"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Friday, July 01, 2005

It Begins

The long-anticipated resignation of Supreme Court Justice Sandra Day O'Connor begins what will surely be a time of great delight for the American press. O'Connor, known as a moderate conservative, was seen as the "swing vote" on the court on issues such as abortion, the death penalty, and church-state separation. In the case of abortion, this description is decidedly inaccurate given that the Court has been 6-3 in favor of retaining Rowe v. Wade since the Clinton-era changes in membership. Nonetheless, it is clear that the Senate confirmation process will in no way resemble the collegial, reasoned debate for which President Bush called in his speech this morning. The characterization of O'Connor as a swing vote ensures that the fight over the nature of her successor will be furious and venemous, barring some miracle.

President Bush has long promised that he will fill federal court and Supreme Court vacancies with judges who "strictly and faithfully interpret the law," and he is certainly not one to shy away from a fight. He will get one, all right.

One interesting angle I should like to point out is that Justice O'Connor's resignation letter states that her retirement is to be "effective upon the nomination and confirmation of my successor." That means that if the Senate receives a nominee from the President and does not vote on the nomination before the Court's next session begins on the first Monday in October, O'Connor will likely return to the bench, prevented by senatorial inaction from retiring and taking care of her ailing husband.

At that point, strong pressure will be on the Senate to bring the matter to a vote, given that Justice O'Connor will have given the President and Senate an entire summer to find a successor. For the pressure to be on the Senate, however, the President will have to nominate someone within the next couple of weeks, and if that person is not confirmed quickly, he or she will be a very public pinata throughout August, a month when nothing else usually happens in Washington, D.C.

That will be a delight for the press, which thrives on controversy, and misery for everybody else.

Also important are racial, ethnic, and gender factors, which have become an increasing consideration in these decisions.

Hence, some speculation. The best course for the President, it would appear, would be to nominate an African-American, Asian, or Hispanic female with no track record on abortion and a strong individual-rights record on economic matters. Such a person would appeal to the Right while blunting some of the potential criticism from the Left. Perhaps nominating someone who has never served as a judge would be a good idea, to reduce the paper trail further. The President should thereafter continually stress that he has acted quickly and that the Senate should do so also, while performing all due diligence, in tribute to the fine public service Justice O'Connor has rendered the nation and in fairness to the nominee. Above all, the President must make clear his resolve to stand behind his nominee until the full Senate votes on confirmation. At that point, the pressure will be on the Senate to decide the matter and allow Justice O'Connor to retire from public life and enjoy her last years with her husband.

If all of this sounds rather cynical, I may perhaps be forgiven given that the federal nomination and confirmation process of the past decade has certainly given ample motivation for such cynicism.


Anonymous said...

How about, given the deep and bitter political split that our nation has undergone, the president pick a moderate? You know, "compromoise". Yeah right.

James Elliott said...

President Bush is being facetious when he states that he is interested in judges who will "strictly and faithfully yadda yadda yadda." He has long stated that he is in favor of justices in the Scalia-Thomas mold. Scalia and Thomas operate on a strict ideological basis, not judicial philosophy. Both have shown a willingness to shove aside federalism or constructivism when an interpretationist decision fits the need of their ideology.

O'Connor, at least, had a strong streak of reverence for jurisprudence and precedent.

Nominating someone who has never been a judge is a horrible idea. One of the worst trends in American jurisprudence has been the advent of judges as a profession. Judges become judges at younger and younger ages, nominated by committees stacked with politically and ideologically committed lawyers. It used to be that the average age for a judge was the mid-to-late fifties. Their judgeship was a second career after a long tenure as a practicing lawyer, and often with a stint in academia. This is sadly no longer the case.

A Supreme Court Justice needs a long history as a lawyer, judge, and preferably an academic. The President's nomination can expect, at minimum, a twenty year career barring catastrophe in a position of ultimate judicial authority. The appointee should be operating on a sound basis of philosophy and experience, and his or her selection should reflect a need that will transcend political party dominance by sheer dint of years. To make that selection based on political expedience is irresponsible and destructive.