A brawl? Really? Now that'd be something I'd pay to see. I know, HBO could put it on Pay-per-View, $26.99 or something. They'd make a fortune!
Posted on 05/01/2005 9:42:49 AM PDT by Libloather
The Brawl That May Erupt Over the High Court
By JEFFREY ROSEN
Published: May 1, 2005
WASHINGTON — 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.
But few observers expect Democrats to make the same mistake this time. "If I were a Democrat, I wouldn't waste the energy to filibuster Scalia or Thomas - it's the new vote that really counts, and I think the Democrats are certain to filibuster anyone the president picks," said C. Boyden Gray, chairman of the conservative Committee for Justice.
It is also not clear if Justice Thomas even wants the job. Former clerks say he views his 1991 confirmation hearings - which he famously called a "high-tech lynching" - as the worst experience of his life, one he has no desire to repeat.
Justice Scalia's reputation for irascibility might also make him a tough sell. Many legal scholars doubt whether he could be an effective consensus builder on the court, though some defenders counter that he might be eager to adapt to a new challenge.
"The most successful chief justices in history have all been former politicians: John Marshall, Charles Evans Hughes and Earl Warren," said David Strauss of the University of Chicago Law School. "In recent generations, the most effective chiefs have been believed by their colleagues to be fair, and straight shooters, not using their role as chief to advance a partisan agenda."
The outsiders most frequently mentioned on Mr. Bush's short list for chief justice and associate justice are all federal appellate judges: Samuel Alito Jr. of New Jersey; Emilio Garza of Texas; J. Michael Luttig of Virginia; Michael McConnell of Colorado; John Roberts of Washington D.C.; and J. Harvie Wilkinson III, also of Virginia. All are as conservative as Justice Rehnquist, or slightly to his right. None would substantially alter the balance of the Court.
Another reason the president might forgo nominating his first choice for chief justice is that the position is not as powerful as its title suggests. The chief has only one vote. His main power lies in assigning opinions when he is in the majority, to himself or to another justice.
He is also the symbolic representative of the federal judiciary. "The chief sets the tone for all federal judges and is the principal defender of the judiciary against attacks in Congress," said Michael Gerhardt, a historian at William & Mary School of Law.
That is an important role, and one that, historically, chief justices have performed in a nonpartisan fashion. It is a reminder that the court is a subtle institution, intellectually and socially, that can seldom be controlled by crudely political means.
Jeffrey Rosen is a law professor at George Washington University.
Hopefully by that time the RATS will have 100 hours to take their best shots - if they wish to look like bigger goofballs than they already have...
Of course the Repubs are the mean aggressors here. The DemonRats hold up the filibuster as some sort of golden legacy and democracy will be destroyed if it is not allowed. That's crap. Anybody who doesn't like the resolution is free to vote "no".
Exciting times. Will be interesting to see how it all shakes out.
Does anyone think the repubs will stick together on this?
Also are all the dims a lock to stick together.
May mean those that oppose or obstruct will lose their seats, I hope.
Re-nominate Judge Bork.
That would be fun drama, but we need young judges that will be around for a few decades.
A brawl? Really? Now that'd be something I'd pay to see. I know, HBO could put it on Pay-per-View, $26.99 or something. They'd make a fortune!
I suppose the Times would prefer to elevate a "moderate" like Ruth Bader Ginsberg or David Souter. (Note: According to the MSM, you are not a "moderate" unless you firmly support a first-amendment right to unlimited baby killing, sodomy, and pornography, but not freedom of religion.)
"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.
Others see a political advantage in making a polarizing choice."
Spot the liberal buzzword time! 'Polarizing' is now liberal doublespeak for conservative, right? If the NYSlimes was describing a left wing nut like Ruth Buzzi Ginsburg, she'd be described as a 'unifying figure' or 'centrist judge' or some such nonspecific blather. 'Cause she's not polarizing, she brings people together....awwww.
Anyone who says there is no liberal bias at the NYSlimes doesn't THINK about what they are reading. Of course, those are the preferred customers of that propaganda machine.
For nomination for the SCOTUS I propose Janice Rogers Brown:
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
I always hated the fact that it was Bush sr who picked Souter.
My only amusement comes from the fact that he had democratic party opposition anyway.
Which proves one point, no matter who Bush nominates, the democrats are going to fight like holy hell anyway, so you might as well get the most conservative person you can find (provided they are also young).
Dwight Eisenhower appointed Earl Warren. He, too, was under pressure not to be too conservative. That was the worst appointment ever.
I certainly agree with you. The elder Bush went through hell to get Souter nominated. He had might as well have nominated somebody good.
I'd like to see Ted Olsen on the Court.
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