Dispatches from the Creation Wars

John Paul Stevens to Retire?

Human Events is reporting from a supposedly credible source that Justice Stevens is in grave health and is expected to retire from the Supreme Court before the end of the year. Naturally, they are using this as a warning to conservatives about the importance of voting for Republicans this year:

Normally, this news might be too ghoulish to repeat publicly. Nevertheless, with the election just days away, it is news that should be considered. It points out what could be a once-in-a-lifetime chance for the 20-year movement to recast the court with a constitutionalist majority. It would be a cruel twist indeed for conservatives to “teach Republicans a lesson” next Tuesday, only to be taught a lesson themselves within months when new Senate Judiciary Chairman Patrick Leahy (D.-Vt.) leads a Democratic majority against the most important Supreme Court nominee in decades. Conservatives whose mantra is “no more Souters” should bear in mind Robert Bork’s fate after the Senate changed from Republican to Democratic hands in 1986.


First of all, the notion that Bork was unfairly denied a spot on the Supreme Court, which is all but a mantra for the right these days, is utter nonsense. Bork was and is a first class nut with some absolutely bizarre positions on constitutional law, and most of what he has written since being rejected for the court in 1986 proves that beyond a shadow of a doubt. Despite his pretenses, Bork is not a “strict constructionist” or an “originalist” at all, he is a reactionary whose views on constitutional interpretation are too absurd to be taken seriously.

Now, having another conservative on the bench wouldn’t be the end of the world. There are some cases that would go the other way and be decided correctly. Put another conservative on the bench with the current configuration, for example, and the Kelo decision, one of the worst rulings in the history of the court, probably goes the other way – the right way.

But in a myriad of other cases, particularly those involving police power, free speech, executive branch authority, and church/state questions, the outcomes would likely be decidedly worse. On balance, I would much rather have a Souter or an O’Connor (even with her schizophrenic, split the baby jurisprudence) on the bench than another Scalia, much less a Bork. And if the Democrats have control of the Senate, it’s a lot less likely that we get an extremist on the court.

Comments

  1. #1 mess
    November 6, 2006

    Ed,

    This statement is not true

    And if the Democrats have control of the Senate, it’s a lot less likely that we get an extremist on the court.

    Don’t you know anyything? Only libral judges can be extreamists and activists. Conservative judges are representing the will of the people.

  2. #2 tacitus
    November 6, 2006

    STACLU was also trying to spread the rumour this weekend that the Democratic senate candidates had already pledged to filibuster Bush’s nominee to replace Stevens.

  3. #3 Rob Knop
    November 6, 2006

    If we have a Democratic Congress, and Bush “stays the course,” it’s likely we don’t get anybody new on the bench….

    Which might be OK. Let’s try again in 2008.

  4. #4 Scott
    November 6, 2006

    So Harriet might just get another chance, ey?

    I wonder how accurate this might be or if it is simply an attempt to scare up the base into voting/voting right. Afterall the nomination of a justice to SCOTUS is like tying abortion, gay marriage, prayer in school, and all that other stuff up in one neat and tidy little message.

  5. #5 Joe Shelby
    November 6, 2006

    Actually, Harriet was exactly what came into mind. In politics, it as it is said comes down to “framing the debate”.

    By appointing the utterly unqualified Harriet Miers, it made the nomination of Alito a question not of attitude, but of qualifications. The Democrats (and reasonable Republicans) had put up such a wall against Miers for her lack of qualifications that no such similar argument could be made for Alito. The debate had been changed and there was no time to change it back to the more relevant issue.

    If Alito had been nominated without the Miers controversy, the Senate might have looked more directly at his record and his attitudes rather than “merely” his qualifications and might have better questioned his record and attitudes to executive abuses of power.

  6. #6 Joe Shelby
    November 6, 2006

    Ok, somehow that first sentence came out more clearly formed in my head than what got typed. (comes from having arrived 2 hours late into 1am from a delayed flight from North Carolina). Sorry.

    Now I’m too tired to remember what was the wording I actually wanted…

  7. #7 raj
    November 6, 2006

    IIRC, Human Events is a Moonie rag. I’d put as much credence in that rag as I would in the Washington Times.

  8. #8 Russell
    November 6, 2006

    Like many people, I wish that Kelo had been differently decided. But I’m curious how judicial conservatives would justify that? The notion that such issues are entirely in the purview of each state has been established jurisprudence since Barron v. Baltimore, 1833:

    We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.

    Now, that was written before the 14th amendment. As a liberal, I am quite content with the notion that the elements of the Bill of Rights securing protection of liberty and property against the federal government should be incorporated into the 14th amendment guarantee of due process. Kelo was an excellent opportunity for the court to incorporate the “public use” and “just compensation” elements. It is a shame it did not do so.

    But that is a distinctly liberal point of view. Conservatives generally seem adverse to such incorporation. So what is their dislike about Kelo?

  9. #9 Ed Brayton
    November 6, 2006

    Russell-

    I don’t think any conservative on the court is opposed to incorporation of most of the Bill of Rights via the 14th amendment. The closest is Justice Thomas, who opposes the incorporation of the establishment clause, but no other provision that I am aware of. Conservatives and liberals alike favor selective incorporation, which some minor disputes over which specific items should or shouldn’t be incorporated, and how to incorporate them. The only ones who disagree with that are people like me, liberal originalists, who believe that the privileges and immunities clause incorporates not only the entire Bill of Rights but the broader natural rights concepts inherent in the Declaration of Independence, and the really looney right (southern nationalists, in particular) who oppose incorporation completely. But no one on the Court today represents either of those groups. Conservatives dislike of Kelo stems from the obvious originalist reading of the 5th amendment, which requires that takings be done for “public use”, not for private use for some amorphous public benefit (which is the same reason I dislike Kelo).

  10. #10 Keanus
    November 6, 2006

    Raj, actually Human Events was originally (back in the 1950′s) the house organ of the John Birch Society, a virulently anti-communist MaCarthyite group working out of all places Massachhusetts. That society has been replaced by the various religious right groups of the last 30+ years.

    As for Stevens’s demise, such rumors will surface every year, especially around election time, they being one more scare tactic to encourage the base to vote. This rumor may or may not be true, but it should be viewed with more than the usual skepticism, given the source. It’s claim to validity is about as good as the assertions in Republican attack ads.

  11. #11 Grumpy
    November 6, 2006

    John Paul Stevens should quit the Supreme Court and go back to what he was best at: Led Zeppelin.

  12. #12 eric bloodaxe
    November 6, 2006

    Always assuming the Republicans don’t steal the election.

  13. #13 Zarquon
    November 6, 2006

    Grumpy, you’re thinking of John Paul Sartre.

  14. #14 raj
    November 7, 2006

    Keanus | November 6, 2006 05:26 PM

    Raj, actually Human Events was originally (back in the 1950′s) the house organ of the John Birch Society, a virulently anti-communist MaCarthyite group working out of all places Massachhusetts.

    Not according to the Wikipedia entry for the JBS. That entry did indicate that the JBS had several house organs, but HE was not among them.

    On the other hand, I was unable to verify that HE was a Moonie publication.

    Ed Brayton | November 6, 2006 04:45 PM

    Regarding Kelo, I didn’t care for the decision any more than you did, but I suspect, although I cannot prove, that the Supreme Court decided the case the way it did largely because it wanted to avoid getting into a quagmire of determining just what was and was not a “public purpose” that would permit a “taking” by a government at a local level. Essentially, the Court left it up to the constitutions and statutes of the local and state governments to determine the matter, with the only federal issue being whether the compensation for the taking was “just.”

  15. #15 Roger Rabbitt
    November 11, 2006

    I’m pretty flexible on whether we should interpret the 5th as allowing only “public use” or a more general “public purpose”. But the USSC needs to be consistent. O’Connor, who dissented in Kelo, wrote the unanimous opinion in Hawaii Housing Authority v. Midkiff, where private property was taken from some private owners, and turned over to others.

    That kind of flip-flop is appropriate for legislators, but not for Supreme Court justices.

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