Bush and the Supreme Court

Jon Rowe predicts that Bush will have as many as 3 appointments to the Supreme Court in his second term, and most court-watchers would agree. One seems a bare minimum, two seems quite likely and three is very possible. Much of the focus has been on Chief Justice Rehnquist lately, given his ongoing health problems, but with John Paul Stevens at 84 years old and Sandra Day O'Connor not far behind, those two are also likely to be retiring soon. The court has an interesting split at the moment, with a predominantly conservative block (Rehnquist, Scalia and Thomas), a predominantly liberal block (Stevens, Ginsburg, Breyer) and a middle of the road block that swings both ways depending on the case (Kennedy, O'Connor and Souter). Replacing Rehnquist with another conservative justice would obviously not upset the current balance much, but if either Stevens or O'Connor were replaced with someone significantly more conservative, it could have a serious impact on the court, which has routinely divided 5-4 on key cases.

Over the next few weeks, I intend to look a little deeper at some of the names that have been floated as possible nominees in Bush's second term and write about them. Some court watchers believe that Bush will name the first hispanic to the court, either Miguel Estrada or Alberto Gonzales. Gonzales is Bush's chief legal counsel in the White House, and was previously a justice on the Texas Supreme Court. Part of his current job is preparing a list of potential nominees for the Supreme Court, but he has been mum on whether his own name is on that list. One difficulty with his nomination might be that his name was linked to the mini-scandal involving the DOJ memos on allowing torture in Iraq and the war on terror.

Arlen Specter, likely to be the chairman of the Senate Judiciary Committee for the next few years and a Republican, has already said publicly that he hopes Bush will not try to push through nominees who are too conservative, which has led to a great hue and cry among conservatives. Specter is a moderate Republican, not an ideological conservative, but he has been against conservative nominees only when they are far beyond the pale. He led the fight for Clarence Thomas' confirmation, for example, but famously opposed the confirmation of Robert Bork. Apparently that's enough to make him the Antichrist to the Free Republic crowd, who evidently remain clueless about just how bizarre Bork's legal theories are.

One potential nominee that Jon Rowe mentions is Michael McConnell, now a 10th circuit appeals court judge. Jon seems to think that McConnell would be a good choice, but I'm not so sure. I'm not nearly as familiar with his work as I am with Bork's, but I do know that McConnell's views on church and state issues are considerably opposed to mine in many instances. He is the first one I will be looking at over the next few weeks (and thank you to Dan Ray for sending me one of McConnell's law review articles to look at). I'm not ready to come out against him at this point, as I want to look at his writings before I make that determination. Groups like Americans United for Separation of Church and State and People for the American Way were quite opposed to his 10th circuit nomination, but I'd rather read his writings first hand than have it filtered through them. I've already found one instance in which a quote commonly attributed to him by those groups is possibly out of context (possibly because the context does not make clear whether he actually takes the position as stated or whether he is using it as an example of the kinds of arguments one often hears). Jon points out that McConnell had the support of a very broad range of legal scholars, including liberal scholars like Akhil Amar, but Amar's endorsement of McConnell is based at least partly on the fact that McConnell was nominated for a lower court where he would be bound by Supreme Court precedent. Amar points out that a nomination for the Supreme Court would be a different situation and would make the arguments of his opponents more compelling, though it is entirely possible that he might still endorse him for that position as well.

Anyway, I intend to write about this quite a bit in the coming weeks, so those of you who find con law boring might wanna find a new blog to read. It should also lead to some interesting exchanges with Jon and with Timothy Sandefur, whose views on that subject are always enormously valuable, and I hope Dan Ray will jump in with his views in the comment section or as a guest blogger, if he can find the time.

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Thanks -- where did you find Amar's statement where he clarified his endorsement of McConnell?

BTW: I think a useful strategy that Bush could employ -- he may not want to, and his religious conservative base may not want him to -- is perhaps to compromise with alternate ideological appointments, i.e., if the Senate confirms a hard conservative appointment, then send up a more moderate one the next time. If McConnell or a Estrada (both would overrule Roe I think) get nominated and confirmed, then send up say a Posner (more socially liberal) next.

This would be done a lot easier if you could appoint Justices in 2s, which would only be the case if 2 Justices leave at the same time (possible, but not likley: Rehnquist and Stevens would both have to drop dead, or retire at the same time).

But the point is -- on the one hand, right-wing ideologues want Bush to send up a Justice Scalia every time there is a vacancy. And left-wing ideologues want the Senate to reject or filibuster every single prospect who would vote to overturn Roe. Some type of compromise seems necessary. I think Bush would be willing to do it, but, his first pro-Roe nomination is going to drive his base nuts.

I wasn't in the past interested in Con Law. But you write about it well and have stirred my interest, and perhaps in the past I've been taking it for granted that our Judges would err on the side of the Bill of Rights.

Jon-
The statement from Amar can be found here. I don't know that I'd call it clarifying his endorsement so much as defending it. He makes the following point:

Mooney ignores one obvious difference between McConnell and Bork: Bork was nominated for the Supreme Court, a position raising very different stakes. (As we have explained before, many Senators quite comfortable with a Judge Bork on the DC Circuit, had legitimate reservations about a Justice Bork who would be able to alter the trajectory of Supreme Court jurisprudence; again, there is a key difference between a Justice who helps create Supreme Court precedent and a lower court judge who must follow high court precedent.)

This doesn't necessarly imply that they (this article was written by both Amar brothers together) would have reservations about McConnell if he were nominated for the Supreme Court, but it is at least part of their reasoning and they spend a good bit of time in the article making clear that they think McConnell would follow precedent while presiding over a lower court regardless of his views. But they also note that on the Supreme Court, there is no such restraint and they can vote as they wish.
Here's what I find funny about the whole confirmation process, the vacuousness of the "I don't have any litmus tests" position. Does anyone really believe that one of the primary things that Bush is going to consider when nominating someone for the court is their position on abortion? Does anyone really believe that it's not equally important to the Democrats when deciding whether to confirm a nominee? Of course not. So everyone continues with this little fiction of "I just want judges who interpret the law rather than make it" - which is a basically meaningless statement - and no one bothers to puncture this fantasy.
The same is true with this whole fiction about "judicial activism", a term that, in a political context, means nothing more than "they don't rule the way we want them to". But it's the favorite catchphrase of the clueless and no one bothers to expose it as the fiction that it is. It's all quite silly, this empty posturing that goes on, and the uproar over Arlen Specter is a textbook example of it.

This is a great topic, and I look forward to reading and participating in future entries and discussions. The issue of federal court appointments was probably the biggest "sleeper" issue of this election cycle. Pollsters asked voters what issues brought them out to vote (e.g., the economy, the war on terror, "morals") but federal court appointments rarely made the polling lists. Why is this issue so compelling? Because federal court appointments (particularly at the Supreme Court and Circuit court levels, but don't overlook the district court) are an integral part of the neoconservative agenda to entrench social and economic policies well beyond the term of any sitting politician. Judicial policy entrenchment is not a particularly efficient model, but it is remarkably effective. I hasten to add that the neocons were not, of course, the first to think of this. Judicial entrenchment is a tried-and-true method, one that is as old as our judiciary itself, and one that has been, and continues to be, practiced by politicians of all stripes.

For those who are new to the issue and would like some foundation, let me suggest a few resources. Professor Larry Solum, at his Legal Theory Blog, has an excellent series of posts on the subject of the judicial confirmation wars. In particular, I recommend Understanding the Confirmation Wars: The Role of Political Ideology and Judicial Philosophy and Breaking the Deadlock: Reflections on the Confirmation Wars. Professor Solum is a self-avowed neoformalist, meaning that he advocates a formal method of constitutional interpretation (e.g., resort to text, structure, historical meaning, and the like to determine the meaning of the Constitution). I always find Professor Solum's writings to be fair, balanced, and extremely informative.

For a good background on partisan entrenchment, I suggest Jack Balkin and Sandy Levinson's article Understanding the Constitutional Revolution. Professor Balkin approaches constitutional interpretation from the opposite end of the spectrum of Professor Solum: Balkin is a realist, meaning that he acknowledges the role of political ideology in the law and judicial decisionmaking. Formalists claim that legal realism is not true to the rule of law; realists respond that despite what formalists say, formalism isn't how the law really works. All of this is, of course, greatly simplified here. If you want a backgrounder on the tension between formalism and realism (this alignment corresponds, roughly and imperfectly today, with "conservative" and "liberal" viewpoints, though this is not necessarily so, and hasn't always been historically), have a look at Professor Solum's series of posts on neoformalism. It is actually a point-counterpoint between Professor Solum and Professor Balkin. Very informative, and also at times humorous. I hold Professor Balkin's work in the same high esteem that I do Professor Solum's work. (Disclosure: I had the very good fortune to have Professor Balkin as my Criminal Law professor in my first year of law school...let's just say that was "many years" ago!)

As to the present day, the situation with the Supreme Court is, indeed, very interesting. I agree completely with Mr. Rowe: President Bush will appoint at least 3 Justices. Justices Rehnquist, Stevens, and O'Connor will all retire sooner or later, but before President Bush's term expires. I see a strong fourth retirement possibility in Justice Ginsburg, too. The possibilities are endless, and this is complete speculation, but let us suppose that Justice Rehnquist is the first to announce that he is stepping down. As I see it, the President has a couple of options. He can be patient and bide his time, nominating a strong conservative (I agree that McConnell is a real contender, especially right now...Estrada and Gonzalez are too radioactive...but then again, Bush says he has a "mandate" and the Senate isn't what it was a week ago) to fill Rehnquist's post. He could also nominate Justice Thomas or Justice Scalia, but they, too, would face harsh Democratic opposition and Bush doesn't gain much.

If President Bush doesn't want to be patient (it doesn't seem to be a virtue of his, after all), I have thought about this possibility: nominate Justice Kennedy to take the Chief Justice spot, and fill Justice Kennedy's seat with someone like McConnell. Clearly, this move has both upsides and downsides for the President. Justice Kennedy is usually a reliable conservative vote, though he has well-known libertarian urges from time-to-time that he serves with decisions like Lawrence. I think Kennedy would be rather easily confirmed to the Chief Justice spot. I don't know if he wants it or would take it, and I'm not aware of anyplace where he's given any hints, either. This would be seen, I think, as a good-faith gesture by President Bush, and would give him license to shore up Kennedy's seat with a more hard-liner. I'd be interested to hear what others think about this possibility.

In the grand scheme of things, I think the President can afford to wait. No matter what he does with the Chief Justice seat, he will have a chance to tip the balance when Justice Stevens leaves the Court. The past week's election has assured that the Supreme Court we'll have for the next 10 to 20 years (barring unforeseen deaths or retirements) will be a very different body from what it is today. Stay tuned.