The Supreme Court- What You See May Not be What you Get

In light of Justice O’Connor’s resignation there has been a lot of speculation and concern about who her replacement is going to be.

One of the things about this process that I really truly enjoy is that you really do not know what they will be like until they are confirmed and sitting on the bench. Yahoo! has a good story about this topic.

Here are some selections from the article.

WASHINGTON – Dwight D. Eisenhower called his Supreme Court appointments the “biggest damn fool mistake I ever made.”
Richard Nixon unwittingly named the future liberal author of
Roe v. Wade. George H.W. Bush’s choice now evokes a GOP grumble, “No more Souters!”

I think that this is something that you really cannot predict because it is hard to say how someone will vote once they reach the highest court of the land.

“There is a long history of those who didn’t turn out as expected,” said Tom Goldstein, a Washington lawyer who frequently argues before the high court. “It has something to do with their independence — justices, once they’re appointed, answering to nobody but themselves.”

And I think that it is clear that this happens with some frequency.

Noting the first President Bush’s choice of David H. Souter, who has since become a consistent vote in the court’s liberal bloc, some conservatives have said “Gonzales is Spanish for Souter.” Gonzales has dismissed the criticism, saying it is the president’s opinion that matters.

It is a very serious appointment because this is the ultimate in tenure.

Justices hold lifetime appointments and are charged with upholding the Constitution, a duty of political independence that requires them to strike down unlawful acts of Congress or the president. Still, there are legal gray areas that can bring cries of dismay from interest groups if justices don’t rule as anticipated.

I cannot remember a time in which a justice was removed, but there must be a mechanism in place so that a justice who is not meeting the grade can be taken out. For example, what happens if one of them was stricken by some disease that rendered them unable to perform their duties.

The court’s internal dynamics also play a factor. Justices craft their opinions with an eye toward attracting at least a five-vote majority. If they adopt a hard-line position on principle, justices risk alienating colleagues and writing lonely dissents for years.

“Generally speaking, nominees who have evolved in unanticipated ways did not have federal court backgrounds,” said David Garrow, a Supreme Court historian at Emory University. “It’s a response to the pressures of Washington, with the Supreme Court presenting legal questions they did not have to confront before.”

They include Chief Justice Earl Warren and Justice William Brennan, two Eisenhower appointees who from the 1950s to the 1970s led the court in assaulting racial segregation and expanding individual rights against the government. Warren was a former Republican governor of California; Brennan, a New Jersey state court judge, was coveted partly as a Catholic.

Eisenhower later said the two were among his biggest presidential mistakes.

It is hard to imagine what the US would look like without the Warren court.

Other “disappointments,” according to historians, were Harry Blackmun, Nixon’s law-and-order choice who penned the landmark Roe v. Wade decision making abortion a constitutional right. He later opposed the death penalty. Souter’s primary previous experience was on state courts.

The Supreme Court currently splits 5-4 on polarizing social issues such as the death penalty, even though seven of the nine justices were named by Republican presidents. That’s because two of them — Souter and John Paul Stevens, who was chosen by President Gerald Ford — typically vote with the two Democratic appointees.

O’Connor, the first female justice, and Anthony Kennedy, President Reagan’s compromise choice after the doomed bid of strong conservative Robert Bork, also have drifted left in recent years, making the conservative majority a fragile one.

And now for speculation on why O’Connor left.

Arthur Hellman, a constitutional law expert at the University of Pittsburgh, said he believes O’Connor might have been partly pushed away by the fiery conservative rhetoric of Justice
Antonin Scalia, whom the president has cited as the justice he most admires.

A new justice in the strident Scalia mold might have the same moderating effect on Kennedy that Scalia had on O’Connor, Hellman said.

“I think you have a number of justices who, after serving some time on the court, say, ‘I like to be in the middle. I like to be in the balance,'” he said. “If you see an extreme on one side, you might recoil and it pushes you into the other camp.”

For Bush, the lessons of judicial nominees might mean he chooses a conservative with an extensive paper trail in federal court who won’t alienate his or her colleagues and who could also avoid a bruising confirmation battle.

It could also mean that Bush might have to balance the benefits of a historical first, such as the groundbreaking selection of a Hispanic justice, against a firm conservative ideology.

Still, that might not be enough. Speaking three months ago at a university in Towson, Md., O’Connor said perhaps only time could tell how a prospective justice turns out.

“I frankly do not know how anyone going on the court would be able to predict the thousands of issues that come before the court,” she said. “I myself couldn’t have told President Reagan what I would do on all these issues, because I hadn’t faced them.”

Now we shall have to wait and see.

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  1. Jack's Shack July 6, 2005 at 1:27 pm

    Bork is still a piece of work.

  2. ClooJew July 6, 2005 at 12:48 am

    Did you see Bork’s piece in today’s WSJ. Maybe it’s not so bad that he got Borked after all, lulei demistaina.

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