The Weird Politics Before the Rehnquist Retirement:
Is it just me, or has the news relating to the courts and the legal system been a bit weird recently? The big stories in the past few weeks have been filibusters in the Senate, Justice Sunday, the alleged Constitution-in-Exile movement, and Tom DeLay's criticism of Justice Kennedy. All of these stories have something in common, I think. They are mostly proxies for the political struggle to confirm the Bush Administration's choice to replace the ailing Chief Justice Rehnquist.

  Of course, much of this is under the radar screen. The Chief hasn't even announced his retirement yet, so it seems a bit strange to be waging the battle for his replacement. But the battle clearly has begun: more and more news stories about the law and the courts are being triggered by one side or the other jockeying for political advantage. The goal for both sides seems to be to create a political environment designed to influence the swing votes in the Senate. When Rehnquist retires, Bush's nominee to replace him will face a tough time in the Senate. Lots of people are figuring that anything they can to do to fire up the base or shift the political environment to help their side might just make the difference.

  Of course, it's hard to do this on the merits. We don't even know who the nominee will be, so we don't yet have a human story to tell and a record to scrutinize. And most people don't know or care about the details of what the courts do, so an advertising campaign on Eleventh Amendment law or the original meaning of the Fourteenth Amendment seems unlikely to shift the political ground. In this environment, demonizing the worldview of your opponents is key. The other side has to be more than just wrong; the other side needs to be sneaky, suspect, and downright dangerous.

  The most popular strategy on both sides seems to be to take some possible negative effect of your opponent's conduct or position, imagine a very extreme position of it, and then accuse your opponent of intentionally trying to bring that about. You end up with a very weird debate: if you believe all the accusations, you would think that the key question is whether the anti-religious bigots in the Senate will confirm nominees who want to restore the Constitution-in-Exile. After awhile, you can't help but think that no one on either side fully believes what they are so emphatically saying.

  What's the answer? I don't think there is one, except perhaps to wait it out. The political stakes are high, and political actors will do what they think they need to do to help out their side. In the meantime, if you're watching TV and you hear someone say something about the courts that you think is simply absurd, you can probably chalk it up to the weird politics before the Rehnquist retirement.

  Any thoughts? I have enabled comments. As always, civil and respectful comments only.
Ben (mail):
It may seem weird because the last chief justice nomination was more than a few years ago and nobody remembers what it was like. The rhetoric may in fact be more extreme this time. There's an argument that this is because the role and power of the SC has expanded (or at least it is perceived to have expanded), and so the nominations become much more important, which in turn justifies higher levels of rhetoric.
4.29.2005 4:49pm
Crime & Federalism (mail) (www):
Given the strong gun-rights voting base; does anyone think it would be savvy to ask nominees whether they think the 2dA confers an individual right to keep and bear arms? I remember when the Dems were trounced after voting for the Brady Bill and "assault" weapons ban. Perhaps the Pubs could use the Dems' blocking any such pro-individual rights nominee as an issue in the next election.
4.29.2005 5:09pm
Lawyer (mail):
I hope that the next nominee is firmly in would announce that he favors only using American law to determine the constitutionality of American actions everywhere. Therefore, Saddam has a 2d-amendment right to big or small arms. ( I think the framers were pretty clear about this, and it is obviously from the text. ) Likewise, he should swear that in his legal career he has never considered the applicability of any foreign or international law.

Seriously, Professor Kerr has it right. There is some very strange legal politicking going on, and most of it will be for naught. Unless Bush picks someone who is mutually acceptable (and there are many of these people floating around), all the base-firing-up probably does not matter.
4.29.2005 5:33pm
MJ (mail):
I think that I'm speaking for a lot of Republican/Conservatives when I say that we view the Court's expansion of power in the last few years (Atkins, Grutter, Lawrence, Simmons) as an illegitmate excercise in shaping public policy rather than interpreting the constitution. Republicans worked hard to elect the majorities and the Executive branches that we have and do not want to continually lose at the courts what we feel we have and would prevail at with voters.

Thus, a great many of us feel that replacing the CJ with anything less than a conservative committed to textualism (no, not a radical to start tearing down evey precedent we disagree with) would be unacceptable, as it would potentially allow a judge like J. Kennedy or J. Souter to slide through and just start repeating the trend of Atkins, Grutter, Lawrence, Simmons all over again. I think a lot of us feel that given the role the the Court has taken on in shapping public policy: What is the point of working so hard to elect Republicans if we are going to see qualified conservative judges blocked and then have judges who don't share our view of the proper balance of the branches sent to the bench to later undue any legislative progess we make?

So, to a good many of us, we would rather lose the WH and the majorities in the House and Senate if that is the price to pay for returning the Supreme Court back into a court of law rather than a super legislature? The issue of judges is that important.

In short, putting two or possibly three Michael Luttig or Jeff Sutton type judges on the Supreme Court is more important to a good deal of Republican/Conservatives than winning the next election or keeping/expanding the House and Senate.
4.29.2005 5:40pm
I think Scalia is right--the people have caught on. The left and the right alike are beginning to demand that judges with their view of policy are placed on the judiciary (though the left more than the right, as the judiciary is a stronghold of modern liberalism and its undemocratic charater allows for change even when that change is not favored). The Court was never a non-political entity, but it was given great deference because it was perceived to be a body concerned with legal issues, not questions of broad social policy. People have finally caught on to what the Court has really been in the business of the last 40 years, and they're going to treat the Court like they treat their representatives. The nastiness and the bizarre proxy politics Orin notes is just a symptom of a much greater problem. The Supreme Court is not comprised of laywers doing the lawyerly thing of interpreting statutes and the Constitution, they are a de facto supra-legislative body, whose members do not flinch from instituting their own personal policy preferences.
4.29.2005 5:49pm
Wince and Nod (mail) (www):
Well, I'm not a lawyer, but I care. I take offense at the court decisions, going all the way back to Marshall, at least, which nullify or weaken portions ot the Constitution itself. I don't want unelected judges to change the Constitution. I do want them to strike down unconstitutional laws. So I am in favor of textualists or original meaning originalists who are also activists.

4.29.2005 5:49pm
I think this eventually has to end up with the nuclear option. A filibuster of a supreme court justice is inevitable and the bases for both sides will be massively dissapointed if their side caves. The end game is going to be one of brute force. The republicans have VERY little reason to keep the filibuster in place because they cannot get any binding reassurance from democrats that the nuclear would not be invoked once the senate changes hands. Do you really think that the and DailyKos people would not be the ones pushing for the nuclear option if the situation were reversed in a couple years? The political costs are the only think keeping the republicans from pulling the trigger but there is virtually no chance the democrats retake the senate in 06. When the democrats used the nuclear option in 1975 (before attempting to unring the bell with a compromise) Byrd understood the precedent he was setting before voting to change the rules with the bare majority (along with Leahy, Kennedy, Inouye, and Biden). Here is the money quote from Byrd:

The day may come, although I hope it will not be in my time, when we will be in the minority and it will take only 51 senators from the other side of the aisle to stop debate immediately, without one word, on some matter which we may consider vital to our states or to the nation."
4.29.2005 6:02pm
Reg (mail):
Fundamental reform of the Supreme Court. Make it a body of 20-30 judges serving 10-20 year terms balanced so every presidential term nominates the same number. Limit the number of clerks to one. Make review mandatory of circuit or states disagreeing with other circuits or states interpretation of federal law. Strip the court of jurisdiction to hear substantive due process cases(with nobody realizing that incorporation disappears as well then). Until Roe is gone and states allowed to make laws on moral issues free of Supreme Court veto, the process will never cease to be extremely controversial.

This would hopefully remedy the cult of personality that exists around the court and allow court members to feel able to go back to doing law rather than being at the forefront of every big issue playing superlegislature. Our law would also be a lot more constitutional and a lot less ad hoc.
4.29.2005 6:24pm
Ray Gardner (mail) (www):
I don't think that there is anything inherently weird about the politics. The GOP wants to bring as much as possible to fore before the most important confirmation hearings come along.

First of all of course, will be the battle for Chief Justice. Then close on the heels of that battle will be the next Justice and possibly even two justices before Bush's term is over.

So all of this has the effect of maybe changing some rules to bring the nomination hearings back to simply considering the judges qualifications while also inuring the public to all of this talk about judicial matters.
4.29.2005 6:47pm
Justin (mail) (www):
I'm so amused by this thread.

Do you think Kennedy's move leftwards is coincidental? Scalia's process of interpretation is unstable, politically (taken to its logical extreme, it would end the administrative state, and if it did that, people would be on the streets...we'd get either new judges or a new constitution). Conservatives have nominated 7 of the judges on the court...six of them are lifelong Republicans. And the right's still not happy.

Just like the left needs to learn a lesson the right learned a while ago, the right needs to learn that the job of courts is to turn the mess of the political system into workable law, and instead of raging on about them, they should be happy with their political victories.

Most Federalists I know at my law school are outraged about Bush's policies, yet they all voted for him because of the Court. Why? You've trusted Republicans with 7 of the last 9 nominations, and you DONT LIKE THESE judges. Instead of expecting the judiciary to slow the growth of federal power, end affirmative action, etc., suck it up and continue to win political battles for these ideas. My god, you have the Presidency, the Senate, the Hose, most state Legislatures, most Governorships. If you need the court to fight your political battles for you *now*, then conservativism is dead.

I know, I know, but look at the laws they've overturned. JDP. Really, if anybody here's life has changed cuz the state can no longer kill minors, please raise their hand. Most of what I've seen lately is outrage for the sake of outrage (not one screaming conservative trying to impeach Thomas for his dissent in Small, yet...I wonder why....)
4.29.2005 6:50pm
Reg (mail):
Justin, Republicans (not conservatives) nominated 7 of 9. I wouldn't call Bush I or Gerald Ford conservative. And Scalia's methodology is most stable; it assumes the law stays the same until amended. Also, the conservatives are winning political battles for their ideas as evidenced by the sucesses you stated. They are attempting to convert those successes into judicial reforms, which I think have not gone nearly far enough to make the judiciary more law abiding.
4.29.2005 7:09pm
HATCH (mail):
This is what i think - Since the construction of our judiciary , so many legal hairs have been split that it has become almost impossible to distinguish the boundaries that should be recognized by the judiciary pertaining to their injection of rightousness into statutes that are supposed to reflect rightousness as determined by the will of the people through their representatives.This "confusion of boundaries" is being used as a tool by many politicians to advance their parties agenda , regardless of its outcome.
4.29.2005 7:13pm
Ray Gardner (mail) (www):
Using Justin's logic of definition, the Republican party is truly the Big Tent party. Bush the elder and Gerald Ford as one poster has already pointed out, were moderately liberal Repubs, as their judicial nominees have proven, Arlen Specter, Lincoln Chaffee, Voinovich, Snowe and even McCain.
4.29.2005 7:42pm
Dilan Esper (mail) (www):
I doubt that Rehnquist is actually retiring. He has now returned to the bench for oral arguments, he participated in the inauguration ceremony and gave the oath to Bush, he votes in all cases where his vote matters, and he has authored several opinions. In other words, he looks like a Chief Justice who is recuperating from a serious illness and is easing back to his regular work schedule.

So why is everyone saying he is retiring? I think it has less to do with Rehnquist's actual intentions, and a lot more to do with (1) a media that wants to play up the potential confirmation fight, and (2) interest groups and political parties which can raise money and trash their opponents by playing up the supposedly looming confirmation fight and what it might lead to.

I wish everyone would just stop it until we get ANY indication that the man is actually retiring. He LOVES his job, and has made quite an effort to return to it despite a serious medical condition.
4.29.2005 8:00pm
Reg (mail):
What causes the politics is that a SC justice has more power than the pope, and about as little checking his authority. The media frenzy will be much greater for the next appointment than it was for Pope Benny.
4.29.2005 8:06pm
Beaver State (mail):
The phenomenon identified by Professor Kerr would seem to have the effect of causing judicial appointments to become more "moderate." Both sides are hyper-sensitive to any nominee with a method of constitutional interpretation that is easily identifiable with either "conservative" or "liberal" positions. As such, the party out of the White House is unlikely to permit an "ideological" appointment from the other side, so long as that party has the political power to stop it, i.e. 40 senators, as it now stands. President Bush, as well as future presidents who hold office while this hyper-sensitivity prevails, may be forced to settle for more moderate, or at least less easily identifiably ideological, judges and justices.

This isn't an original observation, I'm sure, but I wonder whether the effect of such a moderate trend might, in the long run, be to help dissipate some of the rancor over judicial appointments. More moderate judges are presumably less likely to write far-reaching opinions on either side, which tend to whip the "losing" side into a frenzy. Maybe that's what will happen if we "wait it out" as the good professor sees as the only solution.
4.29.2005 8:11pm
Eric Muller (mail) (www):
Orin, I'm puzzled by the evenhandedness with which your post paints the recent back-and-forth over the judiciary.

I see--and clearly--a branch of the right challenging the very notion of judicial review. Where is the countering broadside from the left, though? Have I missed something?

I understand that some on the left might be mischaracterizing the views of a handful of the President's nominees to keep them off the bench and to prime a debate over Supreme Court confirmations. But where is the left's equivalent to what Cornyn, DeLay, Vieira, and many others have been saying?
4.29.2005 8:24pm
"The phenomenon identified by Professor Kerr would seem to have the effect of causing judicial appointments to become more 'moderate.'"

Hey, how do you "moderately" interpret the Constitution? Your position is part of the problem which I cited earlier. The game is up, the public now understands what the Court is really doing--inserting their policy preferences under the guise of "interpretation." One can't "moderately" interpret the Constitution unless one is not really interpreting the document, but rather instituting personal preferences under the guise of "interpretation."
4.29.2005 8:58pm
ScottM (mail):
With respect to Orrin's point about the jockeying in the press over court-related issues, I agree that some of it on both sides is designed to gear up for a Supreme Court nomination. I also think that the Bush Administration and the Senate Republicans are firing it up for the political consequences. In the most recent elections, in part due to appellate court nominees who were not yet confirmed, the Republicans were able to paint Tom Daschle as an obstructionist. Without this, I doubt Daschle would have lost re-election.

I apologize if this posted more than once. Netscape has been most uncooperative for me today.

As for some of the comments... Stripping the Court of jurisdiction to hear certain cases merely because the majority disagree with certain decisions is one quick way to remove any idea that the judicial branch is an independent and co-equal branch of government. I also doubt that the "nuclear option" will come to fruition, though I have less conviction about this. I think the Republicans know too well that there may be a time when there is a Democratic President and 50 or 51 Democratic Senators, and it may be as early as 2008. Try to count 6 Republican Senators who would defect. An optimistic Democrat like me could do so - McCain, Snowe, Chaffee, Voinovich, Specter.... ok, only 5 so far.

I don't see President Bush nominating someone who can be painted as a "right wing whacko" to the bench when Chief Justice Rehnquist retires. Instead, I would expect someone who is reliably conservative but also proven to have bipartisan support. I know predictions have been made (Luttig, McConnell, Rogers, etc), and all three of those judges could probably be confirmed relatively easily. That may be because Rehnquist is reliably conservative. The fight will ensue if someone like Justice Stevens or Justice Ginsburg decided to retire. That would create some fireworks if it were to happen before 2008. (Just for kicks, my prediction is that Bush will nominate a dark-horse candidate, perhaps someone like Chief Judge Tacha, Tenth Circuit - could you imagine the political worth of nominating the first female CJ?).

The Dems would be wise to support a Chief Justice Scalia because then they may have some political capital to get a more moderate candidate to fill his seat. Bush would be wise to appoint a new CJ from outside of the court, if history is any guide. Compare the difficulty in Chief Justice Rehnquist's elevation or Justice Fortas' failed elevation with the relative ease of Chief Justice Burger's nomination.
4.29.2005 9:10pm
Reg (mail):
This is a bit off topic, but its so wrong I have to object:

"a branch of the right challenging the very notion of judicial review"

The right isn't challenging judicial review. Judicial review allows judges to strike laws that are incompatible with the constitution. What the {principled} right opposes is judicial review to strike down laws that are not incompatible with the constitution.

The Court's authority to exercise judicial review is unchallenged where the constitution is not clearly, or textualy, or in the original understanding of the Constitution, violated. Judicial review is premised on the idea of the Constitution being superior law and laws in conflict cannot be binding. The right believes that the Constitution gives a court exercising judicial review NO power to require more of a law than that it be compatible with the Constitution, as written and understood at ratification. Law does not change unless amended. Any other system of law would be bizarre and arbitrary.
4.29.2005 9:57pm
Eric Muller (mail) (www):
Reg, the vision of judicial review you that articulate neither (a) reflects the views of a very wide swath of the right, nor (b) reflects judicial review as it has been practiced since 1789.

Other than that, it's spot on.
4.29.2005 10:06pm
Dan Simon (www):
I see--and clearly--a branch of the right challenging the very notion of judicial review. Where is the countering broadside from the left, though? Have I missed something?

Eric, do you not consider Charles Schumer's open advocacy of political ideology as a criterion for confirming or rejecting judicial nominees, to be a radical departure?

It's true that it represents the culmination--the natural conclusion, if you will--of one philosophical approach to the role of the judiciary that has gained in popularity and legitimacy in legal circles in recent years. But then, the same could be said of the conservative position you're decrying. Why should Schumer's pronouncement be considered any more mainstream than those of Cornyn et al.?
4.29.2005 10:47pm
frankcross (mail):
I don't know if the open advocacy of political ideology is a radical departure, but it's use certainly is not. Ideology has been central to judicial appointments for decades, as documented in the political science literature. It is probably good that it is recognized.

But I really don't think the right is challenging judicial review, they just want to wield it in a conservative way. Which is fine, though it appalls me to see conservatives claim that they are the only true devotees of law, while liberals are ideological. Again, lots of political science research shows that both sides compromise the law to their ideology. Which is why you have this political combat over appointments.
4.29.2005 10:52pm
Al Maviva (mail):
Start from Scalia's premise that once the courts are fully politicized, nomination battles are solely about the political views of the nominees, assuming most nominees meet basic qualifications.

If the nominations process is thus focused on gaining political advantage, then you should think about the process as similar to a contentious negotiation. The opening position should be pretty far out, in order to leave plenty of room for compromise. If this assumption is correct, the Republicans should be ranting about the Belgian judges on the Supreme Court, and the Democrats should be ranting about how Eric Rudolph is on the Administration's short list. We're pretty close to that point right now.

The people who have it tough here, are the textualists of all political stripes - I'm thinking of the Breyers as much as the Scalias of the world. If you split the difference between a textually-oriented judge and somebody who is unmoored from the text - a Rheinhardt, for instance - you still have a judge who is mostly unmoored from the text. While the judge who is halfway text-oriented could be viewed as a good compromise candidate, textualists will realize it is in fact a serious loss.

Thus if the Republicans actually want to get a textualist nominee confirmed, their opening bargaining position should be in favor of a rigid form of interpretive literalism that makes Antonin Scalia's writings look like the work of an improv beat poet. If they can't do that, the next best thing is to run down the other side's notion of good judges, forcing them to move their opening bid little closer to the Republican position.
4.29.2005 11:01pm
Reg (mail):
the vision of judicial review you that articulate neither (a) reflects the views of a very wide swath of the right, nor (b) reflects judicial review as it has been practiced since 1789.

I think it does represent the swath of the intellectual right that is engaged in these discussions. Certainly there are many political hacks who don't know what they are talking about. (Tom Delay).
The historical study of Supreme Court law pre-1900 isn't very good in law school, but I haven't encountered any cases of judicial review before Dred Scott that could be said to invalidate a law that didn't fairly clearly violate the Constitution. I guess you could make that argument that Marbury was such a case, in that Marshall wasn't very charitable in construing the statute so as to avoid conflicting with the Constitution, but his interpretation of the Constitution is certainly right. Also, post 14th amendment cases did invalidate some southern practices as unconstitutional (no blacks on a jury, for example), but the court still was reluctant to interpret those amendments broadly, as in the Slaughterhouse cases.

I'd be extremely curious to hear about any cases in the first 100 years of the Court (other than Dred Scott) that engaged in judicial review to strike laws that weren't in violation of a clear constitutional limitation or requirement. If there is, then there might be a plausible argument that the Constituion was understood to give the Court such power, but I remain unconvinced.
4.29.2005 11:37pm
Former Kerr Student:
What are the odds in vegas that Rehnquist won't retire? I would bet even money on it. If he does retire, I would give the following odds on nominees for Chief:

John Roberts 1:2
Miguel Estrada: 10:1
Luttig: 2:1
Scalia: 5:3
Thomas: 8:1
Kennedy 100:1

4.29.2005 11:56pm
CharleyCarp (mail):
I'm not sure things are really weirder now than before. There have been plenty of episodes, and even if we weren't looking at a Rehnquist retirement, there would still be Frist's presidential aspirations, the need for Bush to follow through on campaign promises, and the anger/frustration over the Schiavo madness to drive the current situation.

The Admin could easily come up with conservative nominees who could get 80 votes in the Senate for any of the Circuit vacancies. Any of the Conspirators could do the same -- I'd wager no more than an hour per Circuit would be required to offer up 6 such nominees. The Admin could find a nominee for CJ who can get 90 votes, but would rather pick someone who will get 51 votes. Especially if it can paint some of the 49 as rascist, or anti-Christian, etc.
4.30.2005 12:56am
Greedy Clerk (mail):
Orin, I know you are trying to be fair, but I don't see how you can equate the "weird" actions among mainstream Republicans and mainstream Democrats. Tom Delay said it's outrageous to "do research on the Internet." He also stated that the judges involved in the Schiavo matter (who followed the law) "will pay for it." That Senator from Texas said there may be a connection between "judicial activism" and the horrific murder of federal judges. Moreover, the Justice Sunday thing basically implied that if you do not support every single Bush nominee then you are prejudiced against religion. To compare that to an article in the NY Times about the "Constitution in Exile" movement that may have exagerrated the hell out of something is simply absurd.

And by the way you also forgot to mention Ramesh Ponnuru's bizarre attack on Larry Tribe for an article in the Green Bag (!), and then when he was thoroughly debunked by Tom Goldstein he just called Goldstein "dumb" and called him names.

On a lot of issues there is blame to go around on both sides, but right now, the Republicans are out of control on judicial issues (and in fairness, I will give you that the Dems may be having chickens coming home to roost from their treatment of Bork and Thomas).
4.30.2005 1:13am
karl (mail):

With 10 of 13 appellate Courts controlled by Republican appointees and 78% of SCOTUS justices appointed by Repubicans, you can't honestly believe that the Courts are the last bastion of the left? There are more republicans, as a percentage, in the federal courts than in either house of Congress.

With that said, your fall back position, if unstated, is that you don't like the "activist Courts." I agree, Rehnquist's Court has been the most activist in history with a sharp disdain for precedent &constitutional provisions that don't fit with their ideology -- however, I suggest you support the overwhelming majority of its activist agenda such as its reading into the 11th Amendment lnaguage that was excluded, creating a new right for corporations not to have to pay punitives more than 3 times the actuals as a matter of constitutional law, curtailing Congress's power under the Commerce Clause, sharply curtailing habeas corpus and reading out of the Fourteenth Amendment language that was included. You don't cite the most activist opinions of the Court (such as Payne v. Tennessee) but rather cite the small handful of cases where the Court (in 3 of the 4 cases you cite) protected individuals against the power of the state to impose its will. The problem you seem to have is not that the Court is activist, but that the Court on occassion rules against your position.

As to the cases you cite let me draw on just two, Atkins &Simmons. Atkins/Simmons were commanded by precedent. Eighth Amendment jurisprudence has never, or at least since at least Wilkerson (1879) &Weems (1910), held that punishments permissible 1789 control interpretation of that amendment. Indeed, even assuming the most radical reading of that part of Simmons that seems to piss off the right the most, its reliance on international law, the Court merely held that international human rights norms that have been established to the point of being jus cogens inform Eighth Amendment jurisprudence. This sort of recognition of international law in the first one hundred years of the Court was common with it having done so literally dozens of times -- by one count over 100 times.

The real problem I suspect you have with the Atkins/Simmons line of cases is that they reached an outcome you don't like. I would also suspect you don't like the fact that international community views the execution of juvenile offenders as a serious human rights abuse. The international community however has steadfastly held that killing juvenile offenders is simply verbotten, and, more broadly, western christendom -- especially the industrialized western christian countries -- condemn all executions. These international trends, in the end, however, merely confirmed the movement against executing juvenile offenders.

You may be entitled to your own opinion, but you aren't entitled to your own facts. The fact is the Court in Atkins/Simmons merely upheld the rule of law.

- k

PS Its late here, forgive the typos, ranting &general abuse of the English language.
4.30.2005 5:59am
Jim Gust (mail):
I think it's all about Chief Justice Clarence Thomas.

That is the Democrats' nightmare, that Bush will elevate Thomas to the top spot, where by virtue of his relatively young age he will supervise the court for the next two decades. The Democrats will be uncomfortable in blocking the promotion of an African American to the top slot because they will not be able to state a reason that makes any sense to the voting public. But they will be compelled by their interest groups to try to block anyway, and when they lose they lose political capital.

Harry Reid floated a trial balloon on this on Meet The Press several months back when he slammed the poor quality of Thomas' opinions. He was hoping to close the door on Thomas promotion. When Reid was asked to point to the opinions that so offended him, he couldn't do it. When he did identify some "poor" opinions, they didn't support his criticism. This was all well documented at the time by James Taranto in OpinionJournal.

Elevating Thomas would have another important benefit for the Bush family. It would legitimize for all time the claim that Bush I made when the Thomas appointment to the Supreme Court was made, that he was the best available candidate. Liberals scoffed at that, but history has had a way of embarrassing them.

I think Thomas as Chief Justice would be politically savvy. That's why the political fight over the appointment is already well underway, the point of this thread. What effect his appointment would have on jurisprudence I don't know.
4.30.2005 11:38am
ScottM- lets say that republicans do not invoke the nuclear option because they are worried that in 08 there will be a demcorat controlled senate and a democrat in the white house. What do you think would happen the first time republicans tried to filibuster a liberal supreme court justice? Do you think that democrats would be consistent on their view of the importance of the filibuster? Of course not, just as both sides have flipped on whether every nominee deserves and up or down vote. It would be the democrats who would be then contemplating the use of the nuclear option and the donor base (read Dkos and Moveon) would be pushing hard to get it implemented. I don't think the argument that republicans should hold off invoking the nuclear option because they will want it in the future holds much water because there is no way for republicans to ensure that it would be there in the future when they needed it. Even getting the 60 votes on a compromise would not be binding on future sessions of the senate. And I sure don't think that republicans are willing to just trust that democrats wouldn't invoke the nuclear option, especially after they set the precedent for it in 1975.
4.30.2005 11:39am
Beaver State (mail):
I wouldn't be so sure a Clarence Thomas nomination to be CJ would disorient the dems. They certainly had no trouble trying to block his nomination to the Court in the first place. Moreover, the lefty base is absolutely convinced of two things regarding Justice Thomas: (1) that he doesn't really count as African American, because he's a conservative; and (2) that he is a bad justice, i.e. that his legal reasoning is poor. I can't tell you how many dems I've argued with about this. If it's Thomas for CJ, which might be a perfectly good thing to do, it'll be open war in the Senate. But then, that will be the case for any reasonably conservative nominee for any position on SCOTUS, CJ or otherwise.
4.30.2005 12:13pm
Paul Gowder (mail) (www):
As a liberal civil rights lawyer, I partly don't see what the fuss is about. At least in terms of replacing Rehnquist: how much worse can Bush do? (I say "worse," in this context, from a liberal political perspective and not as a personal shot at anyone.)

I mean, Rehnquist has voted in the most offensive ways possible to liberals every opportunity he has had. Rehnquist is, by some measures, more conservative than Scalia: Scalia has a set of firm legal principles that he seems to hold more closely to than his personal political views. (For example, I doubt he would, politically, have wanted to vote to reverse the conviction in Blakely.) Regardless of whether one agrees with those principles or not, one has to respect the stance. Rehnquist, on the other hand, simply votes to the right regardless of the legal principle involved.

Who could Bush find MORE eager to overturn the last vestiges of the work of the Warren Court (and even the Burger Court!) than Rehnquist? Really. Who could he appoint? I suppose he could dredge Bork back up, or Ashcroft or someone. But I doubt that taking the current court and replacing Rehnquist with Ashcroft would change the balance: O'Connor and Kennedy would still be the swing vote on most cases, there'd still be three reliable ultraconservative votes and four reliable libleral votes... so who cares?

So I'm really not scared of Rehnquist's replacement. We've been living that nightmare already.

Now, if O'Connor, or, God help us, Stevens retires or dies before 2009... then I'm scared.
4.30.2005 12:48pm
karl (mail):

Thomas for CJ would be a good to great move, and I am a fairly left of center lawyer.

With that said, Thomas was not qualified when elevated to the Court when Bush 41 did so. His first few years of work on the Court were horrid. His citation to a commercial outline in a case while sitting as a DC Appeals judge when every other authority went the other direction was laughable. He was too young &too inexperienceed. There were also incredibly damning rumors floating around about his work habits while on the Court of Appeals that never made it to light that also greatly troubled me about Thomas.

Thomas, for all the bad things that could be said about him then, is a dramatically different candidate now. He has found his own voice on the bench and has grown into the position. In recent terms the man has never met a case where wasn't afraid to burn the midnight oil to right a concurrence or dissent. He was too young then, he isn't now. He was too green then, he isn't now. He didn't have the breadth of knowledge/experience/wisdon that one hopes to see in a Justice, he defniitely has it now. Further, it has always been hard not to admire the sacrifices and hard work that took Clarence Thomas from his roots in Georgia to the Ivy League to the short list for CJ. With that said, I regularly disagree with him, and can think of only two areas of the law I come close to agreeing with him philosophically.

One thing that might get in the way of both Scalia and Thomas is the paper trail. Their paper trail would make nominating him CJ "uncomfortable" for the WH, especially in light of Apprendi &its progeny.

The only one on the short list for CJ / AJ that scares me as a lefty (Roberts, Estrada, Luttig, Scalia, Thomas, Wilkinson) is Luttig as he has written incredibly bad opinions in a number of cases in areas I care about (Civil &Crim law) and his personal behavior on &off the bench calls into serious question his temperment in criminal cases following his father's murder. Wilkinson sorta scares me but not nearly as much.

- k
4.30.2005 2:13pm
"Rehnquist, on the other hand, simply votes to the right regardless of the legal principle involved."

I would certainly say that Rehnquist is less principled than Scalia, but Scalia probably has the most explicit intrepretive philosophy in the history of the Court. I think where we see the differences between Rehnquist, Scalia, and Thomas is not so much in their basic interpretive philosophy but in how much they allow the doctrine of stare decisis to temper that philosophy. Rehnquist seems the most willing to temper his philosophy with stare decisis, then Scalia, and then Thomas. After years and years of fiercely criticizing Miranda, and to this day believing it was wrongly decided, the Chief Justice wrote the majority opinion to uphold Miranda. The principle of stability one out over principle. That doesn't mean their pure approach, unmoored to pragamatic principles such as stare decisis, are nor very similar.

"Now, if O'Connor, or, God help us, Stevens retires or dies before 2009... then I'm scared."

You mean you might actually have to convince the public of the rightness of your positions! Very scary indeed.
4.30.2005 3:22pm
NickM (mail) (www):
I think this is a result of the Information Age. Modern mass commnication, especially the Internet, makes it far easier to whip up a critical mass of activists on issues who, through their donor support (to candidates or organizations), letters/phone calls/faxes to legislators and media, volunteer activism, and other methods of grassroots or professional lobbying, frame the debate and pull legislators and the executive into siding publicly and loudly with their party's apparent base.

The same principle is holding true in other areas of politics. Consider the battle over John Bolton's confirmation. This position is for implementation of the President's policy before a body that most Americans consider (at best) unimportant to their daily lives. If a fight of this magnitude and extent will go on for that position (with the allegations against him being almost funny, when you consider the reputations as "bosses from hell" of some Senators), why would we expect anything less from the next selection to the U.S. Supreme Court or even a Court of Appeals selection?

4.30.2005 3:25pm
Thief (mail) (www):
If what many commenters say here is true, and that the Supreme Court is nothing more than a group of unelected judges enacting their personal policy preferences into law under the guise of "interpretation," then I dare to say that the next logical step would be a constitutional amendment establishing an elected federal judiciary. If the courts are to act like a political branch, they should be treated like a political branch.

Would this pose a lot of problems with judicial "campaigning," unqualified nominees, allegations of undue influence? Most certainly. The quality of the judiciary would take a major hit. But at least it would finally be a honest reflection of what both sides want the judiciary to be.
4.30.2005 6:33pm
Greedy Clerk (mail):
Do you think that democrats would be consistent on their view of the importance of the filibuster? Of course not

Puh-leeze. Yeah because there is sooo much precedent for Democratic Presidents nominating far-left Supreme Court Justices. Ruth Bader Ginsburg and Stephen Breyer are about as moderate as they come, and were both in fact recommended to President Clinton by the then-ranking minority member of the Senate Judiciary Committee, Orin Hatch. Could you imagine Bush nominating one (let alone two) Supreme Court Justices recommended to him by Charles Schumer or Pat Leahy?????? Didn't think so.

4.30.2005 7:26pm
Paul Gowder (mail) (www):
"You mean you might actually have to convince the public of the rightness of your positions! Very scary indeed."

You know, for a party that managed to eke out a lousy 51% of the vote against a milquetoast nonentity like John Kerry with an incumbent president in the middle of a war, Republicans talk a pretty big game about their "majority."
4.30.2005 7:52pm
"Puh-leeze. Yeah because there is sooo much precedent for Democratic Presidents nominating far-left Supreme Court Justices"

No, leave that to Republican presidents.
4.30.2005 7:56pm
John Skaggs (mail) (www):
"You know, for a party that managed to eke out a lousy 51% of the vote against a milquetoast nonentity like John Kerry"

I think if you check the history of presidential elections over the past 25yrs, you'll find 51% isn't so "lousy."

Let's assume however that 51% is a lousy margin for a president to win by, the reason the right feels it has a "mandate" from the people is because of House and Senate seats they picked up and that they now have the majority in 2 of the three branches of the fed.

In a perfect world where our federal judges based decisions on constitutional law and US precedent, this would mean the repulicans had the majority everywhere they could get it, with the Courts being a neutral protector of our constitutional rights.

Republicans are right in believing this should be their
big opportunity. And the Dems would be whining just as hard (and will be someday) if they had such a strong mandate from the people and couldn't deliver the goods because the opposition was filibustering everything, including judicial nominees.

Back to the original topic of today's post, I do find the political news of the day a little weird just because
these are topics that Americans generally could care less about, but every editorial and talk show hosts going on and on about it. You might expect readership and ratings to be down, but they doesn't seem to be.

While I think that, yes, the future need to replace Rehnquist is at the heart of this, there seems be something else driving it's popularity as a hot topic
among the general populace.

I think this battle over judicial nominees has become a symbolic line of scrimage between the left and right and that brewing in the back-field are the issues of pulling feeding tubes, hancuffing 5 yr olds, banning the Declaration of Independence from schools, media bias, border control, and on and on.

There is a major cultural war going on right now, with a lot of frustrated citizens (on both sides of the fence) who aren't sure where to direct their fear and anger.
I think the battles we are seeing on Capitol Hill have just become the focal point for all that cultural pressure.
4.30.2005 10:08pm
jb (mail):
The GOP would be nuts not to take the "nuclear" option. While they might hesitate for fear of regretting it if/when the Dems are majority, does anyone think that the Dems would decline to change the rules to their liking just because the GOP decided not to when they had the chance?
4.30.2005 11:44pm
Allan (mail):
The appointment of a Chief Justice may be less significant than the addition of a new member of the Court to replace Rehnquist. What is shocking is the nearly universal assumption that no nominee will have the support of sixty members of the Senate. That says a great deal about the polarization of our national politics.
5.1.2005 1:13am
Simon Spero (mail):
It may be 2005, but based on modern actuarial data and superior productivity, there's still time for Posner to have a full Supreme career.

If not doesn't Volokh, CJ, have a ring to it?
5.2.2005 3:40pm