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.
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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.
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.)
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.
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.
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: 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: 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: 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?
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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
http://patterico.com/2005/07/02/3272/i-need-the-angry-clam/
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.:
http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm
-nikita demosthenes
Here are the above referenced links:
Patterico
and
the speech by Justice Scalia
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!!!
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.
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.
What would Clinton do, and what would the Democrats say about. All you need to know.
Ann,
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.
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.
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.
RiverRat,
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.
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.
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: 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.
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.
Yeah, Matt, that's called having a consistent, principled commitment to original intent interpretation.
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).
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!
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: 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.
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).
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.
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.
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?
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