Hamilton, Madison, and Jay

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Monday, October 6, 2008

An important issue for the next president -- The US Supreme Court

This is an issue that's not just on the minds of court watchers, law professors, and legal scholars. This is on the minds of many Americans. Why? Because Justices Kennedy, Stevens, Ginsburg, Souter, Breyer, and Scalia aren't spring chickens anymore. They're all over 65, and Ginsburg and Stevens are rumored to be in ill health. Today's WaPo discusses this topic and rightly points out that the next president could have as many as three appointments in the next four years:

"A President Obama or a President McCain will likely be handed an opportunity to affect the makeup of the Supreme Court that is unprecedented in our history," said Wendy Long, chief counsel for the Judicial Confirmation Network, which was active in generating public support for the confirmations of Roberts and Alito.

Obama, supported by a strongly Democratic Senate, could be presented with three openings during his first term, said Walter Dellinger, a prolific Supreme Court practitioner who was acting solicitor general in the Clinton administration.

He said it likely that Justices John Paul Stevens, 88, Ruth Bader Ginsburg, 75, and David H. Souter, 69, would step down in the next four years if Obama were elected.

"President Obama is going to be able, I think, to name whoever he wishes to the court and have that person confirmed," Dellinger said last week during a discussion at the Institute of Bill of Rights Law at William and Mary Law School.

But whether that would alter the court's basic dynamic is hardly clear.

The court is roughly balanced on important constitutional issues, with four consistent conservatives, four liberals and, in the middle, Justice Anthony M. Kennedy, who leans right on many issues but often joins liberals on some of the court's most controversial decisions.

Replacing liberals Stevens, Ginsburg and Souter with similar-minded justices would infuse the left wing of the court with younger leadership but leave the basic balance intact. ...

Replacing one of the liberal justices with a consistent conservative such as Roberts and Alito -- the two McCain has said would serve as models for his picks -- could have far-reaching consequences on issues such as abortion, church-state separation, racial preferences and executive privilege.

But, as other presidents have found, justices take seriously their lifetime appointments and their legacies.

"We know from history that people generally do not leave the court when they're going to be replaced by someone they don't think is very much like them ideologically," McGinnis said.

Even if McCain has the chance to replace one of the liberals, he would face a formidable obstacle if Democrats control more than 55 seats in the Senate.

"It would be impossible for him to get somebody who's extremely conservative confirmed in . . . a Democratic Senate," said lawyer Miguel Estrada, whose nomination to a federal appellate court was blocked by Democrats.

McCain's best bet to appoint someone close to his "ideological ideal point," McGinnis said, would be to nominate a woman or a minority, who might be more difficult for Democrats to oppose. The last three appointments to the court have been white men, and there has never been a Hispanic justice.

They're right on two points. If McCain wins (which we believe he will) the chances that any of the liberal justices would step down is slim. They're not apt to step down if their replacement isn't at least close to their judicial ideology. Forget politics, folks. The liberal wing of the high court firmly believes in a "living, breathing" Constitution. They also believe in the way Obama sees the role of a justice. The WaPo cites the quote from a speech he gave this year on the Supreme Court:

"That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy."

He's dead wrong on this, and as someone who believes in a "living, breathing" Constitution it's no wonder why he thinks this way. He believes that the Constitution is malleable, like clay, and that the justices can create whatever they want to from a rather broad-minded interpretation of the issue they face rather than remaining confined by what the Constitution states.

The other point they're right on is that if McCain is facing a Senate with 55 Democrats, he would have a much better chance of getting a woman or a minority on the high court. That's not downplaying their judicial credentials. We have a long bench of people who could be brought up for confirmation. Emilio Garza of the Fifth Circuit Court is a possibility, and would be a hard nominee for Democrats to kill. (Who wants to kill a Latino and a former Marine?) There's Janice Rogers Brown on the DC Circuit Court. Edith Clement sits on the Fifth Circuit Court with Judge Garza. Alice Batchelder is on the Sixth Circuit Court. Priscilla Owens is on the Fifth Circuit Court. Alice Sykes is on the Seventh Circuit Court. There's six right there, which is a distinct possibility for a president that serves two terms.

This is one of those issues that a lot of people just don't pay attention to, but they really should because with the way the high court is ruling right now A) they are about as divided as the country is, and B) some of their more recent rulings have had a significant impact on the nation. We've seen that the right to own a firearm is an individual right, that a state's death penalty for a child rapist can be struck down, that partial-birth abortion is unconstitutional, and that our enemies have the right to challenge their detention in our appeals courts. (No word yet if the liberal wing would like to have them mirandized on the battlefield, but we wouldn't be surprised if that happened with a President Obama, and his uber-liberal replacement jurists.)

Despite his creating the Gang of 14, John McCain would be a friend to originalists and strict constructionists. We know this because Ted Olsen is one of his advisers on that subject, and Fred Thompson has said that McCain would seek out his counsel as well. With both of those men working with him on such a monumental decision, we're virtually guaranteed to get a good justice or three. We could, literally, see an unprecedented change in Supreme Court judicial philosophy, going back to the roots of the high court which would be a welcome change at a time when the nation needs it most.

Oh, and a small aside here. I recently received as a gift from my lovely wife Christopher Buckley's new book "Supreme Courtship." It is a must-read that will have you laughing from beginning to end. We could only hope to get a nominee like Pepper Cartwright that ties the Senate Judiciary Committee and it's chairman in knots.

Publius II

2 Comments:

Blogger Adam said...

I'm glad to see you enjoyed Mr. Buckley's latest book. You might also like to see his new interview series with Peter Robinson over at National Review Online.

Check it out at: http://tv.nationalreview.com/uncommonknowledge

Take care,

Adam

October 7, 2008 at 3:58 PM  
Blogger Syd And Vaughn said...

Adam,

We are watching him on NRO's "Uncommon Knowledge," and we're delighted to hear him speak of his book, his views, and of his ideology7. I spotted this on Monday, and I watched the second part today.

Publius II

October 7, 2008 at 7:27 PM  

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