Friday, July 1, 2005

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The Supreme Court's long, hot summer

Gonna be a long summer.

Orin Kerr has some interesting (but mildly contradictory) musings on O'Connor's resignation. Of particular interest:

Supreme Court advocacy in the last decade has focused a great deal on trying to understand the mind of SOC, as she was the swing vote in many big cases. That learning has just become obsolete....

O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.

Brian Fletcher at SCOTUSblog has a roundup of initial reactions. They've also set up a Supreme Court Nominations blog that will undoubtedly be worth checking out.

posted by Dan on 07.01.05 at 12:13 PM


Prediction: Emilio Garza will be the nominee.

posted by: erg on 07.01.05 at 12:13 PM [permalink]

Gonzales will get the nomination.

The real fun will be had if Rehnquist or Stevens steps down.

posted by: Johnny Upton on 07.01.05 at 12:13 PM [permalink]

Maybe, maybe not. Most of the Senate is sick to death of arguing about judges; conservative Republicans would welcome a conservative who did not require a bloody confirmation fight and Democrats who think beyond next week understand that a new Justice will have to be confirmed at some point. If they hold up O'Connor's replacement without a really good reason -- maybe even with one -- they will have a hard time maintaining party unity.

On the other hand, consultation between Bush and Senate leaders before a nomination is announced could greatly reduce the chances of a long confirmation battle. This will not happen because Bush hates consultation on anything; it's just too awkward, and too much work. Secondly interest groups on both sides are loaded for bear. No better opportunity to "energize bases" and ramp up fundraising will come along until, well, the next Court vacancy, and who knows when that will be?

Finally Bush is most likely to make his first nomination someone he knows personally. He has a track record of seeking familiar faces for prominent positions, and since he is not a jurist the familiar faces for this nomination are mostly people he has either appointed to lower courts as governor of Texas or as President, or people who have worked for him, or both. At least one of the people in this group -- Gonzales -- has major strikes against him that could make confirmation problematic, yet he is the potential Court nominee closest to Bush.

My guess, which is only that, is that Garza will be the President's choice and will be confirmed with enough Democratic support to make a filibuster unsustainable and a renewed attack on the Senate rules unnecessary. We'll see.

posted by: Zathras on 07.01.05 at 12:13 PM [permalink]

While its true that new justices can be hard to predict, I think the days of the Stevens or Souter nomination are over. A Republican President no longer faces a Senate Democratic majority. Justices can take independent paths, but in 95% of the cases, a Bush appointee would take positions that the administration would approve of (law-and-order conservative, pro-war on terrorism statutes, reduction of federal power otherwise, anti-abortion).

I think Bush will go for a Latino. A Hispanic woman would be ideal for him, but I don't know if there is one with the appropriate qualifications and ideology. Out of Garza and Gonzales, I think Garza will win out. That will leave Dems in the unfortunate position of having to vote down the first Hispanic Justice. Too risk for many Dems

posted by: erg on 07.01.05 at 12:13 PM [permalink]

Why is it that everyone and their mother seems to have an opinion on the Middle East (a topic that they usually have no experience with and know nothing about) while almost no one seems to be interested with a more immediate and important issue like the Supreme Court?

I would think that more people would not care about what happens in the Middle East, but it seems that it is easy to strike up a conversation about it while it is almost impossible to get people to say what they think about our own system of government.

maybe more people should realize and admit that they have no clue about the Middle East, as they seem to admit (or at least are more aware) that that have no clue about the courts.

posted by: this is weird on 07.01.05 at 12:13 PM [permalink]

The real question here is whether Bush cares enough about the credibility of the courts and their role in American society to stand up to the far right wing. Given his willingness to trash the rules of the Senate in order to put some wingnut judges on the bench, the evidence suggests that he doesn't.

The question of O'Connor's replacement is really all about one issue --- abortion. Roe v. Wade has been consistently confirmed for the last 25 years, and the idea that one organizes politically to get a Supreme Court that will overthrow standing precedents is anathema to our system of government.

If Bush nominates an anti-choice judge and Roe is overturned, it will signal the end of 200 years of jurisprudence in which standing court precedent was the most important consideration in determining how judicial decision-making occurred. Politics, not precedent, will take the lead in how judges rule --- and the docket of the Supreme Court will be swamped with controversial cases that lower court judges have ruled against standing precedent in the hope that the political make-up of the court will rule in their favor.

George W. Bush is the Worst President Ever --- and one fears he is about to reconfirm the appropriateness of that title by trashing the courts in the same way he has trashed our long-term economic prospects, our national security, and the legislative process.

No doubt the wingnuts will be thrilled....

posted by: p.lukasiak on 07.01.05 at 12:13 PM [permalink]

"The question of O'Connor's replacement is really all about one issue --- abortion. Roe v. Wade has been consistently confirmed for the last 25 years, and the idea that one organizes politically to get a Supreme Court that will overthrow standing precedents is anathema to our system of government."

So you would have them overturn Brown? After all there was already the Plessy decision.

posted by: Johnny Upton on 07.01.05 at 12:13 PM [permalink]

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