Current Struggle Over Judicial Appointments is a Dress Rehearsal for Supreme Court Fight

New York Times ^ | May 1, 2005 | Jeffrey Rosen

[JBW]

It feels like Armageddon is just around the corner. The Republican threat to eliminate the filibuster rule in judicial confirmations has led both parties to cautiously assess what the political landscape would look like if the so-called nuclear option were used.

But for many here, this political brawl is only a dress rehearsal for the coming battle over a replacement for Chief Justice William Rehnquist, whose recent illness has led to the expectation that he will retire before the end of the Supreme Court term in June.

Legal scholars who have studied confirmations wonder whether the president wants to risk a fierce battle over the nomination of a polarizing figure like Antonin Scalia or Clarence Thomas, his favorite members of the court. And they note that only 5 of the 16 chief justices in American history had previously served as associate justices. Some believe he will shy away from a political storm.

"If you elevated Scalia or Thomas, it would be Robert Bork squared," said John Yoo, formerly a Thomas clerk and a deputy assistant attorney general in the Bush Justice Department. "You have a record of hundreds of votes on every controversial issue, which would provide Senate Democrats with a gold mine of material to attack in a hearing."

Others see a political advantage in making a polarizing choice.

The administration knows that the real prize is the court's overall balance, which is the key to the outcome of individual cases. For this reason, some believe a Scalia nomination could draw Democrats into an ugly and drawn-out confirmation fight, after which, whether Mr. Scalia won or lost, there would be less energy to oppose an even more conservative associate justice.

"Bush has a wonderful model in the Rehnquist-Scalia appointment in 1986, where Democrats exhausted themselves in the battle over the chief justice, and Scalia, the associate justice, slid right through," said Herman Schwartz of the American University College of Law.

[JBW]

If Senate Democrats can still or derail administration appointments for the District Courts and the Courts of Appeals they will likely also be able to scuttle appointments to the Supreme Court.

http://www.jonathanbwilson.com/2005.05.01_arch.html#1114958276264

[sanchez810]

IT MAY BE A GOOD IDEA NOT TO NOMINATE SCALIA OR THOMAS FOR CHIEF JUSTICE.

[Aetius]

The GOP never responds well when far-lefties like Schumer, Kennedy, Clinton, and Boxer get on tv and call the blocked judges 'out of the mainstream extremists.'

The most it seems Republicans ever respond with is about wanting judges who don't legislate from the bench, and while that is true and good to point out, they need to start giving specific examples of judicial abuse. Whether its the inevitable imposition of gay marriage/civil unions, or the existing imposition of abortion on demand, or the granting of citizen-like status to illegal aliens, or the barring of public nativity scenes and prayers before high school football games, or the consultation of foreign law, or a future ruling defining the Second Amendment as a meaningless collective right; the GOP must do a better job of pointing out the truth that it is the Dems/Left who favors radical, out of the mainstream judges who will do for them by judicial fiat what can't be done in proper legislative/popular/political channels.

It is the aspect -- how the Dems/Left are using the Courts to impose on society things that the people already have or most certainly would reject -- that the GOP must make clear, to go along with the more general statements about the proper role of judges. It does no good to speak of how leftist judges are acting improperly if you don't give examples.

And they need to make it clear that with regards to blocked judges like Pryor, Brown, and Rogers, that the worst they would do is actually leave the hot-button, contentious social issues to be decided by the people and/or their elected representatives. They won't 'impose' anything on anyone or any state. The GOP must make this clear so as to help win over some of those easily misled suburban/swing/moderate voters.

[Logical me]

If the Constitutional option was put in effect now, and without the 100 hours of debate, it would be easier to appoint to the SC. This stalling has hurt the GOP beyond belief.

[brivette]

The outcome of this battle will shape American society for years to come. That is why Bill Frist maybe the most important person of our time. I hope he realizes that.

[brivette]

"It does no good to speak of how leftist judges are acting improperly if you don't give examples. "

Use the Mass Supreme Cout Judges as a prime example of how the courts imposed their will on the people against their wishes.

[Congressman Billybob]

Time by time, I am more amazed at the drivel the New York Times prints as news and analysis. Mr. Rosen is apparently unaware of the fact that several Democrat Senators are on record as NOT intending to filibuster a nomination of a Supreme Court vacancy.

This is NOT because the Democrats want to be "nice guys" concerning the Supreme Court. It is because the Democrats realize that the nation will notice, pay attention, and extract a cost from the Democrats if they keep the Supreme Court understaffed by a filibuster against a nominee.

Next, we look at Mr. Rosen's assertion that Chief Justice Rhenquist may "retire before the end of the Term." Wrong again. Anyone who knows the nature of his disease, and the nature of his commitment to the Court as an institution knows that he will not resign until this Term ends in June. He will die in harness rather than design before then.

The next stupidity is that the "nomination of Scalia or Thomas" will be "Bork squared." This is coupled with the suggestion that the new Chief Justice should come from outside the Court (because a majority of all Chiefs have been chosen that way).

President Bush understands political reality. He must be sure that the person he nominates, will get confirmed, as well as be a representative of the President's judicial philosophy. That means the nominee will be Justice Scalia.

The Republicans have a majority in the Senate. The filibuster will be destroyed as a weapon against judicial nominees in May, over the nomination of Judge Janice Brown to the Circuit Court. And Scalia was confirmed by a vote of 98-0 when he became an Associate Justice. The Democrats will scream and rail against Scalia, but he will be confirmed.

Any competent writer, any competent editor, would know the information I put in this post, and have written about before. This is not a news article. It is a grossly incompetent and dishonest propaganda piece based on Democrat political planning and intentions.

Did I miss anything? You don't have to answer that. I'm right, and the Times is a birdcage liner.

Congressman Billybob

Latest column, " 'L.A. Chappaquiddick,' Starring Hillary Clinton."

[sirthomasthemore]

If the Constitutional option was put in effect now, and without the 100 hours of debate, it would be easier to appoint to the SC. This stalling has hurt the GOP beyond belief.

---

Bullseye, my friend!

[ex-snook]

If the Supreme Court did not make law, there would be no fight at all.

[Milhous]

It sure took our friends over at Olds Media a long time to figure this out, given how often they try to tell us about their superior intellect. Meanwhile, 5 days ago, redneck Rush correctly pegged this battle as a fight to appoint originalists to the SC.

[El Gato]

"You have a record of hundreds of votes on every controversial issue, which would provide Senate Democrats with a gold mine of material to attack in a hearing."

If judges and justices can't be removed because of how they ruled, and those who support activist left wing judges assure us they cannot, how can they be opposed for new roles on the same basis?

[traviskicks]

I want this women in the SCOTUS:


Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.
- CA Justice Janice Rogers Brown

We no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.
- CA Justice Janice Rogers Brown

The quixotic desire to do good, be universally fair and make everybody happy is understandable. Indeed, the majority's zeal is more than a little endearing. There is only one problem with this approach. We are a court.
- CA Justice Janice Rogers Brown

Government is the only enterprise in the world which expands in size when its failures increase.
- CA Justice Janice Rogers Brown

The public school system is already so beleaguered by bureaucracy; so cowed by the demands of due process; so overwhelmed with faddish curricula that its educational purpose is almost an afterthought.
- CA Justice Janice Rogers Brown

[JBW]

I couldn't agree more with your support for Janice Rogers Brown. Anyone interested in her appointment should read the full text of her speech at the University of Chicago law school where many of your quotations were made:

http://www.jonathanbwilson.com/2005.04.01_arch.html#1114184005648

[Aetius]

Yes, and I must admit that Bush did cite this during the campaign.

Its just my sense that the GOP is not nearly as vocal and adamant and passionate about the judicial debate as the Dems/Left.

If the GOP could simply make people see that the most one of the much-demonized judges like Scalia or Thomas would do is to refrain from deciding an issue that is properly left to the people and/or their legislatures; that unlike liberal judges they will not impose anything on anybody.

I'll bet most Americans believe that overturning Roe would itself directly outlaw abortion, when of course the reality is that it would only return the matter to the states.

[traviskicks]

Pretty good quotes for just one speech huh? I'm going to try and research some of her opinions on-line and see if i can find some more.

[OXENinFLA]

On now....


10:00 AM EDT (C-span)
LIVE
News Conference
Judicial Nominations

Progress for America
Wendy Long , Judicial Confirmation Network
Brian McCabe , Progress for America

[ken5050]

I'm just trying to speculate on the underlying timeline here. Obviously, this is all a warm-up for the SC nomination fight. One must assume that Rehnquist is co-ordinating his retirement with the WH...as well as with Frist...so they have to have a master strategery here...which I can't figure out...only thought would be that if Spector doesn't vote with the GOP on the nuclear option, they'll remove him as chair of the SDJC..

[Congressman Billybob]

There is no need for Rehnquist to "coordinate" with Frist or the White House.

Everyone knows that the Court's Term ends when it hands down its last decision sometime in June. (Actually, it ends a few weeks before that when the last case is decided, which is before it is handed down.)

So, everyone and his brother knows that Rehnquist will resign for medical reasons at the end of the Term. So, the White House has already begun very hush-hush, eyes-only plans to replace Rehnquist.

And Frist already knows that a nominee for Chief Justice of the United States (which is the correct title), will be before the Senate sometime in June, and needs to be confirmed as soon as possible, because the work for the next Term in accepting cases for review, begins immediately.

John / Billybob

[ken5050]

Thanks, as always, for the cogent analysis..