Posted on 05/28/2005 7:36:14 PM PDT by Ernest_at_the_Beach
PHILADELPHIA - (KRT) - This summer, Washington may well vie with Hollywood for the biggest blockbuster. The mother of all political battles, over the future of the U.S. Supreme Court, is drawing near.
With Chief Justice William H. Rehnquist seriously ill - in fact, with eight of the nine justices over age 65 - the odds are high that at least one job will open for the first time in 11 years. And that will unleash passions on the left and right, in the first confirmation showdown of the Internet era, with blogs and Web sites stoking the ideological warfare 24/7.
Anyone tapped by President Bush to fill a vacancy will be forced into the maelstrom. Nevertheless, Bush seems poised to get what he wants - to accentuate the court's rightward tilt, potentially to reshape the bench as no president has done since Franklin D. Roosevelt.
That's the bottom line, despite a Senate deal last week that seemed - at first glance, anyway - to be a victory for the chamber's Democratic minority.
Under the deal, Democrats can still stage filibusters against Bush nominees - a parliamentary tactic that allows the president's foes to kill his nominees with endless debate, unless 60 of the 100 senators agree to shut it down. Religious-right leaders are apoplectic; they say the 44 Democrats have retained the power to block the kinds of conservatives who would revolutionize the high court.
Tony Perkins said that, when he heard about the deal, "I wanted to cry." Gary Bauer said, "I felt I'd been punched in the stomach." James Dobson said, "I went to bed and pulled the covers up over my ears."
But these Bush allies - who fervently seek a high court that will end legal abortion and lower the wall between church and state - may be needlessly alarmed. Legal scholars and political analysts argue that the deal is not so great for the Democrats, and that it will hardly deter a president who is loath to compromise on his signature quest to reshape the court.
"The bottom line is, Bush still has the upper hand," said analyst Alan Abramowitz, a court-watcher at Emory University in Atlanta. "His general attitude is, `Go for broke.' He's not going to pull back and nominate a moderate to replace Rehnquist. I think he would actually enjoy a big fight with the Democrats.
"Remember, he still has 55 Senate Republicans who can change the Senate rules and end filibusters entirely," by detonating the so-called nuclear option. "They can and they will."
Also, the Democrats may have boxed themselves in. Last week, in exchange for agreeing to stop filibustering three lower-court Bush nominees whom they had tagged as extremists, Democrats promised they'd use the tactic only in "extraordinary circumstances." That phrase could haunt them down the road, because it arguably sets the bar higher than it was before.
Many analysts are asking: How can Democrats credibly invoke "extraordinary circumstances" against a conservative nominee for the Supreme Court - after having just agreed to stop filibustering an appeals-court nominee (Janice Rogers Brown) who once assailed FDR's New Deal as a "socialist revolution," and after having agreed to stop blocking another nominee (William Pryor) who believes that the 1973 Roe v. Wade abortion ruling was an "abomination"?
It would appear that the Democrats, by lifting blockades against Brown and Pryor, can no longer reasonably cite a nominee's conservative ideology as grounds for a filibuster. Some Senate Republicans are already making this argument (and threatening the nuclear option if Democrats invoke ideology), but a number of Democratic-friendly commentators also are saying that the Democrats have been effectively squeezed.
Witness T.A. Frank, in a blog sponsored by the New Republic. He said that, under the deal, "only the certifiably insane can possibly be blocked." The bottom line: "If (Bush) nominates, say, an Irish setter who runs up and bites (GOP Sen.) Orrin Hatch in the leg, then Democrats will be allowed to play the bad guys and employ their filibuster. Otherwise, they'd better hold off, since, if they don't, Republicans might have to take the filibuster away for real."
But if all this is true, why are the religious-right leaders so upset about the Senate deal?
"Some of the anger is genuine, but knowing them as well as I do, some of it is staged," said Marshall Wittmann, a former lobbyist for the Christian Coalition. "They are staging a tantrum in order to tell the White House, `We're giving you a taste of what our wrath will be if you betray us by choosing a high-court nominee who isn't our kind of conservative.'"
The religious right - which, according to Wittmann, now constitutes 40 percent of the GOP coalition - has been unhappy with the Rehnquist court, despite the fact that seven of the nine justices are Republican appointees. Among other things, this court has repeatedly declined to overturn Roe; ruled that juvenile criminals may not be executed; decreed that the private sexual conduct of gays should not be criminalized; and has refused to hear numerous cases seeking to breach the church-state barrier.
Bush is sensitive to Christian conservative concerns. Geoffrey Stone, a law professor at the University of Chicago, said: "Bush probably believes it is in his political interest to satisfy his base by stuffing a conservative nominee down the Democrats' throats, basically telling Democrats, `I appoint, now you play dead.' Force them into a filibuster, depict it as an unfair obstruction, then break it."
Stone also said Bush could outfox Democrats by choosing "responsible and thoughtful" conservatives who would test the Democrats' willingness to filibuster. He cited federal appeals judge Michael McConnell, who has long denounced abortion-rights rulings but whose intellect has been praised by liberal academics.
Another rumored front-runner is federal appeals judge J. Michael Luttig, who in 1998 ruled against late-term abortions, and, a year earlier, ruled that teens seeking abortions had to tell their parents first. It's no wonder that Eleanor Smeal, president of the Feminist Majority Foundation, is already insisting that threats to "women's rights" should be considered an "extraordinary circumstance."
But Mark Tushnet, a Georgetown University law professor and former Supreme Court clerk, said: "Abortion alone is not enough of a reason for the Democrats to filibuster. They lost the November election. Therefore, they shouldn't expect to get a `pro-choice' person on the Supreme Court. Their interest groups know that, but they have to keep raising money."
That's smart, considering that the expected Rehnquist vacancy is merely the opening round. The court's philosophical makeup won't be greatly altered if a new conservative takes Rehnquist's slot. The real fight may occur if or when Bush nominates someone to replace John Paul Stevens (age 85, a moderate), or Sandra Day O'Connor (age 75, a swing vote).
Wittmann said, "If Bush was to choose someone truly controversial as an O'Connor replacement - like maybe the equivalent of (stymied U.N. nominee) John Bolton - that's when the Democrats will claim `extraordinary circumstance.' Everyone in Washington knows it."
Yet, amidst all the three-dimensional chess, the irony is that nobody knows how justices will perform until they don the robes. Republican President Dwight Eisenhower named Earl Warren and William Brennan, who helped tilt the court leftward for a generation. President Bush is generally loath to admit error, but Eisenhower, when asked whether he had ever made mistakes, famously replied, "Yes, two. And they're on the Supreme Court."
For that reason alone, Bush's conservative followers dearly hope he will leave no room for compromise.
Once the Constitutional option is exercised don't be surprised to see Democrats assassinating some of "W"'s nominees for the courts.
So how is Ginsberg's health anyway?
John Paul Stevens (age 85, a moderate).
LOL, these guys are nuts. Stevens...a moderate.
Only if the Republicans have the backbone to actually use it. Otherwise it will sit and collect dust.
-Regards, T.
I agree, McCain's in trouble.
"Yet, amidst all the three-dimensional chess, the irony is that nobody knows how justices will perform until they don the robes. Republican President Dwight Eisenhower named Earl Warren and William Brennan, who helped tilt the court leftward for a generation".
Yeah well nobody knew how Warren would do on the court as he never served as a judge before (he was a three-time California governor, and republican candidate for vice-president in 1948). As to Brennan, Ike asked for it, as he wanted to nominate "a Catholic, Democrat from North-East" to increase his chances during re-election. Now what could you possibly expect from a democratic judge from New England????
For me much more shocking were people like Harry Blackmun (who was proposed to president Nixon by Chief Justice Burger) and David Souter (who was proposed by Sununu). Now THEY (unlike Brennan for example) were supposed to be conservatists...
REPUBLICAN STEERS
So, is it a rule that any paper with the word "Star" in it is liberal?
LOL!
-Regards, T.
I still think that since the dems have agreed to letting a vote take place on Janice Rogers Brown, and she is likely to get approved, SHE should be put up---
How in the heck could the dems use the "extraordinary circumstances" excuse on her anymore? Besides, everything that I have read that she stands for, sounds really good to me...
I also wish he would think about Miguel Estrada...
These dems that came away from that little "compromise" charade thinking that President Bush is going to "ask the dems" who he should nominate, are really stupid!
The bar has been raised, and I don't expect them to attempt to filibuster Rehnquist's replacement.
Whether the 'Rats fight Bush's nominee aggressively depends on which judge retires. If William Rehnquest retires, the 'Rats won't try too hard to stop the nominee because there will be no ideological change on the court. A Rehnquest retirement is the most likely in the near future. Look for Bush to nominate Antonin Scalia as Chief Justice & Michael Luttig to succeed Scalia as Associate Justice, with both being confirmed with only token opposition.
Now if Sandra Day O'Conner or John Paul Stevens retire, that's when you'll see the fireworks.
What are you talking about?
That's what they have been doing fo 5 years?
The White House , if not already done so (through intermediaries), should keep it simple and do the following >>>
- inform Scalia that he will be nominated for Chief Justice
- have Scalia draw up a list of top choices for the Supreme Court to join him on the bench.
If McVain has set up his own shop, it may not float. McVain is pushing his own agenda and does not give a big rat's patoot about the country or Bush's agenda. McVain is working for McVain!! And, whether the six other idiots, including Graham, follow him is in qquestion.
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JMO of course.
Finally, some SOUND analysis of this situation is being done.
No surprise that the source is NOT the NYSlimes, AP, or ABCNNBCBS.
When Stevens or O'Connor goes, Bush should put up someone who is just barely to the left of Genghis Khan, and then effusively tell America on national TV that he (or she) is a "moderate."
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