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.