Posted on 11/15/2004 1:40:54 PM PST by RWR8189
YES, the president must get this decision right. He must take real care with the nomination of a new Supreme Court justice. He must name someone impressive who shares his judicial philosophy. And he must get that nominee confirmed.
It's important to say this now because the likelihood of a vacancy by the end of the current term or earlier, perhaps even next month, has markedly increased with the news that Chief Justice William Rehnquist, who is 80 and has served since 1971, has thyroid cancer and is undergoing both radiation treatment and chemotherapy.
Other justices may well also retire during Bush's second term. Both John Paul Stevens, 84, and Sandra Day O'Connor, 74, are older than retiring justices usually have been, and their length of service (29 and 23 years) exceeds the average during the last century. And it's not unthinkable that another justice or two might leave the bench. After all, of the remaining justices, only Clarence Thomas is younger than 65. Meanwhile, consider this: The Court has now gone more than 10 years without the subtraction and addition of a justice--a stretch of years without a change in justices exceeded only from 1812 to 1823. It's about time, as they say.
Of course, no one knows (or if he or she does, he or she isn't telling) when anyone might be stepping down. But an administration must be prepared for vacancies, and you can bet that the Bush administration long ago drew up a list and sorted through the pros and cons of more than a few potential nominees.
Still, the urgency of getting the first nomination right is hard to overstate, if only because the president may have only one vacancy to fill before he retires. And for obvious reasons, it is on the Court's center seat, Rehnquist's, that the president must focus.
Who should the nominee be? Let's assume for every lawyer on the president's shortlist a distinguished legal career, the right temperament for judging, and good character. The remaining but transcendent question involves judicial philosophy. During the campaign the president reiterated his desire to pick judicial conservatives. There are varieties of judicial conservatism, to be sure. Yet generally speaking, this approach to judging takes seriously the original intent of the Constitution, and thus resists the creation of rights not found in its text or history and defers to the decision of popularly elected branches. Also, it respects the structural dictates of the Constitution--most notably those involving the separation of powers and federalism.
A non-exhaustive list of outstanding lawyers in all other respects qualified for the High Court who may fairly be described as judicial conservatives includes a number of federal appellate judges: Sam Alito of the Third Circuit, J. Michael Luttig and J. Harvie Wilkinson III of the Fourth Circuit, Edith Jones of the Fifth Circuit, Danny Boggs of the Sixth Circuit, Michael McConnell of the Tenth Circuit, and John Roberts of the D.C. Circuit. And it includes at least three non-judges: Sen. Jon Kyl of Arizona and two first-term Bush appointees--former deputy attorney general Larry Thompson and former solicitor general Theodore B. Olson.
In choosing a nominee, the president undoubtedly will consider some other factors. One, in the special case of nominating a leader for the Court, concerns the very nature of the position: The chief justice is chief justice not of the Supreme Court but of the United States. As such, he has supervisory responsibility for the entire federal judiciary and often a higher visibility than his colleagues. And inside the Court, a dexterous chief can influence the Court's direction, maybe not by much, but still by something. Then, too, there is age. The younger the new justice, the longer the individual's service and influence might be.
Finally, there is the nature of the nominee's legal experience. The Court is dominated by former circuit judges. The appeals courts are an obvious place to look for new justices. But good justices can come from other places--indeed, Rehnquist was in the Justice Department when President Nixon appointed him to the Court. Right now the Court has no one with prior experience as broad as Thompson, who has been a defense lawyer and also a federal prosecutor, a U.S. Attorney, a corporate attorney, and also deputy A.G., in which capacity he ran a Justice Department with a budget of $25 billion and 110,000 employees forced to quickly adjust its priorities in the wake of 9/11. By the way, that Bush nominated Alberto Gonzales as attorney general and not Thompson suggests to us that the president sees Thompson, as he should, as a serious prospect for the Court.
Whatever else Bush may take into account in selecting the first nominee, he must make sure that he picks a bona fide judicial conservative. Not only might the president not get another chance to nominate a justice, but it would make no sense to replace a judicial conservative, which Rehnquist most demonstrably is, with someone whose philosophy of judging is the opposite or, more likely, indiscernible because undeveloped. (Repeat after us: No more Souters--but also no more O'Connors.) Furthermore, a judicial conservative can be confirmed. Those Senate Democrats who insist on maintaining the Court's current ideological balance cannot credibly object to a successor to Rehnquist who holds the same philosophy as he. And moderate Senate Democrats can tell liberal interest groups that, after all, because this is already a "conservative seat," they can't be expected to go up against a recently reelected president on this nomination.
The president should be willing to expend in behalf of his choice some of that political capital he talked the other day about having earned. But the stars are well aligned for his first nomination: The president has every opportunity to select a stellar constitutional jurist, and to get him (pretty easily, we suspect) confirmed. Just do it.
--Terry Eastland, for the Editors
Good article about the real issues. Unfortunately, we may lose this war before we fight the first battle.
I like Judge Posner of the 7th Circuit.
As a practitioner, I like the idea of non-judges. I also like the idea of VERY young, conservative, judges that will be there a while.
This whole long treatise could have been 'written' with just the one sentence.
All the rest is just an exercise in the writer's "look at me, how wise I am" exercise.
"W" is where he is because we know him and we trust him. No need to go picking about in every decision of would be, might be choices...
Time to step back and let him make his decisions - and give room for them to be implemented.
I don't believe he needs our micromanagement.
I trust him...
He's the best man for the job, and he could never get confirmed.
Isn't it funny how the issue has been twisted so that the activist judges (those that vow to uphold Roe v Wade) are considered "mainstream" while any other judge is considered a "radical"?
Laura I.
Let's hope that it's Ginsberg that drops first.
Too bad Souter and Kennedy don't seem to be going anywhere soon.
I don't see Ginsberg lasting four more years so your hope may come true.
You hit every nail on the head.
The fact is that the majority of the justices on the Supreme Court have become agenda driven activists, and that bodes ill for the American people as a whole. This "third branch of government" now sees itself as the "overseer" of the Executive and the Legislature through its use of judicial review.
While I agree that conservative justices must be appointed to the High Court it's also obvious that an appointee, who is answerable to no one for the remainder of his/her life, would find it difficult not to succumb to the power of the office.
Although some will argue that the Congress has the power to rein in the Judiciary it has shown little inclination to do so over the past years, and it is this abdication of congressional responsibility that has given the Court its ability to unconstitutionally and incrementally change our Constitution.
In this regard the position of the Supreme Court in American politics must be reexamined. Conservatives must be appointed not only to the Court, but also to the Congress. Without a truly Conservative Congress acting as an "active" watchdog over the Judiciary it doesn't matter how many conseravtive Justices are appointed to the Court.
I am taking a law and economics class next semester where the professor almost exclusively uses Posner cases. They are truly a treat to read.
Frank Easterbrook sits on the 7th circuit w/ Posner and subscribes to the law and economics philosophy. I think he would be an excellent choice, but I haven't read any national security opinions of his. If anyone else has opinions/more info on Easterbrook as a potential SCOTUS nominee I would love to hear it.
I don't think there is any chance Posner would get selected. A Democrat surely wouldn't appoint him and I have heard he is not very religous, so I doubt President Bush would nominate him either.
Wow!
I can't believe that Larry Klayman's name is not on mentioned ONCE in this article!
Now you've done it.
The did by inference.....
BWAHAHAHAHAHA!!!!!
You know, Larry's gone into private practice in Florida.
I have a barking dog issue that I may contact him on.
I imagine that after a few years of press releases and fund raisers, my neighbors will either move, or their dog will die, at which point Larry will issue a flurry of press releases, declare victory, and initiate a fund raiser.
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