitions want to hear about the use of foreign law or any other particular matter? When that person is ensconced in his lifetime spot and his ambitious are all fulfilled, what will he do then?

amba said...

Matt, what's your objection to Luttig? The Chicago Tribune article Ann posted here about him last week sounded unimpeachable and unobjectionable. (Maybe Ann will provide the link back there.)

amba said...

Allah, McCain can't be the Republican nominee -- the base wouldn't have it -- and it increasingly looks to me (what do I know?) as if running as an independent could be the smartest thing he could do. A lot of moderate Democrats would go over to him, especially if the alternative was Hillary. So would moderate Republicans. Of course, it depends on who the Dem and Republican candidates turn out to be.

Gerry said...


How about an "Ann" list? You've seen, I am guessing, the various versions of a 'short list' floating about, such as this one.

Do any of the names get your nod of approval?

What names would you like added that you think would possibly have the same sort of appeal to the President (in other words, that he actually would consider nominating)?

What names would you like added that you think he would probably not consider nominating?

I think that would be a great post-- and there are several days at least until we get a nomination.

Gerry said...


I think that McCain most certainly can be the nominee. He does not have to mollify all of the conservative base, just more of it than he did in 2000. In 2000 he was facing a single opponent. In 2004, he will probably be facing several, which could make his task easier still.

And if he comes in on a white horse to save Bush's judicial nominees, do you really think, to throw a name out there, that Dr. James Dobson would rally his troops against him?

I am not a big McCain fan, for a number of reasons (not the least of which is McCain/Feingold). But I think that people who write him off as a definite loser in the nominating process are very much underestimating him.

Gerry said...

Ann, in particular I am interested in hearing your opinion of Edith Brown Clement, if at all possible.

Matt said...

Probably my biggest concern with Luttig is the death penalty stuff. As you probably know, Judge Luttig's father was (tragically) murdered--my concern is that ever since then, he's (I believe) never met any death sentence he didn't like. I'll agree he's a better choice than, say, another Thomas, whose credentials were, shall we say, less tha impressive.

goesh said...

With Rheinquist fading fast, Liberals now know how Custer felt when up the hill at the Little Big Horn came all those angry Indians. Some wag in an ultra-right blog has composed a ditty about Karl in black. This forum has too much class for me to repeat it here.

ziemer said...

if the issue is having balance on the court, and protecting individual rights, then how about a court with 4 justices who would revive lochner and protect my liberty of contract, 4 against economic liberty, and 1 swing vote.

that would be a balanced court, too, don't you think?

Adam said...

That neither Posner nor Kozinski are on any of the short lists suggests that something other than merit and excellence are at stake here. Instead, it's the kind of results-oriented jurisprudence which conservatives decry in liberals. Feh.

Ann Althouse said...

Adam: Posner's way outside of the age criterion. I don't know why Kozinski doesn't get onto these lists. And the fact is Clinton in no way went for especially strong liberals. On the other hand, the record of Republican appointees going way liberal is so pronounced that I can hardly blame them for going into compensation mode.

Gerry: I'd have to do a fair amount of my own research to have much to say, but maybe I'll look at some of her opinios. I don't trust the filtered information at all.

Allah said...

On the other hand, the record of Republican appointees going way liberal is so pronounced that I can hardly blame them for going into compensation mode.

We won't get fooled again!

Actually, we probably will. Gonzales is the new boss; same as the old boss, O'Connor.

Here's where I do the big Daltrey scream.

Allah said...

On the other hand, if we get Luttig or some other hardliner, I'll tip my hat to the new Constitution.

Matt said...

There are two current Republican appointees who one could argue have veered "way left"--Souter and Stevens. Let's leave Stevens beside because there's a decent argument to be made that he hasn't shifted as much as the court has shifted around him. Souter is an example of why both sides have to be careful in choice and criticism (he's also turned into, IMHO, one of the stronger intellects on the Court currently--probably #2 behind Nino). On the other hand, we already have at least two (arguably three) pretty far to the right justices in Scalia and Thomas (and sometimes Rehnquist)--the balance argument doesn't hold water to me.

Adam said...

Posner is 66; could serve 15+ years without a problem, but I understand wanting to keep it under 60. Kozinski is only 54.

Conservatives would argue that Kennedy veered to the right just because of his vote in PP v. Casey, nothing more. Lawrence v Texas was just more gasoline on the fire.

Ann Althouse said...

Adam: Bush isn't looking at anyone over 60s, I've heard. Possibly over 55 is too old too. But I think Posner has other drawbacks for Bush. And re Kennedy: you meant to say left, not right, I assume. And yes, Kennedy, lately, has draw a lot of ire, to the point where there's been (idiotic) talk of impeachment. And Kennedy was the fallback choice after Bork was defeated. A LOT of conservatives think that Bork should have been on the Court all this time.

Matt: The balance question is different from the question whether the conservative feel they've got to protect themselves from the leftward drift problem. With respect to balance, there is reason to think Bush should try to preserve the current situation, so things don't change much. To see a leftward drift problem is to view the current balance as something that ought never have occurred, that resulted from betrayal of the appointing Presidents. In this view, the President now is wholly justified in trying much more forcibly to shift the Court rightward.

Michael said...

Jeremy: "Even as a liberal, I recognize the absurdity of the 'X was a moderate, and so should be replaced by a moderate' argument"

That's not absurd. If you replace a moderate with a conservative, then a bunch of close decisions will go the other way, having a large impact on the Court's future decisions. Precedent will be overturned, etc., whereas if a conservative were replaced by a conservative, none of that happens.

That is, I think, why certain Democrats have been portraying O'Connor as a wonderful moderate. It would hardly make sense for them to say "O'Connor was a right-wing nutjob, and if Bush replaces her with a right-wing nutjob, things will change for the worse." THAT is absurd.

MrBuddwing said...

From the Dept. of the Horribly Obvious:

Of course Democrats want a "moderate" who's "just like Justice O'Connor." They know they can't get a liberal like Justice Brennan or Mashall, so they'll settle for someone just like O'Connor who was, after all, appointed by President Reagan.

CJ said...

This fight won't be about how "moderate" the justice is. This fight will be about how "moderate" the justice is on the issue of abortion. It's a stupid fight in light of where the world is these days, but abortion will dominate the debate. I blog a little more about it here.

ziemer said...

dear matt:

surely, you must be joking.

souter - a strong intellect?

i was working at the people for the american way when he was nominated, and the only reason he wasn't opposed was that he was considered too stupid to be dangerous.

we were correct.

he has proved himself stupid.

as far as dangerous goes, oh dear!

nikita demosthenes said...

Judge Edith Hollan Jones of the U.S. Court of Appeals for the 5th Circuit is the best choice to replace Justice Sandra Day O'Connor on the U.S. Supreme Court.

And I agree with Patterico. See:


We have a GOP President and Senate (and House, for that matter). OF COURSE, Bush should only appoint only conservative jurists to the Supreme Court. Bush was elected by conservatives. Elections have consequences.

Indeed, liberals know that their only hope to achieve their agenda is by non-democratic means - i.e., the courts - since they are no longer a viable national party - as Zell Miller correctly wrote.

For pete's sake, we shouldn't HELP the liberals achieve court-imposed decisions that they would never be able to achieve through the national (or most state) legislatures.

Please, President Bush, appoint the most conservative and well-qualified jurists available. Again, I commend (1) Edith Hollan Jones, (2) John Roberts, (3) J. Michael Luttig, (4) Viet D. Dinh or (5) Miguel Estrada.

You campainged on it. Please do it. Let's end the liberals' only remaining tool: an anti-democratic activist court

And when the Chief Justice's job comes up, please make Antonin Scalia the new Chief Justice. He's earned it, and he's the right man for the job. He knows that being a judge is about interpreting text - not about being a social theorist. There is no "moderate" way to interpret text, as Scalia has appropriately argued time and time again. See, e.g.:


-nikita demosthenes

nikita demosthenes said...

Here are the above referenced links:



the speech by Justice Scalia

ed said...


1. IMHO McCain is setting things up to run as a Democrat in 2008. Perhaps as Hillary's VP. Frankly McCain as an independent is ridiculous. He doesn't have a sufficiently large base to pull it off. And allying himself with the Libertarians would simply be an exercise in futility.

On the other hand McCain could deal for a lot by joining the Democrats. As it is he carries a lot of water for them by playing the role of "the reasonable Republican". And frankly I seriously discount his ability to garner support amongst Republicans. Most Republicans I know despise him.

2. I could live with a mediocre justice who will follow the damn Constitution. I am absolutely opposed to using foreign rulings as justification for domestic rulings. If necessary I'm in favor of impeaching the entire court and starting over if this continues.

Richard said...

Allah -- McCain ruined himself for GOP2008 with the Compromise2005, so I don't think he's concerned with conservatives anymore. He's now free as a jay bird to obstruct all he wants, I suspect he'll do just that.

Matt -- I don't want to live in a world that belongs to Arlen Specter. Please stop depressing people.

Ann -- Bush is a conservative and so should fight for a conservative appointment. To suggest that he should seriously be considering "balanace" on the court is crazy talk. What's the point of running for president if you feel obliged to give your opponents half the pie after you win. Winning elections should mean something.

RiverRat said...

Give me originalism with a touch of stare decisis or death.

The heck with liberal or conservative. We already have partisan legislatures that we've elected. I want my constitutional rights protected; not advocated.

BTW, privacy as in Griswald and Roe is not a constitutional right. It's judicial fiat. Reverse Roe and pass a national reproductive rights act. I'll lobby my representatives to vote for it.

The Civil Rights Act seems to have worked fairly well with judicial fiat or a Constitutional Amendment. Hmmmm!

Mike Liveright said...

As far as I can see the only question is whether the group of 14 decide to over-ride the Filibuster.

1) Bush will put up a "Strict Constructionist"

2) There will be a lot of Yammering, all predictable, given the (R) or (D) of the yammerer.

3) The nominee will be voted out of the committee on a partisan vote.

4) There will be a Filibuster, after the same predictable yammering, and then either:

. 5) The filibuster will be broken and the nominee is approved,

. 6) Or it holds and then after a sufficient time there is a recess and the nominee is recess appointed until the next Senate


So let's sit back and see the show, given the outcome is determined!!!

Doug said...

Mike, I think you're right on the money with 1 through 5. The only reason I don't see number 6 happening is because I think if the Dems filibuster for any length of time, the Republicans will finally trigger the "nuclear option." If McCain is at all interested in running for president, even he'll sign on, saying that a SCOTUS nominee is "just too important."

And in response to ed, there's absolutely no way McCain would, or could, run as a Democrat. The fact that he's pro-life alone is enough to put the Democratic nomination out of reach. Plus, he's on the record calling Clinton a liar (back in the 2000 primaries, he said W "twists the truth like Clinton"). That's just not done if you're a Democrat.

McCain does have a shot at the Republican nod, if the only other real names in the race are Pataki and/or Giuliani. Compared to those guys, he DOES look conservative.

betsybounds said...

Ms. Althouse,

You're already sick of the term "up-or-down vote?" ALREADY?? I presume you've been sick of it ever since Mr. Clinton used it over and over and over again during his administration. I used to wonder why Republicans didn't call for such more often, since Clinton used it so many times to make himself sound reasonable about contentious matters.

Adam said...

The problem for Dems is that this is a vacancy that has to be filled; you can't just filibuster and keep the seat open on a 4-4 bench.

Ann: thanks for catching that obvious mistake.

On Dinh, three easy knocks: age (just 37); the fact that he has professed before the Senate Judiciary Committee that he had no idea that the Federalist Society had any political agenda; and that he's currently representing alleging terrorist financiers before an MDL in the SDNY in 9/11 related litigation.

tarpon said...

What would Clinton do, and what would the Democrats say about. All you need to know.

Moneyrunner said...


Do you see the problem here? We are discussing this issue as if the Supremes were a “Super Legislature” whose personal opinions were critical in creating our laws.

I am truly baffled that honest partisans of whatever persuasion are looking for the establishment – or the maintenance – of such a body of unelected people with lifetime appointments who can sit as a permanent constitutional convention.

Please give us some justices who have a more humble opinion of themselves and feel bound by the constitution as written and amended by the people.

ziemer said...

the democrats would never want mccain to become a democrat. what they want is what they have -- a republican lapdog to pat on the head so they can say, "look how a good republican acts."

Cousin Don said...

I believe what Nikita Demosthenes said elections have consequences is very true, and there is definitely no obligation for Bush to replace a moderate with a moderate.

This makes McCain's cross aisle faction extremely important.

Personally, I think McCain is still smarting about South Carolina in the 2000 primaries and I believe that he doesn't give a hoot about the far right.

I think McCain believes the Republicans are going to be looking at the choice between a true conservative candidate or a Hillary Clinton Presidency, and I think he believes the threat of President Hillary is enough to secure him the Republican Nomination.

David Blue said...

"If the Republicans chant "up-or-down vote" too much, it's going to feel really oppressive. (I'm already sick of that phrase.)"

Fair enough.

Pro-lifers are going to need some chants in the coming struggle. What do you want us to say?

M. Simon said...

Questions for the nominee:

What is Interstate Commerce?

What is public use (the Vth)

What is the meaning of IXth?

In our system what is limited? Government or the rights of citizens?

Scalia couldn't pass the IXth test.

Thomas for Chief Justice.

M. Simon said...


Privacy is covered in Amdmt IX.

Rights in our system are not enumerated.

You might like to read what Prof. Reynolds has to say about Bork and Roe. He thought it was correctly decided if poorly explained.

h said...

They can't filibuster a guy whose being vilified in an organized campaign by conservative groups, can they? How can the Dems in the gang of 14 say with a straight face that such a nominee is an "extraordinary circumstance"?That's why it says here: Gonzales is the nominee, Gonzales is confirmed with a minimum of fuss.

Matt said...

I agree that during his confirmation (I was quite young at the time) substantial and justified doubts were raised about Souter's competency. However, I think he's grown into the bench quite well. In contrast, Thomas began as intellectually lazy and has continued to be so on the bench.

Ann Althouse said...

Matt: Thomas is "intellectually lazy"? Do you read his opinions on a regular basis or are you picking up your opinion second-hand. When the book is written on how our culture treated Clarence Thomas, we will look back with shame.

And whoever wrote about Souter not being that smart: please! If anything, he's too smart.

Beldar said...

Prof. Althouse commented, "Aren't things good now, with the balance achieved through O'Connor's participation?"

I respectfully dissent. I don't think the Supreme Court has done a particularly good job for the last couple of decades.

"Moderates" and "centrists" are what produce the fractured cases that split off into three to six separate opinions, none commanding a majority, or else produce majority opinions that have been watered down to the point that they're splitting hairs and adding more "balancing tests." That's very, very unhelpful for the lower courts who must deal with the real world on a daily basis. "How do Justices O'Connor and Kennedy feel this week?" ought not be the lodestone for Supreme Court precedent.

A muddy, unpredictable Court radiates near-randomness that ultimately erodes public understanding of (and respect for) all courts and for the law. A vacillating Court also makes it more difficult for those with a coherent point of view to educate and rally voter support to accomplish the slow (but nonetheless important) changes that are the difference between the Court being the least democratic branch of government and an entirely undemocratic branch of government.

Prof. Althouse further commented, "I just think a moderate Justice is most likely to keep the rights we've come to expect at the same level, not cutting back or giving more on things like separation of church and state, abortion, gay rights, and affirmative action."

But how do you actually know, Professor, what those "rights" are? To the extent they can be discerned (and sometimes they can't -- e.g., Vieth -- because there's no majority opinion), they seem to change almost from term to term. It's been a while since Justice O'Connor's opinion for the Court in Grutter for instance; so tell me, ma'am, has Michigan Law School gone far enough down her 20-year path for the racial preferences that were constitutional as of the moment that case was decided to have become (as promised, mysteriously) unconstitutional yet? And was that decision -- on affirmative action, a "right we've come to expect" -- genuinely helpful to you and your colleagues at Wisconsin? Sure, you could compare your program to Michigan's as of the moment Grutter was decided and come up with a rough thumbs-up or -down. But does the Constitution move at the same 20-year pace in Wisconsin that it does in Michigan?

And how many more months or years will it be before Justice Kennedy moseys the rest of the way on down the line from "states can outlaw same-sex sodomy" all the way to "states can't outlaw gay marriage"? I don't recall the Constitution being amended in that regard, but I know that he and the forces of substantive due process are moving in that direction; so on what day, month, and year will the Constitution get there?

Bless their consistently liberal and bleeding hearts, I know what Justices Stevens and Ginsburg stand for. If a presidential candidate says, "I want more Ginsburgs" or "I want more Scalias," the public can figure that out, vote accordingly, and play its indirect but essential role in affecting the Court. Dubya certainly campaigned on the premise that he was going to choose someone like Scalia or Thomas every chance he got, and for a certain nontrivial number of people (including me), that was an important reason to vote for him. I think that's a good thing.

I'd rather have the public's input come through the constitutionally devised nomination and consent process than through the Court trying to read the latest USA Today opinion polls. "Moderate" and "centrist" judges are the absolute monarchs of our times.

Ann Althouse said...

Beldar: Thanks for the long comment, which says a lot of things that I think myself, on alternate days, when I'm not appreciating the balance. Yes, it would be nice to have clearer, crisper law, but that benefit will bring its own set of problems. We're used to the problems we have. Shake things up and see how you like the new problems: you may be sorry.

Matt said...

I read Thomas' opinions, and while they're written with undeniable passion, in my view, they fail to confront contrary precedent and distinguish or explain why they must be overruled. Contrast this, with say, Scalia's opinion in Raich, which legitimately wrestles with how Lopez and Morrison affect the case rather than the majority, which perfunctorily says that they're wrong.

Ann Althouse said...

Yeah, Matt, that's called having a consistent, principled commitment to original intent interpretation.

Matt said...

See, that, to me, is not the function of judging. I believe in stare decisis. (I also disagree both with pure originalism as a philosophy and what Justice Thomas believes the "originalist" answer to the question is in this case, though I haven't done massive research on the issue--normally "originalism" can be used to support whatever end is desired.)

While I disagree with Lopez and Morrison, I think they either have to be wrestled with in constitutional interpretation or explicitly overruled (with five votes) rather than simply ignored--that's why Scalia's opinion is better than the majority's in Raich. That's my expectation of any judge--that they show some deference to precedent (though that deference obviously need not be absolute).

Ann Althouse said...

Matt: So you disagree with his theory of interpretation. That does NOT make it acceptable to call him "intellectually lazy." Giving more weight to precedent isn't more work -- or "wrestling" -- as you like to call it, and even if it were, the best theory of interpretation isn't shown by what takes more work!

ed said...


1. Hillary needs a highly visible and well known military credential. In 2004 it was supposed to be Wesley Clark, but he imploded in a rather public way. But McCain has it all. He's largely acceptable to the Democrats. He's got a very public military record. He's pro-life, which would be a bonus for having him as a VP.

2. The whole timeline of the "Gang of 14" was oriented towards delaying the "nuclear option" until a Supreme retired. This way it wouldn't be resolved prior to this point. If it had been resolved already, then the rancor and struggle over this Supreme nomination wouldn't be as significant. But since the "nuclear option" hasn't been resolved it makes this struggle even more difficult.

McCain was the instigator of that agreement so you have to ask why did he do it? We all knew that a Supreme was going to retire, the only question was who and when.

McCain obviously planned this entire fiasco. It is his bargaining chip for power in the Democratic party because he recognizes that he doesn't have a chance any longer since he has severely alienated the far right in the GOP.

So let me ask you. If you were a Democrat would you prefer to resolve the filibuster issue with a circuit court judge, and have the result applied irregardless to a Supreme? Or would you rather duke it out over a Supreme? Which would make it easier to fire up your base?

3. No offense to anyone but I was appalled by the Supreme's decision on the Michigan case. So here's how it is. Since African-Americans get to discriminate against you white people for your crimes against them, us Asians should be allowed the same thing against all of you.

After all the Chinese Exclusion Act prevented asians from becoming citizens until well after 1945. The litany of discrimination, violence and outright robbery is well documented.

So bow before my victimhood you white bastards!

And if you can't detect the sarcasm in the above, you need a beer. Frankly I lost all respect for the Court with that decision. It's a basic fact of life that asians are forced to adhere to much higher standards in order to compete, due to the quota system.

This is not in any way, shape or form "equality". And quite frankly O'Connor is an ass for having tried to split that hair.

Cousin said...

Hi Ann -- first time poster, longtime follower (and think Madison is the second prettiest place in the Midwest (after Winona, MN).

Pardon my cynicism, but don't the Dems really want a scenario where Bush nominates another Scalia/Thomas type, the Dems threaten to block it, Frist pulls the nuclear option, and then a stream of conservative decisions comes down (next term and/or after Rhenquist resigns)? "Allah" should be careful what he wishes for: say Roe v. Wade --was-- overturned, wouldn't this be an election windfall to the Democrats? They could then gerrymander their way to control Congress. By the way, I'm a Democrat and I've seen far too many state elections where Dem incumbants practiced similar Machiavelian tactics (witness Mayor Daley, a closet Republican who worked with Danny Hassert to keep Patrick Fitzgerald from U.S. Attorney and supported the former GOP governor George Ryan).

Finally, I think Thomas gets off wayyyy too easy. First, the idea that a 1-year judge/head of a minor govt. agency was the "most qualified person for the Supreme Court" was shameful. Second, it's hard to judge how rigourous he is intellectually because you can't judge that from opinions. I've seen him on C-Span and he's no Scalia. Personally I think any judge who signed-on that Bush v. Gore opinion with the footnote that the decision was not to be used as precedent for anything in the future (convenient when you're doing a 180 degree turnaround on the scope of the Equal Protection Clause) has some explaining to do on the rigourous thing! But I digress -- happy 4th everyone!

michael a litscher said...

Ann Althouse said... Adam: Posner's way outside of the age criterion. I don't know why Kozinski doesn't get onto these lists. And the fact is Clinton in no way went for especially strong liberals.

I guess that depends on your definition of "strong liberal," but Ruth Bader Ginsburg is no centrist.

michael a litscher said...

My previous post linked to an article which referenced: "Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law," co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974.

Ann Althouse said...

Michael: You're linking to National Review. The liberals I heard talk about her called her conservative. There were many judges out there at the time that real, hardcore liberals loved much more.

Matt said...

Trust me, there are far harder core liberals out there--for instance, over on Daily Kos, I've seen people saying that the Controlled Substances Act (in its entirety) is unconstitutional not because of the commerce clause issues raised in Raich, but because it violates the right to personal privacy. Or, hell, look at some of the hardcore CLS types--that's "ultra-liberal." Ruth Bader Ginsberg is undoubtedly left of center by her background, but she's no wild-eyed liberal (not even on the sex discrimination issues that are her signature).

Patterico said...

Shake things up and see how you like the new problems: you may be sorry.

But if we are ruling ourselves, rather than being ruled by judges, we can try to fix the new problems with new laws.

Bruce Hayden said...

Who is centrist and who is extreme is really all about where you are yourself. Being a bit right of center, I consider O'Connor fairly centrist, but a little to the left. Her Takings dissent did a lot to redeem her in my view. But of course, that means that in my view, Ginsburg is out there quite a way on the left. Nothing centrist to me in any of her decisions - rather knee jerk liberal to the core.

But as I said above, it is all relative.

michael a litscher said...

Michael: You're linking to National Review.

I also linked to Ginsburg's own work, which was the basis for the National Review article.

So sayeth former general counsel of the American Civil Liberties Union, Justice Ginsburg, in her own words:

"Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions."

A statutory restriction on political rights of bigamists "is of questionable constitutionality since it appears to encroach impermissibly upon private relationships."

"Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal. . . . If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected."

"The Boy Scouts and the Girl Scouts, while ostensibly providing 'separate but equal' benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes."

"Replacing 'Mother's Day' and 'Father's Day' with a 'Parents' Day' should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles."

Then there's the whole lowering the age of consent to 12.

Not very "moderate" to me. But like I said, I guess that depends on your definition of "strong liberal."

For some, a "strong liberal" would advocate lowering the age of consent to 6, or eliminate it altogether, whereas a far-right-wing out-of-the-mainstream extremist nazi zealot would advocate 18 as the age of consent. All depends on your perspective of where the middle is, I guess.

Oh, and for the record, she was confirmed (96-3) in six weeks.

Brandon said...

Why would John McCain want to be anyone's running mate in 2008? He will be 72 that year. If the ticket is successful, he would then be precluded from running for president until 2016, when he will be 80. If it is unsuccessful (especially if he switches parties) he will probably be blamed for the loss, and his political career will be over. Either way, at his age, running for VP is a way of ending his career with a whimper rather than a bang, it seems to me.

Adam said...

Regardless of her personal views, Justice Ginsburg certainly has not been a "strong liberal" as a judge. Compared to Brennan and Marshall, today's "liberals" are so mild -- no one's routinely dissenting in death penalty cases because they believe the punishment is unconstitutional, for instance.

Chris L from MI said...

Aren't Judges supposed to be free of partisan politics? We are talking about someone that will serve for twenty or thirty years, whose positions on current issues will no longer be relevant in the near future. It seems to me a Supreme should be chosen not because of a position on the political spectrum but because they have a proven track record of fair and legally sound judgements. That's why their appointed for a lifetime, so that they can make judgements on the merits of the case without any concern of political backlash.

Or I just being too idealistic and unreasonable to expect the Founder's intent to be honored?

David Blue said...

Chris from MI: "We are talking about someone that will serve for twenty or thirty years, whose positions on current issues will no longer be relevant in the near future."

Roe has already stood for thirty years. It will be a work of many generations to get rid of it.

It won't go just because five anti-Roe have been appointed (and the proper case brought forward). Leftward drift is powerful, and much of what each generation does will be washed away.

When the final test comes, even if it seems that there are still five good judges left, it will be like turning over a face down "treachery" card for each judge, and there will be losses. So you don't need any five-four, you need seven-two-at least, before the final round of defections from the great project.

The longer the fight goes, the harder it gets, in law because the longer a decision stands the more legitimate it is, and in politics because rights (however deadly) once conceded cannot be withdrawn. Each generation has to be stronger than the one before it, to stand up under the crushing, growing weight of the judicial imposition.

To sustain focus, and winning democratic coalitions, for decade after decade, is a huge ask. It may exceed the possible. But anything less than that - or an alteration to the constitution - is futile.

So it's the single issue that stays important, decade after decade. On the other hand, the integrity of judges is ephemeral. Again and again it vanishes, like HELP! written on a beach by some child's artless hand, washed away over and over by the pitiless tide.

the pooka said...

Wow, that was sort of creepy...

On a lighter note, I encourage folks to check out O'Connor Replacement Futures Market. Good fun, that.