Monday, Jul 7, 2008
Mark Moller, senior fellow in constitutional studies, Cato Institute; editor-in-chief of Cato Supreme Court Review
Justice O'Connor's retirement presages a blockbuster fight over the next Supreme Court nomination. Her status as a judicial moderate only heightens the tension: Liberal activists can now complain that Bush will have an opportunity to replace a "swing vote" with a conservative "ideologue." A tough fight and filibuster is all but certain for any judge that watchdog groups label "right-wing." Generally, that seems to include judges who might enforce constitutional limits on federal and state governments.
There is only one problem: The label doesn't fit. That's surely the lesson of this surprising Supreme Court term -- which saw Clarence Thomas defending sick marijuana users in Gonzales vs. Raich and "liberal" justices, like John Paul Stevens, siding with rich property developers in Kelo vs. City of New London.
Predictably, liberal critics demand that Bush replace O'Connor with someone who shares her centrist tendencies. And yes, O'Connor was a swing vote. But conservatives should remind critics that O'Connor -- who spent a post-law-school year volunteering for Barry Goldwater's Senate reelection campaign -- also is far more of a "conservative" than her critics, right and left, are willing to credit. That's surely the lesson of this surprising Supreme Court term -- which saw O'Connor closing her tenure with stinging dissents in cases like Gonzales v. Raich, involving a Commerce Clause challenge to federal drug policy. There, she argued that the Court should aggressively place new constitutional limits on federal power.
The fact is, liberals are all mixed up about "conservative" judicial philosophy. For example, federalism, a liberal bugaboo, arguably works to liberals' benefit, since blue state policies (gay marriage, stem cell research, global warming) are most successful on the local level.
In fact, classic "conservative" judicial doctrine seems to be undergoing reassessment on the right. National Review's Ramesh Ponnuru, for example, recently pooh-poohed the federalism "revolution." Why encourage judges to rouse themselves, he asks? On average, they are no friends to conservatives. President Bush, too, has been AWOL in the big federalism cases. Indeed, he invariably asks the justices to give him extreme deference.
Thus the stage is set for the most incoherent political dust-up in recent memory: a ritualized fight over judicial nominees driven by habit and partisan rancor, in which the two major parties, while dutifully chanting old slogans, are more confused about what's at stake than ever before.
Phyllis Schlafly, founder and president, Eagle Forum Education & Legal Defense Fund
I expect President Bush to fulfill his campaign promise by appointing a justice like Scalia or Thomas. He would be someone who believes that the supreme law of the land is the constitution and not what the latest Supreme Court decision is.
Most conservatives are extremely distressed with the way the court has tried to rewrite the constitution and we want good judges, strict constitutionalists, who believe in the way the constitution was written and not the way some justices wish it was written. You've got a clear example of this with the Kelo decision.
The Supreme Court just reversed its very firm decision in the sodomy case. And if you can rethink sodomy, you can rethink abortion. We don't want someone who will say Roe v. Wade is the law of the land, because it isn't the law of the land. It's a Supreme Court decision.
After O'Connor's last two votes against the Ten Commandments, we're delighted that she has retired. Although, I do believe she was right on the Kelo case. She is noteworthy for switching back and forth. She kind of fits the stereotype of a woman who changes her mind.
Brian C. Anderson, senior editor of City Journal, the Manhattan Institute
With Sandra Day OConnor announcing her retirement, the battle over the courts will be even nastier than it would be if William Rehnquist were the justice stepping down, since in many important decisions, OConnor has been the swing vote empowering the courts liberal bloc.
That is, you wont be replacing one sometime originalist (Rehnquist) with another originalist -- though that may soon follow -- but a sometime advocate of the living Constitution (O'Connor) with an originalist. Thats an enormous threat to the Democrats, who for decades have been the party of the living Constitution, achieving through the courts what they couldnt win at the ballot box.
I think the filibuster deal puts the Democrats in a difficult spot, since they have agreed to filibuster only the most extreme of candidates, making it harder for them to oppose well-respected judges like J. Michael Luttig or John Roberts.
The important thing for conservatives will be to nominate a justice who upholds what Scalia calls the enduring Constitution. That means, he or she will understand that America adopted a written Constitution precisely because it doesnt change over time, as does the unwritten British constitution. It means that they believe high-court judges must base their decisions on the text and structure of the Constitution, as originally understood (and this implies that there are right and wrong readings of the law). And they must be impartial interpreters -- otherwise they are politicians.
Again, liberals will oppose such a nominee because they have become the party of the living, evolving Constitution on issues ranging from abortion to, most recently, property rights and religious expression in public, where liberal justices have discovered things in the Constitution that would have shocked and appalled its original architects.
Regarding potential nominees, Luttig would be a great choice -- hes a sharp legal thinker in the Scalia mold. Ive also been impressed by the legal writings of Michael McConnell. A worst-case scenerio would be the nomination of a non-originalist like Alberto Gonzales.
Ron Daniels, executive director of the Center for Constitutional Rights
Given the Bush administration's clear intent to push forward what has been called a conveyor belt of conservative, right-wing appointees to the judiciary, including the Supreme Court, this is a crucial moment in the country's history. There is the real danger that the Supreme Court will become simply a rubber stamp for the executive branch. It's a very frightening moment, because the culture of rights that we've built up over the last 100 years could be undone by appointments to the Supreme Court that tip the balance.
Coming from the vantage point of many of us who feel that civil liberties and the rule of law are under assault, you at least felt that you potentially had a chance with Sandra Day O'Connor on the court. In fact, very often people aimed their arguments at her, because she was the influential voice on the bench on many of these decisions. She saved the day for whatever vestige of affirmative action we have left. If the next appointment is to the right of O'Connor, someone like Scalia or Clarence Thomas, it's self-evident what will happen. It'll be 5-4 the other way on many critical decisions. There could be a fundamental sea change on cases like Roe vs. Wade and the last vestiges of affirmative action.
President Clinton set a pattern here. He did not appoint the most liberal judges he could have appointed. He appointed moderates, in the face of the Republicans crying, as they have a right to do, that they didn't want "liberal extremists." This has not been the case as relates to the Bush administration's recent appointments to the appellate division, and that's why there's the fear that, when it comes to the Supreme Court, he will appoint people in lockstep with the agenda of the radical right, allowing that agenda to be more readily imposed.
Democrats reserved the right, in a situation where they see a nominee as being extreme, to filibuster. If Bush comes forward with a nominee who is clearly anti-civil rights, anti-civil liberties, anti-labor, anti-women's progress, and anti-environment, it will have to be an all-out fight. That means massive pressure on Congress, both Democrats and Republicans, for moderation and for sanity. It means mobilizing demonstrations to increase the public outcry, so that the American public has a sense of what's at stake. And I wouldn't be surprised if that entailed people going to the point of civil disobedience to call this not only to the attention of the American public, but to the world. I can't forecast what types of civil disobedience might take place; I'm just saying it might go that far, in terms of people being willing to take dramatic steps to show the world that there are forces in this country that are not prepared to sacrifice the Bill of Rights to right-wing extremists.
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