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Why?
I keep reading things like this:
In addition, Chief Justice William H. Rehnquist's illness increases the likelihood that Mr. Bush will nominate at least one new Supreme Court justice early in his second term. A fight over ideology could erupt if he tries to reward social conservatives by nominating someone who is against abortion rights.Why would that happen? Rehnquist already wants to overturn Roe. It doesn't get overturned because there are five justices solidly behind the Court's abortion rights jurisprudence, and one additional judge (Kennedy) who supports some, but not all, of said jurisprudence. Replacing the pro-life, anti-Roe Rehnquist with another pro-life, anti-Roe nominee wouldn't change anything. Or, rather, it would surely change something but nothing relevant to abortion. My prediction is that contrary to much of the breathless reporting we've been seeing lately, replacing Rehnquist won't be a big deal. Bush will appoint a new judge whose record indicates that he'll act similarly to Rehnquist on all the hotbutton issues. The right will be perfectly happy -- they like Rehnquist. The left won't be thrilled, but they'll accept it -- they've been putting up with Rehnquist for 30 years now. The problems will arise of O'Connor or Stevens leaves the Court.
November 7, 2004 | Permalink
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Comments
Why would Democrats see the preservation of the status quo as an acceptable thing when replacing Rehnquist? Instead of viewing the fight for the Supreme Court one justice at a time, if they look out over the next couple years and assume they'll have, let's say, 2 nomination battles, they could plan on making a big stink over both and hope to be able to affect at least one of those nominations. That way they need only a 50% success rate to maintain the status quo.
Of course, it's hard to imagine the Democrats being able to do much to affect the nomination/confirmation process under any circumstances. But that won't have changed the next time around when it's Stevens or O'Connor retiring. I say, if they're going to fight excessively right-leaning SC nominees, they fight it every time.
Posted by: chrisbrody | Nov 7, 2004 11:23:51 PM
For whatever it's worth, appointing a Scalia/Thomas clone would be significant backsliding in compared to Rehnquist. The "statist" Republican judges, as opposed to the "states' rights" Republican judges, are more likely to be hostile to economic legislation. Remember, in Clarence Thomas's world, Congress' power to regulate "commerce" is limited only to regulating the flow of goods (not even services) among states.
Yes, Scalia like bright lines, and this has led him to side with the liberals on mandatory minimums, flag burning, and the enemy combatant cases. But he is much more hostile to economic legislation than Rehnquist is.
Posted by: niq | Nov 7, 2004 11:26:44 PM
I'm no expert on this stuff, but it seems to me there is a significant qualification to what you say: assuming the relevant parties know everything you say, how does each party game the nominations process, going on the further assumption that the replacement of Rehnquist will not be the last during Bush's term? Are the Democrats wise to follow chrisbrody's strategy outlined above? (I suspect not.) Does Bush in fact nominate a relative moderate conservative first time around in hopes of saving some of his vaunted political capital for a real fight if and when he gets to replace a basically pro-Roe justice? Or does Bush nominate a whacko now, in hopes of placating the serious right so that he can nominate someone reasonable next time? Plus with that strategy Bush might draw the Democrats into a major fight now, in ancitipation of winning it and thereby draining the Democrats of whatever little political capital they have, so that next time he nominates a whacko to replace a reasonable justice with hopes for little effectual opposition from the Democrats. These various scenarios obviously depend on different assumptions about what the motivations of the players are.
Posted by: Jeff L. | Nov 7, 2004 11:37:35 PM
Democrats
Remember Churchill...
We will fight them on the beaches,
we will fight them ..etc. (lack of memory)
This is no time to talk of parity. Not a time to compromise. This is what brought demcrast to their sad state of affairs. I want to see them fight every appointee, no matter what!!! Show some back bone dammit.
Posted by: Stephen | Nov 7, 2004 11:40:30 PM
Jeff L, I'm inclined to assume that Bush will appoint right-wing hack to every position with an opening anywhere in government.
Posted by: Toadmonster | Nov 7, 2004 11:49:56 PM
If Democrats vigorously contest every nominee, the Republicans will point this out in the next congressional election and there will be even fewer Democratic senators around. The GOP clobbered Daschle with this precise issue.
Great idea: I'm all for it.
Besides, if Specter becomes Senate Judiciary Committee chairman, it will be the same as having a Democrat holding the gavel.
Posted by: Matthew Vadum | Nov 7, 2004 11:52:33 PM
I say let Bush have who he wants, unless of course, it's somebody who's been burning crosses on weekends for the last five years. Honestly, all I see if the Dems resist too strongly is a heavy media backlash. After all, to Chris Matthews and the crowd, Bush is a tough guy who has just won a mandate and deserves what he wants.
Maybe we'll see a couple NYTimes editorials against "extremist" judges but who'll really give a damn. Dems are in the minority, the Reps know this, they know they call the shots, and they know their press conferences stock a whole lot more stenographic reporters than the Dem conferences. I mean, they did a pretty good job making Daschle look bad and nobody in news helped him. Worse, if Dems come out in two years with only a record of "obstructionism," assuming the economy doesn't tank and the war doesn't take an extreme turn for the worst, I think we'll have handed the Reps the election.
Posted by: KC | Nov 7, 2004 11:56:01 PM
Jeff L. -- totally agreed, it's a bad strategy. I just failed to see why we start out the presidential term by letting the Republicans have a freebee and then contest the next one. Why not contest it from the beginning, and then, at whatever point we're satisfied with the ideological balance of the court, let the Republicans walk all over us from that point on.
Posted by: chrisbrody | Nov 8, 2004 12:02:30 AM
Yes, that's exactly right. I suppose it's not literally true that you can't do worse than Rehnquist--Bush could nominate Priscila Owen or something--but within the group of plausible nominees it's basically true. Scalia gets more ink, but at least he and Thomas have a libertarian streak. At least in the context of a Court that defers on most economic regulation, Rehnquist is the most reactionary justice on the Court.
Posted by: Scott Lemieux | Nov 8, 2004 12:12:40 AM
By the way, the claim that obstructing federal judges would hurt Dems in the 2006 elections is ridiculous. Yeah, stopping 60 judges really hurt the GOP in Congress in 2000...
Posted by: Scott Lemieux | Nov 8, 2004 12:15:05 AM
This has to be one of the most bizarre counsels of weakness and submission I have ever heard. No wonder the Democrats are stuck in Loserville.
Supreme Court changes are rare. You can never afford just to give the other guys a *pass* on one. You contest each and every one and do what it takes to get the best possible guy for your side.
Other justices will retire too. What are we supposed to do? Wait until Stevens retires and put all our eggs in that one basket? What if wait and then we *lose* that final battle? Why not try to put insurance in the bank ahead of time?
You are seriously suggesting that the Dems should bend over for a Rhenquist clone just because at least it won't be any *worse*? If a quarterback can't find a receiver do you try to sack him, or just stand there like an idiot and let him throw the ball out of bounds, and then say "it's OK because at least he didn't gain any additional yardage?" Of course not! Third and twenty is much better than third and ten. You use every possible opening to push in the opposite direction.
Dems can use the Rhenquist replacement fight to knock the Republicans out of the overturning Roe game right away. Then when the next replacement comes up, the opportunity to overturn Roe won't even
Posted by: Dan Kervick | Nov 8, 2004 12:27:32 AM
The other point about a Rehnquist retirement is that they'd not only have to nominate a new justice; they's also have to nominate a new Chief Justice. Perhaps a bit more symbolic, but likely to be a flashpoint.
From the dems point of view, they can fight like hell and lose, or they can roll over and lose. This is what comes of not winning elections (either for president or in the senate). BTW, all Bush's nominees will be far-right hacks. Count on it.
The one interesting part of this drama will be whether they actually end up going for it on overturning Roe. The abortion issue has been the bread and butter of republican campaigns for decades. Losing it as an issue will significantly weaken their fundraising and GOTV. OTOH they can hardly drag their feet on this with victory so close. (Matt's right that this comes up after a Stevens or O'Connor retirement, not the Rehnquist.)
Posted by: jimBOB | Nov 8, 2004 12:27:58 AM
I don't particularly like most conservative politicians, but I love conservative judges. You guys seriously underestimate the extent to which conservative judges will rule against conservative political interests when the constitution demands it (with the obvious exception of Bush v. Gore). I can't say the same about liberal judges; from what I can tell, they just blindly serve liberal poliical interests.
BTW, I wouldn't worry about Scalia as Chief Justice. There is no way Bush would nominate him. A Chief Justice needs to be able to organize and effectively work with the other justices. Scalia would make an awful chief. As much as I love him as a judge, Scalia is basically an asshole. He'll never be chief, and I doubt he would even want the job. If O'Connor were a few years younger, I'd strongly press for her to get the job. She would be perfect for it.
Posted by: Xavier | Nov 8, 2004 12:40:56 AM
SCOTUS read election returns too. Regardless of makeup, won't grant certiori to any case that could overturn R v W until after 2008 elections are safely history.
Posted by: liberal elitest | Nov 8, 2004 12:43:13 AM
If Democrats make it too difficult, the GOP will go for the "nuclear" option of junking the filibuster rule with regard to judicial nominees. After all, the Constitution doesn't say anything about filibusters. The Senate created filibusters and it can take them away too.
In a situation of continued Democratic obstruction, more likely than not the public would side with the Republicans. Judges would then be confirmed by a simple majority of senators. Yes, the more I think about the obstruction approach, the more I think it's a great idea.
BTW, Drudge is reporting that Bush is considering Clarence Thomas to be the next Chief Justice.
Posted by: Matthew Vadum | Nov 8, 2004 12:46:57 AM
I just can't see the Republican establishment trying to engineer a Supreme Court that will overturn Roe . If they do, they will unleash a bloodbath in their own party. The only way they've been able to keep their fragile coalition of anti-choice religious conservatives and pro-choice libertarian and moderate conservatives together is by not having to deal with abortion rights in any fundamental way. The issue has been off the table for thirty years. If Roe is overturned, the GOP base, which is dominated by religious types, will immediately push for sweeping restrictions on abortion, and the soccer moms and libertarians will start deserting the party in droves. It will only take a small shift in voting patterns to give the Democrats control of Congress again, not to mention the Presidency.
Posted by: Don P | Nov 8, 2004 12:52:49 AM
Liberal Elitist says "SCOTUS read election returns too. Regardless of makeup, won't grant certiori to any case that could overturn R v W until after 2008 elections are safely history."
You don't know what you're talking about. It only takes 4 votes in conference for a case to be granted cert.
Thomas + Scalia + Hack who Replaces Rehnquist + maybe Kennedy/ Hack who Replaces Stevens/O'Connor =4.
To overturn it, yes, they would need 9.
Anyhow, the Dems response somewhat turns on who Bush appoints. If it's a halfway decent person--looking more like a Souter & not a Thomas--then pointless obstructionism just isn't helpful. But still, a total hack (esp a young one) replacing Rehnquist should be fought tooth & nail.
Posted by: J | Nov 8, 2004 12:53:20 AM
obviously I meant "to overturn it, yes, they would need 5 of 9." Sorry.
And anyhow, Scalia + Thomas + Hack(Rehnquist) + Hack (for Stevens/O'Connor) + Kennedy (probably) = 5.
If both Stevens & O'Connor go, Roe is overturned for sure.
And when it does, I actually agree with the guy above--altho it'll be the fundies' wet dream, it'll probably be the electoral undoing of their party.
Posted by: J | Nov 8, 2004 12:56:02 AM
Matthew Vadum:
In a situation of continued Democratic obstruction, more likely than not the public would side with the Republicans.
Your posts consist almost entirely of wishful thinking presented as empirical fact. Your guys won by a small margin. Almost half the country voted for Democrats. I suggest you dwell on the implications of that a little more deeply.
I guess you've learned nothing since your last debacle. Remember the "Republican Revolution" of 1994? It was the mid-term election of the first Clinton administration. Voters were angry at Clinton's perceived liberalism, and control of the House switched to the Republicans. True to form, your guys misinterpreted this result as a mandate for their policies, and started trying to enact a radical right-wing agenda. Newt Gingrich and his minions were all over the media announcing the death of Big Government and "Welfare State Liberalism", and the rise of the new "Conservative Opportunity Society."
Do you remember what happened next? Your guys went head-to-head with Clinton, and they lost. Numerous freshman GOP congressmen were defeated in the 1996 election, and Clinton was handily re-elected. You massively misjudged the voters. And now you seem to be doing it again.
And you don't hear much talk about the supposed evils of Big Government any more. That ship has sailed. Yes, the pesky libertarians keep whining about it, but they are too few and too weak to matter. The Republican Party has firmly embraced Big Government. The Republican Party loves Big Government. George Bush and the Republican Congress have created the biggest expansion of government in a generation.
It's funny how things work out, isn't it?
Posted by: Don P | Nov 8, 2004 1:14:17 AM
Can someone tell me what the "nuclear option" is that would enable the R's to eliminate the filibuster? How would such a proposal make it through the Senate? Couldn't the D's filibuster the proposal to filibuster?
Posted by: old grizzly | Nov 8, 2004 1:16:45 AM
Roe Vs. Wade is Unconstitutional because it violates the Tenth Amendment and Bill of Rights.
Posted by: Modern Crusader | Nov 8, 2004 1:50:57 AM
"I don't particularly like most conservative politicians, but I love conservative judges. You guys seriously underestimate the extent to which conservative judges will rule against conservative political interests when the constitution demands it (with the obvious exception of Bush v. Gore). I can't say the same about liberal judges; from what I can tell, they just blindly serve liberal poliical interests."
I think you are giving Scalia too much credit for the handful of cases where he's sided with liberals (mandatory minimum, flag burning, and enemy combatant cases are the ones that come to) and Clarence Thomas for his stricter view of Free Speech. What's more, not all conservative judges are as principled as Scalia. If Robert Bork had become a supreme court justice, for instance, I suspect that his jurisprudence would line up exactly with the Republican party platform. Scalia lines up with the party line on all economic matters (even endorsing a "regulatory takings" view of the Takings Clause), he supports eliminating lots of death penalty appeals on what are essentially the grounds that we can never be 100% correct so why bother, and he thinks that government can be in the business of regulating Sodomy, abortion, the right to die, teaching creationism. While I tend to agree that Roe is probably bad law, it's not like there is some painfully compelling reason to overturn it, and gay rights probably fall under the equal protection clause.
Posted by: niq | Nov 8, 2004 1:55:13 AM
"This has to be one of the most bizarre counsels of weakness and submission I have ever heard. No wonder the Democrats are stuck in Loserville."
Actually, Democrats are stuck in Loserville because of clueless lefites like you.
Perhaps if we had more than 45 Senators, we might have some kind of say in who gets on the Supreme Court.
Posted by: Petey | Nov 8, 2004 3:11:33 AM
Roe Vs. Wade is Unconstitutional because it violates the Tenth Amendment and Bill of Rights.
This is a new one. A Supreme Court decision being unconstitutional.
On whether the Supreme Court might grant cert in a case in which RvW might be overturned before the 2008 election, is there a case currently pending in the lower courts in which the issue in RvW might be raised? If not, it might be a bit difficult to get a case up to the Supreme Court before the 2008 election.
Posted by: raj | Nov 8, 2004 5:49:35 AM
We're not ALL legal realists, Raj. But your point about how long it takes to get a case to the Supreme court is quite true.
Posted by: Brett Bellmore | Nov 8, 2004 6:16:20 AM
