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.

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.

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.

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 moveon.org 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."

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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

MJ:

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.

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.

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.

"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.

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.

"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."

"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.

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.