January 5, 2006

On taking Justice O'Connor's seat.

John -- my son, John Althouse Cohen -- emails this passage from the WaPo:
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.
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.

Just guessing!


jeff said...

Now filling the chair exited by Justice O'Connor...
...someone with consistency.

Kierkegaard Lives said...

Isn't the point of the WaPo article that Alito is likely to get a more thorough grilling because he is replacing O'Connor? It seems to me that Roberts got much less grilling for several reasons, but a big part was that he was replacing Rehnquist and the Dems felt it more worth their time and effort to wait to "fight" over the replacement of O'Connor. In other words, Roberts likely would have been grilled more if he had continued as the nominee to replace O'Connor. In that regard it makes a lot of sense to focus on who is being replaced, and the point of the article seems right on. Maybe it's just me, though?

John Althouse Cohen said...

Kierkegaard lives: You are repeating the fallacy from the WaPo article. Back when the Senate was questioning Roberts, they knew that both Rehnquist and O'Connor had to be replaced. Once Rehnquist and O'Connor are both gone and the two new Justices are on the court, the new Justices will be equally powerful. (If anything, Roberts will be marginally more powerful than Alito because of Roberts' position as Chief Justice.) O'Connor may have been more powerful than Rehnquist when both of them were on the court, but once Roberts and Alito are both on the court, there is no reason to assume that Alito's vote will therefore tend to be more decisive than Roberts'. If Alito does turn out to be more of a swing vote, it will be because of Alito's and Roberts' own views, not because of O'Connor's and Rehnquist's views. It is entirely possible, for example, that Alito will turn out to be a reliable conservative and that Roberts will emerge as an O'Connor-esque swing voter. I have no idea whether that will actually happen, but the idea that the ghost of Rehnquist is somehow going to confine Roberts' rulings is, again, superstition.

vbspurs said...

Don't you want to know? But you can't.

I have never ever understood why a justice is supposed to replace a justice by resembling them in some way.

Look at the absurdity of Clarence Thomas having been appointed because, amongst other things, he shared the skin tone of Thurgood Marshall...

...even if both these gentlemen couldn't have been FARTHER apart ideologically.

But at least he was black!, went whatever twisted thinking lay behind this kind opinion.

This was what at first made me groan about Harriet Miers' nomination, much before finding out specifics about her.

SDO = woman
HM = woman

And now:

SDO = moderate
Alito = must be moderate

Stop. This has got to stop.

It doesn't even have any affect, either.

Clarence Thomas couldn't have been more set at by the dogs of opposition, than if he had been a blond, blue-eyed Nazi poster child.


Kierkegaard Lives said...

I don't disagree with your argument about which of these might be more powerful or the unpredictability of whether either will end up being a reliable conservative. But it seems to me that the point, which I don't view as a fallacy, is that with two Justices leaving, one a firm conservative and one a more moderate, the Dems, who pretty much knew they could not realistically win two major confirmation battles, chose to let Roberts slide because his nomination was switched to that replacing Rehnquist. It isn't that he will, in reality, be haunted by the ghost of Rehnquist or anything of the sort. But in terms of the confirmation "battle," knowing that Roberts was going to be tough to challenge anyway, it was easier for the Dems to say to their constituents that they let Roberts through more easily because he was replacing Rehnquist and seemed of a like mind, and that they are waiting to "fight" Alito because the seat he is up for is that of a more moderate, O'Connor. Could they have fought Roberts, hoped for a moderate there, and then let a more conservative slide easily into O'Connor's seat and gotten the same end-result? Sure. But in terms of selling the confirmation challenge to the public, looking at who is actually being replaced does make sense.

Perhaps we are really saying the same thing in the end, but it seems to me that the Dems felt they had to fight one of the two nominations and it makes more sense, at least viscerally, for them to wage that battle over a particular seat rather than just a random one. I think this is especially true when the Rehnquist opening had to be filled first because had they chosen to battle then, and lost (likely), they would have been in a much weaker position to battle the second nomination.

John Althouse Cohen said...

Kierkegaard lives: Yes, I agree with what you and my mom are saying about public perception. That's a fair point.

nunzio said...

Won't Alito literally be taking Breyer's seat?

As for following in your predecessor's footsteps, Breyer has done a so-so job of following Justice Blackmun, who definitely would have been in the Apprendi majority.

But Ginsburg has done a pretty poor job of following Justice White, who certainly would not have signed on to Steinberg v. Carhart.

When did this whole restore balance to the force argument start, anyway? This year?

OddD said...

"restore balance to the force"

Heh. You know, when that statement is made, the balance was in favor of good, rather than evil. Balancing The Force seems like a bad idea in that context.

I can only assume that things get muddled when you try to transpose good and evil on to yin and yang. Or Star Wars on to politics.

TidalPoet said...

The Sith were just misunderstood radicals of a particular religion. "evil" tsk tsk.

Eli Blake said...
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SamuelAlito said...

I agree that Kierkegaard has the spirit of the Post article. It is not that the judge himself will be influenced by the past, but that the public (who after all, theoretically elect the senators) will hold senators more accountable if a major decision comes out and Alito casts a deciding vote to overturn a decision that O'Connor had voted for originally. It's true that it could just as easily be Roberts's vote making the difference, but the issue is one of perception and politics on behalf of the public. That is why Roberts became such an obvious choice for elevation when Renquist died. If Roberts had replaced O'Connor at the time, then dems would have said of this nomination that the candidate was "reallly" replacing O'Connor. The move saved the republicans one fight. They knew they would have just one.

My thoughts on SDO, incidentally, are as follows: "I deeply respect Sandra Day O'Connor and that can only hope to live up to her great example of profound devotion to the rule of law."


Bruce Hayden said...

Maybe OT, but I found interesting the ABA ratings of the various Supreme Court nominees over time. As we all know, Judge Alito was rated Well Qualified. But, interestingly, Justice O'Connor was not unanamously considered well qualified when she was nominated. Rather, she received high marks for temperment, but not for legal ability.

The Exalted said...
This comment has been removed by a blog administrator.
The Exalted said...

ok, now i see what you are saying, if the democrats are opposed to two conservatives replacing two outgoing justices, then which incoming conservative is replacing which outgoing justice is logically, for its own sake, not important. fair enough.

by the way

any comment on alito's absurd take on statutory interpretation?

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress."

Ann Althouse said...

Explain what you find absurd.