Steve "Feddie" Dillard, Grand Poobah of Southern Appeal, has revealed that a reliable source has told him that Chief Justice Rehnquist will be stepping down in the next 4 weeks. Feddie is pretty well connected in those circles, so I have no reason to doubt it. Besides that, it's what everyone is expected anyway. He is predicting that Michael McConnell will be the choice to replace him, which is the same person I've been predicting for the last few months. McConnell is solidly conservative, but not in a partisan manner. He's an intellectual conservative, not a political conservative and that carries much weight with me. He has a long track record of scholarship that will provide plenty of fodder for the various liberal advocacy groups, particularly PAW and Americans United, to oppose him. But ultimately, he is confirmable. He has broad support from legal scholars, including many prominent liberals, and he has proven to be a consistent conservative rather than a partisan one (for example, he publicly opposed the impeachment of Bill Clinton and spoke out strongly against the Bush v. Gore Supreme Court decision). Given the other potential choices, McConnell is about as good as liberals or libertarians could expect to get as a nominee given the current configuration.
The more interesting speculation comes in the comments in response to Feddie's post. One commenter, citing his own unnamed sources, seemed to imply that McConnell would be named directly to the Chief Justice position because Clarence Thomas had told the administration that he didn't want to go through another confirmation fight (I find that entirely plausible) and that Scalia was viewed as too divisive within the court (also entirely plausible). Very interesting. Expect a long hot summer of fevered rhetoric.
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Perhaps I'm missing something, but if McConnell is as reasonable as the article suggests, why would Bush nominate him, when there are presumably other Clarence Thomases, Janice Rogers Browns, and Patricia Owenses out there?
Thanks, Catherine
What Catherine said. Particularly in light of this: "He has broad support from legal scholars, including many prominent liberals, and he has proven to be a consistent conservative rather than a partisan one (for example, he publicly opposed the impeachment of Bill Clinton and spoke out strongly against the Bush v. Gore Supreme Court decision)." Given a) the Bush administration's hatred of Clinton and all his works, and b) the extremely high value Bush places on loyalty to him, why on earth would he nominate someone like that?
Catherine wrote:
I think this is precisely the attitude that should be avoided. You're essentially arguing that if he's acceptable to Bush, he must be unreasonable. And you're painting very distinct people with distinct viewpoints with the same broad brush. Janice Rogers Brown is entirely different from Priscilla Owen, so much so that they were nominated to satisfy entirely different constituent groups (Brown to satisfy more libertarian-minded conservatives and Owen to satisfy social conservatives). There is quite a range of thought among conservatives on a number of key issues - the importance of the declaration as a tool of constitutional interpretation (Bork and Scalia reject it completely, Thomas strongly accepts it); the importance of stare decisis (Scalia accepts it most of the time, Rehnquist almost all of the time, Thomas almost never, McConnell appears to be more Rehnquist-like in that he appears to give significant weight to precedents that he disagrees with); also on questions of economic vs. social conservatism, the breadth of commerce clause justification for federal regulation, the extent of accomodationism required or allowed by the free exercise clause and much more.
McConnell has solidly conservative views, but he also has respect for precedent (he is on record as saying that despite his opposition to abortion and his criticisms of Roe v. Wade, it is now settled law) and is not motivated by partisanship. So as conservative judicial nominees go, he's as good as we're likely to get. I certainly have my disagreements with him, particularly on church/state issues. But overall, I think he's a pretty good choice.
and some types of thinking are far more acceptable than others.
I have read some of the opposition to him (from the always fair and balanced PFAW :) ), and I don't like what I see.
I understand that anyone appointed by Bush is going to be pro-life, but I am concerned that with a few more like minded justices, we could see the day that modern birth control is criminalized. I hope some one here can convince me that I am overly paraniod.
John wrote:
Well, in his earlier confirmation hearing he did say that he considered Roe to be settled law, and he's someone who has expressed a solid respect for precedent even when he disagrees with it. Given the strident anti-abortion views of many other legal conservatives, I think that's about as good as you're likely to get. In fact, many conservatives have criticized him for saying that Roe was settled law. As far as the birth control fear goes, I think that is quite paranoid. Abortion and birth control have virtually nothing to do with each other and even if Roe is not settled law, Griswold certainly is. Use of birth control is very, very high among American citizens and there's just no way that is ever going to fly.
I think what John may be confusing is recent government efforts to undermine the public's (in particular, the teenage public's) confidence in condoms as a form of birth control and a barrier to disease. Only the Catholic church and those protestant denominations at or to the right of it oppose birth control on principle.
McConnell is confirmable without a bloody confirmation fight. This makes some strategic sense for Bush, because it takes away the opposition claim that the recent appellate court appointments war was really just a move to set the stage for a Supreme Court nomination. Not to say that the liberals will like a McConnell nomination -- they won't -- but despite their inevitable protests, they know that a McConnell nomination is about the best they can hope for out of this Administration.
McConnell is actually an ideal choice for the Republicans. No, he won't vote to overturn Roe, but the Republicans don't really want for Roe to be overturned. They fear, correctly, that such an outcome would send a lot of moderate Republicans running for Democratic cover. Roe is a decision that the contemporary Republican party loves to hate.
At the same time, a McConnell nomination can be peddled as an appeasement of the religious base. His writings on the religion clauses make it pretty clear where he lands on church/state issues, as Ed points out. On this issue, it seems to me that a swap of McConnell for Rehnquist is pretty much a wash. That is one of the reasons why I hope McConnell is nominated to take the Chief Justice position, as opposed to elevating another Justice to the Chief Justice spot and making McConnell an Associate Justice. That's also the reason why I'm not convinced McConnell will be nominated for Chief Justice.
Scalia has been campaigning for the job but he's too much of a flame-thrower. Thomas has probably respectfully declined to avoid Hill-Thomas Part II. I don't see O'Connor's heart being in it, and her wild-card tendencies give conservatives the willies. This leaves...Kennedy. Conventional wisdom says he blew his chances with Lawrence, and that may well be true. But at the same time, he breezes through confirmation and, Lawrence aside, he tends to be a reliable conservative vote. It's a win-win situation for Bush. It scores him big points on the public perception scale for reasonableness, and lets him bide his time waiting on the next appointment (or two) that will come in the next couple of years.
In the end, of course, this is all so much speculation. But it will make for an interesting summer.
If a law is passed that defines life as beginning at conception, than the mechanism is in place to criminlize modern birth control. I probably worry overmuch about a lot of things, but the modern conservative's view of the law and the constitution rather frightens me.
And I'm no liberal. I am an old-fashioned Rockefelly Republican.
Dan wrote:
I think this is right on the money. They want to nominate justices who talk a good game about abortion, but I think the power brokers in the Republican party know that if Roe is overturned, they become the minority party for the next 20 years. Poll after poll shows that 2/3 of the public wants abortion to remain legal, and that has been consistent for a very long time. They're okay with restrictions on that right such as waiting periods, parental notification and even a ban on partial birth abortions. But they want it to remain legal, period.
If Roe is overturned, abortion becomes a legislative issue again and the only way to insure that it remains legal at that point is to elect Democrats or very moderate Republicans. The days of social conservatives having real power in the Republican party would end fairly quickly after such a move, and you'd see Democrats sweep the state houses and congressional seats over the next couple of elections after it was overturned. And the political bosses in the party know this well. As long as it remains a judicial issue, they can rail against it at will without risking the loss of the swing voters. Make it a legislative issue again and the Republican party loses big.
John wrote:
But overturning Roe would not mean the passage of such a law. It would mean the issue goes back to the states, who can decide on their own whether it should be legal or illegal and with what restritions. And as stated above, if that happens the Republicans will lose in a big way.
I am constantly reminded to read all the previous posts before commenting; they are almost always well written and state the breadth of the debate. Dan's points were along the lines of what i was planning. My only other consideration is the potential future appointment of a more reactionary fundamentalist conservative to replace O'Conner if she doesn't last through Bush's term. As Dan pointed out McConnell can get past the "filibuster" issue and establish a mini-precedent that can be used to counter a future filibuster against a more dangerous nominee.
But as Ed pointed out a few threads ago, Bush/Rove/Cheney do not always make the more rational and moderate of choices.
One of the things that is often overlooked is the fact that the chief justice is not just a jurist, he, or she, is also a manager. Not just of the US Supreme Court, but also of the entire federal judicial system. According to a recent article in Atlantic Monthly, Rehnquist as CJ has been a remarkably good manager.
It is highly unlikely that Scalia and Thomas would be as good as managers. They have alienated too many people over the years. Regardless of what one thinks of their judicial philosophies.
I think this is dead wrong. I don't have the current polls on this, but the republicans have been very good at subverting the question. In the past the majority has been against abortion but for the right to choose. I think since Rowe the polling has split, sorry, to lazy to google, but the majority has shifted against Rowe.
This will lead to a violent backlash, as abortion is as common in red states as blue states, and will eventually swing to a bright blue majority, as pro live folks have as many abortions as pro choice folks. (Sorry, again to lazy to google, do it yourself, you'd be suprised.).
Almost off topic, but the Brownback vs. Spector debate this weekend was great. Brownback asked Spector when life begins. I was really hoping Spector responded 4 billion years ago. When human life begins is another topic.
Here are the polling data. Ed's right.
I would like to see ChrisC's data.
I'm having trouble finding a non biased source, but here's at least one source. From what I can tell, the results are highly biased based on the wording of the questions.
That said, Dan's results look better then mine, but I'll note that the split between pro-choice/pro-life is 48/44, while the choice between woman/doctor vs always illegal is 55% vs 14%. There is a big gap between those who think abortion is morally wrong and those who think it should be illegal. I think that some republicans forget about this, and overturn Roe would produce a backlash.
I would also note that even the staunchly anti-abortion Star Parker just the other day cited a poll showing that 63% of Americans support Roe v. Wade.
One of the things that you might want to consider is something that I read on an Internet message board a number of years ago. The anti-Roe opposition didn't begin so much with RvW, but when the federal government essentially made abortions taxpayer funded via Medicaid. That made taxpayers believe that they were complicit in abortions, and those who objected to abortion revolted.
I'm not sure how true that scenario is, but it seems to be credible. I will relate, though, I was in law school in 1973 when the decision in RvW was handed down. I was also at the time working in the physics lab from which I had gotten my master's degree in physics several years earlier. I was grilled up and down by the grad students in the lab about RvW, asking me to justify the decision, the reasoning. I was unable to. And I have been unable to justify the reasoning in the opinion to this day (although I haven't made a major effort in a couple of decades).
Do I disagree with abortion rights? Seriously, not. What I do disagree with is hypocrisy. What I have learned since RvW is that, even before RvW, wealthy women could obtain abortions. In hospitals. They weren't called abortions--they used more genteel terms. Poorer women, who didn't have access to hospitals for their abortions, were relegated to back-alley procedures.
Hypocrisy.
McConnell taught at the University of Utah -- that alone should win endorsement and heart of Orrin Hatch in a confirmation fight.
I'm assuming, of course, that the White House knows the value of having heart in a fight, and that the White House knows who Orrin Hatch is.