My colleague Nelson Lund says it is impossible to nominate "another O'Connor" to replace O'Connor:
First, even if one assumed the ideal replacement for Justice O'Connor would be another Justice O'Connor, the president could not possibly identify such an individual. Justice O'Connor's generally cautious and pragmatic approach to law means many of her significant votes depended on highly personal judgments about the likely practical effects of court decisions. Picking another pragmatist would actually guarantee we will not get the same judgments we got from Justice O'Connor. Every pragmatist is different.
He also says it would be unwise to try to nominate another O'Connor:
Second, Supreme Court candidates perceived as moderate, or even moderately conservative, almost always turn out to be leftists. History is filled with illustrations, from Harry Blackmun and John Paul Stevens to David Souter. If President Bush tries to find "another O'Connor," we will almost certainly end up with someone much more like "another Souter."
I wonder why. Perhaps it is because of two factors. First, judges have a very socially liberal peer group. Bill Clinton beat the elder George Bush by only 6 percentage points in 1992, but defeated him by a landslide (almost a 2-to-1 margin) among lawyers.
Second, Supreme Court justices get so much more press coverage than lower court judges, making their predominantly liberal peer group more aware of any decisions that deviate from liberal orthodoxy. That publicity increases the social cost to them of rendering non-political or conservative decisions. That may be why "stealth" nominees like Souter end up quickly becoming liberals after being appointed to the Supreme Court.
Judge Silberman of the D.C. Circuit has given this phenomenon a name: the Greenhouse Effect, named after New York Times Supreme Court reporter Linda Greenhouse.
Justices who have evolved to the left, such as O'Connor and Souter, have received fawning coverage from the Times after doing so. By contrast, the Times ran an editorial denouncing Justice White when he announced his retirement after three decades of service on the Supreme Court.
http://www.latimes.com/news/opinion/
commentary/la-oe-cass24sep24,0,983371.
story?coll=la-news-comment-opinions
"Invoking the Clinton Precedent
By Ronald A. Cass
AS WE AWAIT President Bush's nominee to replace Supreme Court Justice Sandra Day O'Connor, all the talk is about precedent. Roe vs. Wade: What does a judge do when a precedent is based on shaky legal ground? The Ginsburg Precedent: How much does a nominee have to answer, and how do you draw the line? Yet the most important precedent hasn't been mentioned: the Clinton Precedent.
To refresh our memories, President Clinton had a chance to make two appointments to the Supreme Court. The first came with the retirement of Justice Byron White, a conservative who cast one of the two votes against Roe vs. Wade. And just one year before his retirement, White, joining three other justices, dissented in the 5-4 pro-abortion decision in Planned Parenthood of Southeastern Pennsylvania vs. Casey.
With the court so closely divided, what did Clinton do to preserve the balance? Did he replace White with another conservative, someone equally clear that there is no constitutional protection for abortion? He chose the former general counsel of the American Civil Liberties Union, a leading liberal law scholar whose special interest was women's rights: Ruth Bader Ginsburg. Any question how close she was going to be to White?
The president did what presidents always do. He picked someone he thought would be a good justice according to his own views. He didn't worry about preserving the balance on the court, and he certainly didn't worry about maintaining the court's division over abortion.
With a 56-44 Democratic majority in the Senate, Clinton didn't worry about much other than replacing White with someone his party approved of and the GOP would credit as sufficiently accomplished to do the job. Ginsburg, the strongly pro-choice liberal judge and former law professor, fit that bill. Whether or not you like her positions on legal issues, Ginsburg is a smart, skillful lawyer and judge. And she garnered 96 of 99 votes cast on her confirmation — including the overwhelming majority of pro-life Republicans.
Of course, today, with a 55-45 Republican majority in the Senate and a Republican in the White House, liberal Democrats are singing a different tune. Now, they say, we need the president to be sensitive to keeping the court as it is, to preserving the division on issues such as abortion.
It's understandable that liberal Democrats would care about the Supreme Court. For more than half a century, the court has been pivotal in reducing the authority of the states, increasing the power of the federal government, eroding protections of property rights, tilting the legal balance from favoring religious worship to favoring atheism, and finding rights in the Constitution that no creative thinker in the nation's first 175 years ever imagined.
Much of the liberal political agenda that could not muster support at the polls has been achieved through the courts. Would voters sanction government taking private property from one person to give to another? Would they approve banning the Pledge of Allegiance as an unconstitutional intrusion of God into our public life?
Unless courts keep altering legal rules to facilitate liberal causes, Democrats label judges conservative activists, and view anyone who supports them as wanting to take us back to the days of segregated lunch counters and back-alley abortions. It's a mantra that worked against Robert Bork, so why not use it against everyone else?
It's time to return to the understanding that presidents get to pick the judges they want, as long as they're qualified for the job, and that senators are voting not on whether a nominee conforms to their preferences but on whether he or she shows the competence and temperament necessary to the judicial role. It's time to recognize the Clinton Precedent as the benchmark for what presidents do."
Someone should ask them now if the like Scalia and Thomas, so that down the road we know what the argument will be when they retire. Will we then similarly be told that these two have been acceptable, but more conservative replacements are not? (This may sound farfetched, but if conservatives really reverse the liberal tide over the coming decades, it is something even liberals would do well to consider now, is it not?)
Blackmun, Souter and Stevens are certainly left of center (this hardly means they are the same brand of left of center or that being left of center is even a bad thing). Calling them leftists certainly isn't that great a crime, because we're hardly suggesting Scalia and Thomas are Oaskeshotteans when we call them right wing/conservatives.
And for someone who claims to not take Prof. Zwickyi seriously, you certainly jumped on the opportunity to comment on his post and jump all over his choice of words.
What is the goal here? Partisan advantage? Unimpeded expedience in the criminal justice system? A cultural and sexual counter-revolution?
I am not a lawyer, but I do read some of the more famous or newsworthy opinions, and I am not particularly impressed, either by the work of historically important justices or much of the current crop. The most serious problem, which I personally see, is that so little attention has been paid to building a defensible system of constitutional interpretation, abstract from substantive results. "Magister" means "teacher", but the Justices do not seem to know that their job is to continuously teach the People, what their Constitution means.
Thomas seems to me to think he has such a philosophy, but it is so radical, and so callous, and often obnoxious, that I shudder at the prospect that he should ever become anymore than a minority of one. Scalia's formalism has some appeal, but he often throws it aside, to vote purely visceral, personal preferences; Scalia is way too arrogant and volatile; he thinks he has strong principles, but he's wrong; he has strong passions, which are far more chaotic.
I won't continue opining on individual justices, because it would result in too long a post, but the more "pragmatic" justices often seem to think they are Congressmen marking up a bill, or bureaucrats in a regulatory agency, drawing up detailed rules. There seems to be an unavoidable necessity for doing that work, but I can see why many fear that it devolves too much into "judicial activism."
Would voters sanction government taking private property from one person to give to another?
The answer of course is not "yes" but "hell yes". As soon as voters discover that they can take other peoples property with the ballot box they go wild. (I am paraphrasing a famous quote that I am to lazy to google) That is why the founding fathers put in the 5th amendment.
Tell it to Susette Kelo.
History illustrates--all the way back to Blackmun? (And those guys, leftists? Words fail.) I suspect this leftward-drifting tendency is specific to the last few decades, not an ironclad law for lifetime judges.
The fact that a liberal scholar as widely noticed (I refuse to term him "influential") as Sunstein advocates "judicial minimalism" suggests to me that the leftward-pressing forces could be passing us by.
To anonymous coward, the fact that Sunstein advocates 'judicial minimalism' doesn't necessarily mean 'leftward' forces have passed us by. While Sunstein advocates minimalism and even seems to praise bipartisan restraint, the important question is whether he does so at all times. For example, if some of the famous Warren Era and 3 Muskateer era decisions were reversed, would most minimalists still stay true to their philosophy? Or is this claim to minimalism just a safe position considering that many arguably 'perfectionist' decisions have already became long standing precedent? It's possible the leftward forces haven't passed us by, but instead have already been dominating for a long time.
Well, he writes on controversial subjects. If you don't know the answer to this question, you probably have no idea of the kind of things he as written over his career, nor of the outcome of some of his decisions as judge (over-turning partial birth abortion bans and referring to the doctors who perform them as "heros", for one).
If you ask Bork, he'll make the point that judges don't necessarily "go left" so much as "go elite." That is, they adopt the views of the elite class of opinion makers of Washington culture. Right now those people are almost unanimously very liberal/left. But in the early part of the century (goes Bork's arguments) the "elite" were not cultural or academic authorities but rather businessmen. Hence, you ended up with what are now considered activist laissez-faire decisions like Lochner.
President Bush will not nominate Posner, will not even consider doing so, for two reasons:
1) He would never be confirmed. Posner has written many controversial articles because he has an original, inquiring mind and he is willing to challenge orthodoxies. The petty minds in the Senate, both Democrats and Republicans, would never tolerate this.
2) He is unpredictable. While generally liberterian in outlook, I think no one would be able to predict how Posner would vote on social hot button cases. Overruling Roe v. Wade? Who knows?
Like Posner, but a tad less controversial, would be Judge Easterbrook, another U. Chicago antitrust law professor now on the 7th Cir. For my money, he's the second best judge in the country. If you've never read an Easterbrook opinion, do so, and try to imagine him writing Supreme Court opinions. What a joy! Clear statements, logical reasoning, no phony balancing tests... Again, not a chance of him being nominated or confirmed.
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