Orin Kerr makes a couple of interesting points in his post on Volokh about O'Connor's retirement:
9. O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.10. We're likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.
Now, if Souter retires too...all bets are off.
For the other side of this, Marty Lederman lists the precedents that may be at risk with O'Connor's retirement, cases in which she was the swing vote one way or the other. And for a voice of caution, my fellow ITA contributor Jonathan Bunch cautions:
Justice O'Connor's retirement is being referred to as a "tipping point" in SCOTUS history. This speculation is premature for several reasons. First, it is entirely too early to predict whether her replacement will indeed be a more conservative jurist than she was. Second, it is too early to predict the dynamics that the new Justice will bring about--i.e. what new alliances and voting relationships will appear.
Certainly true. He also points out that liberal groups reacted vociferously against the nomination of John Paul Stevens when Ford nominated him, and he has turned out to be a fairly liberal justice. A nominee like Gonzales, in particular, may well end up being far more liberal than his backers would presume. A judge like Garza or McConnell, with such a long track record of expressing conservative views, is less likely to turn out considerably different than expected. But as Jonathan says, you never know with the court.
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I have been reading, and trying to understand, Timothy Sandefur's and Jon Rowe's give and take on substantive due process. I get the feeling that how a judge views due process seems to be somewhat of wild card in the nomination process. I have noticed that, Clarence Thomas notwithstanding, many respectable conservatives who also happen to be minorities break ranks with the extremist on this issue. It is my opinion that this is what separates Alberto Gonzales from other conservatives.
I get the impression that even a reliable conservative (on most issues) will be less extreme when push comes to shove if they see substantive due process as a valid interpretive tool.
As a novice, I may be way off base, but I would like to hear what others think.
John-
I think you're not far from the truth there, but since Timothy and Jon are both readers of this blog, perhaps they'll chime in and give you their perspective.
Speaking as a Democrat, I think the pragmatic solution is to throw their weight behind Gonzalez, right away.
Make a big stink about how he's an excellent choice, and how they can't see anything wrong with replacing O'Conner with a man so obviously admired by Bush.
Get his name out there right away.
Why? First, as far as likely Bush nominees go -- he's a better choice than anyone else Bush might make from a liberal point of view. Second, he's never really been in a position where he wasn't having to watch his own job (writing briefs for Bush and being a judge in a state that elects them) -- given that, the odds are he'll be MORE liberal than his history suggests (he's had plenty of oppurtunity to be more conservative in a state that would reward it, and hasn't).
Third -- Bush likes him, and that might be enough to overcome the religious right's objections. Last -- but not least -- by holding him out, the Democrats can look less 'obstructionist' by consistently pointing to a conservative candidate they'd be happy with.
Will the base like it? Probably not, but the liberal base (even the Howard Dean wing) is a hell of a lot more pragmatic than some of it's detractors suggest. Fact of the matter is, Bush WILL be appointing someone and while Gonzalez's torture memos (and his shoddy briefs for the death penalty appeals) make me shudder, it's better than the alternative -- and I can at least hope that he was simple writing what his boss wanted and that when he is his OWN boss things will be different.
Hell of a slim reed for Democrats, but what else is there?
It's interesting that everyone is talking about Roe v. Wade, when the case matters very little anymore. And the case that does matter, Casey, counted on votes from Blackmun, Souter, Kennedy, O'Connor, and Stevens. Rehnquist, Scalia, White, and Thomas dissented. Blackmun and White's votes have been replaced by the more liberal Justices Ginsburg and Breyer.
Well all I know is that the nominees I really want don't have a chance in hell. The day that Randy Barnett and Richard Epstein are nominated for the high court is the day I know things have changed dramatically in our political system.
I see Senate Democrats fighting to protect abortion rights, I don't see them fighting to protect church-state separation.
Of course Reed, they have the general population on their side in regards to abortion. Most people don't really care about the seperation issue, aside from those who are advocates on either side.