Posted on 06/30/2003 5:06:31 AM PDT by 7 x 77
Amid swirling speculation about reshaping the Supreme Court, a well-connected senior Republican senator told colleagues he has been informed what's likely to happen: Chief Justice William Rehnquist would retire and be replaced by Justice Sandra Day O'Connor, with that vacancy filled by White House Counsel Alberto Gonzales. Improbable though it seems, this scenario deepened conservative gloom after the high court's landmark decisions last week.
O'Connor at age 73 would be an interim chief justice, capping off her career and giving President Bush credit for naming the first woman to the nation's highest judicial office. It is significant that the administration would leak this trial balloon to a senator after O'Connor was the major player as the Supreme Court upheld racial preferences and struck down sodomy laws. Conservatives are resigned to Gonzales as the first Bush nominee for the high court.
That means the Supreme Court will not improve from the standpoint of conservative legal scholars, who view the court as dysfunctional despite half a century of Republican appointments. They see last week's decisions as typically based on elitist opinion. Nobody more clearly represents this deterioration of the judicial process than O'Connor during nearly 22 years as a justice.
It's difficult to exaggerate the contempt that conservative legal scholars privately express toward O'Connor. The attitude seeped through in Justice Antonin Scalia's thundering dissents last week, in which he abandoned fraternal amity in attacking O'Connor's judicial reasoning.
As for O'Connor's majority opinion asserting a ''compelling state interest'' in University of Michigan Law School admissions, Scalia said if ''maintaining a 'prestige' law school'' with special admission policies for blacks ''is a compelling state interest, everything is.'' As for her concurring opinion striking down the Texas sodomy law, he asserts that O'Connor creates a jurisprudence under which ''judges can validate laws by characterizing them as 'preserving the traditions of society' (good); or invalidate them by characterizing them as 'expressing moral disapproval' (bad).''
While the future course of lifetime nominees is not predictable, O'Connor's record is no surprise. Ronald Reagan was determined to name a woman as his first Supreme Court nominee, and the Justice Department recommended O'Connor (then an Arizona Court of Appeals judge). The White House was bombarded with documentary evidence of her social liberalism in the Arizona legislature. A young Justice Department lawyer named Kenneth W. Starr investigated and wrote a 2-1/2 page memo clearing O'Connor. President Reagan told social conservatives: ''She's all right.''
Reagan and Starr were wrong. There is no doubt Lawrence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia, had O'Connor in mind when he skewered the Supreme Court in a candid speech to the conservative Federalist Society last November. Pointing to the court's decisions on abortion, religion and (even before last Thursday) homosexual rights, Silberman declared: ''I do not think it even can be seriously argued that any of these lines of decision had a shadow of true constitutional justification.''
''How does the court get away with it?'' Silberman asked. His answer: ''It maintains its legitimacy so long as its activist opinions coincide with the views of a broad national consensus of elite opinion.'' He suggested that O'Connor's public remarks questioning the death penalty, patently improper for a sitting justice, ''were designed to test the waters'' of elitist opinion.
Sen. Edward M. Kennedy's brilliant campaign of selective filibusters against appellate court nominees appears to have succeeded in freezing Bush's Supreme Court nominations. It now seems certain former Texas Supreme Court Justice Gonzales will be the president's first associate justice. He is viewed by conservatives as an improvement on O'Connor, but not much better. While Democrats surely will not be lucky enough to get a John Paul Stevens or David Souter, they will be content with Gonzales.
It was Gonzales who watered down Solicitor General Theodore Olson's government argument in the racial preference cases, which gave O'Connor and Justice Anthony Kennedy a basis for catering to elite opinion. So, the Bush Court promises to remain dysfunctional.
I hadn't gone into the precise details of the Texas parental consent issue before today, because I don't handle abortion cases, and I have other issues I DO handle, in the Supreme Court, and have to be current on. However, this thread forced me to read up on the Gonzales-Owen difference of opinion. I reach this conclusion:
The Texas legislature provided in the law that any issues not ruled on clearly, in writing, and in time, would be deemed to have been decided in favor of the minor (subject to some conditions not applicable here). So, the trial court screwed up. And the legislature's requirements of what happens then, dictated the result that Gonzales concluded. Owen was trying to repair the law from the bench, in a conservative direction. But a full-dress legal conservative will obey the law as written, rather than rewrite it -- which is a legislative, not a judicial function.
I feel fairly confident in that conclusion. Looking at judicial decisions over the long haul, the most dangerous ones are not those where the preferred side lost the current case. They are the ones in which, regardless of which party won the present case, the court laid down a bad rule which will undercut many laws and many cases for all time to come.
Billybob
The chances of 2/3 of both houses voting to override a Bush veto of McCain-Feingold were exactly zero, goose egg, nada. And polls taken before it passed showed a large majority of voters either opposed it or couldn't have cared less whether it passed or not. Bush probably would have gained more votes by vetoing it than he will ever get by signing it.
But no need to worry, the USSC will throw it out any day now. It's all just part of the big plan to stiff the Dems ya see. I know that for sure because I read it right here on FR.
I look at cases pending in the Supreme Court in two ways. One is what they SHOULD do, if they respect the Constitution. The other is what they ARE LIKELY to do. The latter is a much lower standard, sad to say. So that was why I was not "surprised" by some decisions that I consider dead wrong in a philosophical sense.
Congressman Billybob
My sense---and I could be totally wrong---is that the political parties, the media, and even the lobbyists have already "adjusted" and have already changed their strategies so was to totally circumvent whatever idiotic ruling comes about with this bill from the USSC. Look for a blizzard of technical challenges to bury the courts after the USSC ruling.
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