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July 01, 2005

What is at stake?

Justice O'Connor's retirement is being referred to as a "tipping point" in SCOTUS history. This speculation is premature for several reasons. First, it is entirely too early to predict whether her replacement will indeed be a more conservative jurist than she was. Second, it is too early to predict the dynamics that the new Justice will bring about--i.e. what new alliances and voting relationships will appear. When the SCOTUS returns in October, there will be several cases waiting that will give the new Justice an opportunity to make a good impression. Among these cases are disputes regarding the Constitutionality of prohibiting religous use of controlled substances, prohibiting assisted suicide, and parental notification laws.

There is no doubt that controversial issues may become more controversial, since Justice O'Connor's vote was often the swing vote in "controversial" cases. The LA Times has an article outlining some critical votes that O'Connor has cast during her tenure as an Associate Justice.

--1984: O'Connor writes a concurring opinion on nativity scenes that sets the legal standard for determining which displays violate the Constitution's prohibition on government establishment of religion.

--1989: O'Connor's opinion for the court declares that government programs violate equal protection when they set aside a fixed percentage of public contracts for minority businesses.

--1992: O'Connor and Justice Anthony Kennedy join a plurality opinion by Justice David Souter that criticizes the constitutional foundation for legalized abortion, while declining to overturn the 1973 decision that legalized it.

--2003: O'Connor co-authors the majority opinion upholding 5-4 the broadest restrictions on campaign donations in nearly 30 years.

SCOTUSblog has compiled their own list of "at risk" precedent.

I've spoken with several professors and court-watchers who have been around long enough to see many presidents appoint many Justices, and almost all agree that the nomination process has never been as politicized as it is now. Therefore, I think it is a safe bet that Bush is far more intent--than his father, or several other Republican presidents--on securing that his SCOTUS appointments be strict constructionists. Regardless, the current line-up of Justices proves that expectations are not always met--even when the nominee has a long and open track record.

Justices Stevens, Souter, Kennedy, and O'Connor, were appointed by Republicans, and none are really conservative darlings. Souter was genuinely considered a "stealth candidate" despite having served for several years on the New Hampshire Supreme Court, and on the First Circuit immediately before being appointed to the SCOTUS by Bush 41. Everyone thought he would dramatically shift the Court in a conservative direction. He didn't.

Justice Stevens served on the Seventh Circuit for five years before Ford appointed him to the SCOTUS, and his nomination was fiercely opposed by liberal groups. Although, unlike Souter, most considered Stevens to be a true moderate. Justice Kennedy--the man who wasn't Bork--served on the Ninth Circuit for more than a decade before Reagan nominated him to the SCOTUS after failing to get either Robert Bork or Douglas Ginsburg. Justice O'Connor, herself a Republican politician, served on the Arizona Court of Appeals very briefly before being appointed to the SCOTUS.

Don't start counting chickens until the eggs hatch.

Posted by Jonathan Bunch at July 1, 2005 11:49 AM

Comments

Well said all the way around, Jonathan. Personally, I'm filled with an odd combination of giddiness (it's just a fun issue for me and now it really matters) and dread (because I think this is going to be a very ugly, polarizing summer politically no matter who is nominated).

Posted by: Ed Brayton at July 1, 2005 12:48 PM | permalink

I know what you mean. My feelings are similar to those I had when I found out that the Ninja Turtles would be made into a movie. I was giddy like a school girl, yet confused as to how you would make a turtle be a ninja in a real movie.

Posted by: Jonathan Bunch at July 1, 2005 12:54 PM | permalink

The contentiousness in the Senate and in DC generally will complicate things, but there is another factor at play that will make this confirmation bigger and badder than any in history. With this being the first SCOTUS nomination in the New Media era, I expect a lot of junk from all sides about extremists and tipping points. We are all giddy now, but we are going to hate this process and all of the people involved in it by the end of things.

Posted by: Adam Packer at July 1, 2005 02:18 PM | permalink

I'm already tired of it. The only upside for me is that I never really liked reading O'Connor's opinions. They struck me as overly long, squishy, and outlined too minutely.

All the abortion talk is going to bore me, I'm afraid. In principal, I support the notion that the government has no business in a woman's uterus. But, as a practical matter, it just doesn't really apply to me at this point in my life.

We'll hear a lot about "activist judges," but as the estimable Mr. Brayton has pointed out, that combination of words has basically become meaningless.

The left will cherry-pick all of the worst bits from the nominee's background such that I won't really be able to trust their assessment of whether this guy (or gal) is a loon or merely a person of sound jurisprudence with some poorly turned phrases in his or her opinions. By the same token, the right would loudly proclaim that a pro-life ham sandwich was the second coming of Blackstone, Marshall, Hand, and Holmes all rolled into one if it was nominated by George Bush.

Television "news" will treat me to an endless array of "experts" determined not to provide any substantive analysis but who merely throw buzzwords at each other between Pepsi ads.

So, I'm already tired.

Posted by: Doug at July 1, 2005 02:49 PM | permalink

Doug-

Boy, you just summed it about as perfectly as could be. But that's all just the bad side. The good side is that there are some people here at this blog, at least, who can have an interesting and reasoned discussion about the nominee's real opinions (rather than just a few out of context tidbits) and the real issues at stake. We certainly have some disagreements no judicial philosophy, but I think we can all agree that the nonsense that will be shoveled out by partisan hacks on both sides can be dismissed and a real exchange of views can replace it, at least here.

Posted by: Ed Brayton at July 1, 2005 03:59 PM | permalink

Good point, Ed. In the past couple of months, I've really taken a shine to this place -- as well as John Cole's site (where I posted the above comment and, oddly enough, he quoted it on his front page). My politics tend toward the left these days (or at least toward the anti-Republican), but the True Believers at DailyKos all start sounding alike after awhile. (As do the True Believers at Free Republic, for example.)

So, for the next couple of months, maybe I can get my judicial news from these sites; avoid MSNBCNNFoxNews like the plague; focus on Indiana news; and continue trying to perfect my mad Tiger Woods 2005 skillz.

Posted by: Doug at July 1, 2005 04:35 PM | permalink

I predict a requirement for a blood oath sworn in front of Karl Rove, James Dobson and Donald Wildmon where they swear that Christianity will have its place in the public square including the overturn of Roe vs. Wade.

Posted by: Jim S at July 1, 2005 07:52 PM | permalink

Yeah, I'm exhausted as well from all the frenzied hype. From the Nation, on the stakes of this appointment:

"Instead of living in 2005, Americans could find themselves dragged backward to those 19th century days when the Supreme Court was the nation's primary barrier to social and econonic justice."

That's just a truly bizzare way of looking at things ...

Posted by: Phil at July 1, 2005 08:04 PM | permalink

John Cole has an inspired rant. Some of it:

If anyone really thinks Dobson and Tony Perkins care about the Constitution, they need to reassess their faculties. They care about the Constitution in the context that they think liberal activist judges are robbing them from what is rightfully theirs (and in fairness, sometimes they are right). They really care about displaying the Ten Commandments wherever and whenever because we are a "Christian Nation."

They care about inserting themselves into family matters of life and death. They care about keeping drugs out of your hands, even if they ease pain caused by illness. They care about treating homosexuals like second-class citizens. They care about prayer in school and keeping "under God" in the Pledge of Allegiance. They care about ending abortion. They care about making divorces really difficult to obtain. They care about inserting religion into schools and ending the teaching of evolution. They care about a whole host of things, but Constitutional deference is not one of them.


Posted by: Doug at July 1, 2005 09:04 PM | permalink

"This speculation is premature for several reasons. First, it is entirely too early to predict whether her replacement will indeed be a more conservative jurist than she was."

I find this sort of statement both disingenuous and anti-intellectual. Any well-informed person, including the author of the statement, knows that Bush will seek as far-right a justice as he can. And speculation, by its nature, is never premature.

Posted by: ts at July 1, 2005 09:19 PM | permalink

That's premature speculation in the same way it's premature to speculate that the sun will rise in the east tomorrow.

Posted by: Doug at July 1, 2005 11:15 PM | permalink

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