Specter also said there had been some speculation that O'Connor might be willing to remain on the court if she has a chance to replace Rehnquist as chief justice.
"There had been a fair amount of talk about that possibility. And in her letter of resignation, she conditioned it on the confirmation of a successor. So there's some flexibility. Who knows? Some speculation is that she might reconsider if she were named chief justice," Specter said.
"I think it would be very tempting if the president said, 'Justice O`Connor, you could help the country now.' She has received so much adulation that a confirmation proceeding would be more like a coronation, and she might be willing to stay on for a year or so."
Why on earth would Bush want to do that? He's been itching to see her leave, one would think. The adulation you receive on retiring can't be taken seriously and understood as a wish to keep you around, as you would learn soon enough if, on hearing such praise, you offered to stay on. And what's with the "help the country" bit? As if we were in some special terrible period of instability. The fact is the stability on the Court has gone on far too long, and it's time for the political sphere to express itself with a new appointment.
UPDATE: I'm further amused, seeing that the NYT takes the zany suggestion seriously. The ideation around O'Connor these days is just goofy. Well, not really. It's grimly manipulative spinning -- as previously noted here and here.
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23 comments:
Brendan: I'll bet I've defended more of the moderate decisions than most bloggers and most lawprofs. Of course, the Dems don't really like the middle position. It's just the most they can hope for. But there is a problem with the same nine people hanging on as long as they have. Prolonging the current set up doesn't help mitigate the political craziness that will occur when someone steps down. It only makes it worse.
Separate question: You don't think abortion affects men?
Ann... I agree
The Court is to "stability" as Arlen Spector is to "instability".
It's Cream of Wheat and bib time for Sen Spector.
Seems to me that Spector, Leahy and the rest of the "Senate Leadership" need to get outside the Beltway. They like the status quo too much.
We must remember in Spector's world, any time members of the Senate are asked to make difficult and politically contentious decisions that constitutes a "crisis". God forbid they should actually be expected to make difficult decisions. So they readily look for the easy way out of making the decisions.
Allah: "What happened to viva la status quo?"
The status quo in life is mortality, even for Supreme Court justices. They can turn over every couple of years or 11 years can go by with no turnover, but eventually the seats must turn over. The appeal of the status quo lies in predictability, regularity, and moderation. I fail to see how delaying turnover and letting the pressure in the political sphere build and build is doing anything other than making the disruption of the next turnover more severe.
Brendan: I don't believe in the "spoils system" in the sense of appointing friends and political cronies. Supreme Court appointees must me the highest meritocratic standards. But within the sizable group of persons with enough merit, the President -- who is elected and whom the Constitution gives appointment power -- needs to pick. I don't see how it accords with democracy and the Constitution to try to prevent him from exercising that power.
As to abortion: I think it affects everyone in the sense that no man (or woman) is an island (even though I support the individual right of the woman, because it is her body).
Abortion affects the unborn as well...lest we forget.
Brendan: I think it would be very disruptive, after 30 years, to take away a right women have been told over and over is one of our rights. It's a different question from whether it would have been better never to have found the right. I would be interested to observe how the political system would work it through, but the process of doing that would change American politics in all sorts of extravagant, unpredictable ways. (Of course, abortion is already distorting our politics.) I find it hard to picture the Court having the nerve to unleash all of that.
Let me add: I don't believe Bush will be able to appoint a Court that will overturn Roe v. Wade. But if that does happen, the repercussions will be amazing, and I think it will damage the Republican party terribly and catapult the Democrats into power. And the right will be restored. And all sorts of other un-conservative things will happen.
Ann Althouse: I don't believe Bush will be able to appoint a Court that will overturn Roe v. Wade.
Casey was 5-4 and Bush is about to replace O'Connor (one of the 5). Why do you believe her replacement will be pro-Roe?
Michael,
White (one of the 4 Casey dissenters) was replaced by Ginsberg.
You can't just nose count like that. When the brink is reached, they will turn back. Someone will reposition. If somehow it happens, it will be incredibly disruptive. People who are eager to see it -- other than the pure right-to-lifers -- will be sorry if they get what they want.
"...and I think it will damage the Republican party terribly and catapult the Democrats into power. And the right will be restored. And all sorts of other un-conservative things will happen..."
I don't get this wild-eyed comment? Is it a threat? It seems so unlike you.
If Roe goes down, abortion will still be legal in 40+ states immediatly, and will be legal in the remaining states within a year or two.
Sloanasaurus: It's a prediction.
Specter's comments are probably more reflective of wishful thinking on his part than any realistic prospects of O'Connor being nominated to be Chief Justice. Apart from the ideological storm that would be raised by an O'Connor nomination, her personal situation hasn't changed: Her husband still suffers from Alzheimer's Disease.
I still think Bush will nominate two solid conservative CA judges.
Changing the ideology of the court is the most important issue for conservatives. Bush promised to appoint Thomas' and Scalias to the court in the Campaign. Thus, perhaps the Republican party is doomed, because either the Republicans go out of power in a backlash (as Althouse predicts) or Republicans lose power if Bush appoints a moderate (conservatives bolt). Maybe an anti-Roe court would be a great thing for Democrats (politically at least).
Sloanasaurus: I agree that Bush made that promise and that he should keep it. I don't think, however, that the result will be the overturning of Roe v. Wade.
Alceste, thanks for the info. That means Prof. Althouse is very likely right about Bush not being "able to appoint a Court that will overturn Roe v. Wade."
I doubt Stevens or Ginsberg will give Bush the opportunity to nominate their replacements.
Michael: Consider that Stevens is 85. They can't always control when they leave. I think Roe will never be overruled, even if more appointments can be had. I think someone will change positions and preserve the precedent. I think Bush and his advisors know it will be disaster for the Rep. party if the Court ever takes away abortion rights.
But such arguments assume that the means of Roe's reversal will be by saying that the Constitution doesn't protect the woman's choice, rather than, as I fear, getting five justices to say that the 14th Amendment (and 5th Amdt DP) *do* apply to the unborn. In that case, all hell does break loose.
Adam: That's not going to happen. The hell-breaking-loose is so obvious that it will not be unleased.
If Roe isn't overturned, it could be seriously limited. For example a court could overturn Roe only for the unborn in the second trimester. This would allow states to outlaw abortion for fetuses after 12-15 weeks.
Such a decision could be decided along the lines of Roe arguing that the first Roe court misinterpreted when life begins.
Further, such a decision would not cause the same "outrage" among pro-choice moderates because most moderates support more restrictions.
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