Posted on 09/08/2005 1:52:07 AM PDT by Cincinatus' Wife
Democrats must insist that the Senate not vote on John Roberts' confirmation to be chief justice until after Sandra Day O'Connor's successor is also named. The Senate needs to evaluate both picks together in assessing their impact on the Supreme Court, now and for years to come.
Also, Democrats need to make clear that since President Bush has already picked a conservative in Roberts for one vacancy, the other selection needs to be a more moderate Republican in the mold of O'Connor. Otherwise, a court that currently reflects a moderate mainstream view could become one that would be significantly further to the right and hostile to basic civil rights and civil liberties.
Since the last appointment to the Supreme Court 11 years ago, the justices have decided a number of important cases involving the proper role of government in our personal lives, the responsibility of government for protecting the general welfare and our continued commitment to the values underlying the rule of law. During that period, the court's majority, often by 5-4 votes, has resisted the assault (once led by Roberts) on a woman's fundamental reproductive rights; recognized the importance of affirmative action to the democratic purpose of public education; excluded government from the bedrooms of consenting adults; knocked down repeated efforts of some to inject religion into the activities of government; ended our internationally embarrassing execution of mentally retarded and juvenile offenders; and reaffirmed that not even the president is above the law.
Beyond the issue of whether these moderate decisions will be overruled, there also are important national issues that likely will come before the court in the next few years. For example, some conservative scholars have argued for the court to significantly limit the scope of Congress' spending power, claiming that federal aid for disaster relief is unconstitutional. The new justices also will have pivotal roles in deciding key questions concerning the scope of the president's powers as part of the war on terrorism.
The key question is whether the president will attempt to replace the moderate mainstream represented by Justice O'Connor with a right-wing nominee such as Justice Antonin Scalia or Clarence Thomas, who interpret the Constitution in a way that will produce decisions that are fundamentally inconsistent with how the public views the role of its government, both in our private lives and as trustee of our general welfare and national values.
Just as it would have been unthinkable for the Senate, after the decision in Brown v. Board of Education, to confirm a Supreme Court nominee whom it knew or suspected would have cast the deciding vote to overturn Brown, it should be equally unthinkable for the Senate now to vote to confirm a nominee who is unwilling to state unequivocally that he or she accepts as established that Roe v. Wade protects a woman's fundamental right of choice or that Grutter v. Bollinger correctly upheld the constitutionality of affirmative action in public education. For a Democrat to do so should be a career-ending vote.
The crucial question for the Senate must be whether the two picks for the Supreme Court together make it more likely that these and other key precedents concerning civil rights and civil liberties will be overruled.
John Roberts is unquestionably more conservative than Sandra Day O'Connor. With one conservative nominated, the Democrats must do all that they can to insist that the remaining nominee be more moderate.
The importance of what is at stake cannot be overstated. Roberts is 50 years old. Assuming that the second nominee is around the same age and that these justices remain until they are 85, like John Paul Stevens, they will be on the court until the year 2040.
The Senate must know who these two justices will be before proceeding further with either of them and must ensure that together they will not endanger our basic freedoms for decades to come.
Coleman and Chemerinsky are professors of law at Duke University School of Law in Durham, N.C.
It is the president's place to mold the court.
I'm sure these same law professors twist the meaning of separation of church and state.
This sort of little girl happy crap is the reason I no longer spend good money to buy the Houston Chronicle
It's good to know how the opposition thinks.
"Forget elections, forget the Constitution, just let us have our way" said the Democrats.
Since diversity is the most important thing in the world Bush should nominate Janice Rogers Brown.
Or Michael Luttig...
"Democrats need to make clear that since President Bush has already picked a conservative in Roberts for one vacancy, the other selection needs to be a more moderate Republican in the mold of O'Connor."
Republicans need to make clear that since President Bush won two national elections he can pick whomever he pleases.
I apologize to all and sundry that these two law professors who (perhaps deliberately) do not understand constitutional law, are from my state. There are some folks here including some laymen, who understand the Constitution better than these two shills for the Democrats.
Congressman Billybob
Latest column: "The Constitution is Finished: Not the US One, the Atlanta One"
Pick the youngest and most conservative and smartest strict constitutionalist he can find. So that person stays on long after Justice Stevens and Ginsberg are taking dirt naps.
So by their logic, no Supreme Court justice who disagreed with the Dred Scott decision should have been confirmed since 1857.
Interesting that these law professors at Duke University in Durham, North Carolina, publish their liberal opinion in a Texas newspaper. Their lawyerer opinion is not sanctioned in the Constitution that I, a non-lawyer, have read and understand.
Democrats, and these law professors should read Federalist No. 66:
It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.
Very odd.
Under the Constitution, the Senate, not just a minority party, has no right to "insist" on anything this way.
Being a minority party, the Democrats have no power to insist on this, even if they had the right.
It's no reflection on your state.
I think we all know these two professors understand Constitutional Law quite well; they just don't like it.
I just looked it up in my liberal Constitution and found the package deal clause in the penumbra - right next to the privacy clause and fairly near the discussion of trimesters.
The American people have spoken! When our citizenry voted him into office they entrusted President Bush (not Kerry, not Dean, not anyone else) with the decision of who gets nominated.
True enough but I'll be damned if I'm going to pay for it
Oh, I'm sure they like it all right if/when it's a democrat president appointing a liberal. A-holes.
I don't think so. Roberts does not believe in the "Lost Constitution" doctrine (Scalia and Thomas). Instead, he says, "I don't have an overarching, uniform philosophy.", which means that he will respect the Congress as well as a lot of precedents. In short, he will not help the other conservative members of the Supreme Court, to reject "affirmative action" and abortion. On many issues (apart from business ones), he will agree with Kennedy. Which is not very conservative...
And after the demonrats have insisted on this... they will insist that the President provide them with his "potential nominees" to replace each existing SCOTUS justice should they die or quit their position!
It is about time to post the whining baby symbol of the Demonrats yet again!
allow me to reiterate what C's Wife said, Roberts is unquestionably more conservative than O'connor. that is a given. Upon what do you base your understanding of Roberts' judicial philosophy, ALessandro?
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