Centerfield

I'm holding onto the belief that men like John McCain and Joe Lieberman hold enough sway within the Senate that they will be able to avoid this showdown. McCain and Chaffee have already announced their opposition, bringing the GOP 55 down to 53. It will only take 4 more. With Hagel, Collins, Snowe, Murkowski, and Specter on the fence, there is still a chance that Frist cannot command his party. I'm also curious where Graham of South Carolina stands. He and McCain are pretty tight, I'm wondering if he would bend to pressure from him.

Posted by: AH at May 18, 2005 10:05 AM

In answer to your updated question...I think it's very likely. Both of those justices were appointed by Republican Presidents--Kennedy and O'Conner. The radical right certainly didn't realize Kennedy's stripes or they would have slaughtered Bush I for the nomination.

The point is that it's hard to really know what a justice will do until they get on the court. For example, I've heard Janice Rogers Brown painted as a member of the radical right. I don't know enough to disagree with that point of view, but I heard a very enlightening interview on (of all places) NPR yesterday that said while some of her views are conservative, she's actually quite "liberal" in others. For example, she actually used the term "driving while black" in one of her opinions, chastising law enforcement for racial profiling. I doubt even O'Connor would do that.

Posted by: AH at May 18, 2005 10:31 AM

I hope you're right. I think they've also got Sen. Snowe, in addition to McCain and Chafee, which brings it to 3 votes needed.

Do they have it? They certainly seem to think so, but Harry Reid seems fairly confident too. It's a down-to-the-wire type thing.

Posted by: William Swann at May 18, 2005 10:33 AM

Redstate is reporting that the Democrats may lose Ben Nelson, which makes sense since he is up for re-election in a Bush state. Personally, I think if he votes "yes," the Republicans will pick up the Nebraska senate seat by choking Nelson to death with the obstructionist charge.

My feeling is that although he is voting "no," McCain will not actively recruit others to vote against the leadership's position, nor should he, politically speaking. Let's not forget that Graham is from South Carolina.

My feeling is that Warner and Specter will reluctantly vote with leadership, citing the Democrat's unwillingness to compromise and strong opposition to the use of the filibuster on judicial nominees. Warner has adamently denied that he said he would vote "no" in recent quotes, and Specter has stated that he is under an extreme amount of pressure to vote "yes." I just don't think Frist would risk the blow to the President by having the nuclear option fail. The filibuster on judicial nominees is a thing of the past, IMO, barring any last minute compromise by Reid, like allowing all seven judges to be voted on.

I think Reid's confidence is a show of strength to his base. Regardless of how this turns out, he looks good by unifying the Democratic Party on this issue.

Posted by: Mathew at May 18, 2005 10:47 AM

I really hope we don't have any more appointees like Kennedy or O'Connor. Their opinions are mushy and, from a legal standpoint, almost incoherent. They offer no framework from which one could deduce how other similar cases might turn out when they get up to the court. They don't set forth actual rules which lower judges could use to apply the big picture judgment to individual cases.

Even if I can't have another Rehnquist or Scalia, I would rather have a Thurgood Marshall. At least you knew where you stood with him, even when you didn't agree. And there was a consistent, logically supported view of the Constitution with him, even if it was a view I largely disagreed with. You don't get that with the current "swing" justices.

Posted by: PatHMV at May 18, 2005 12:13 PM

Pat raises a great point. Arguably, the Supreme Court is better off if a GOP President appoints an arch- conservative who is of formidable intellect and then later a democratic President appoints an arch-liberal who is of formidable intellect. then you get a high level of passionate and well-reasoned debate, and ecisions you can hang a hat on.

I'll take that over the appointment of vitual nonentities, mediocrities with scant paper trails because they're head-nodding followers, not leaders. I'm only a layman, but I recall well reading and being inspired by past decisions made by the Supremes. Some of these decisions show America and humanity at its absolute finest. But too many of the decisions of the last decade or so are opaque, inscrutable, and smack of ends-oriented compromise over guiding principle.

Just to pull a couple names outta my butt, maybe we'd be better off if say, Bork and Dershowitz were on the bench than Kennedy or Thomas, who seems to be practically a mute...

Posted by: bk at May 18, 2005 01:27 PM

I really hope we don't have any more appointees like Kennedy or O'Connor. Their opinions are mushy and, from a legal standpoint, almost incoherent. They offer no framework from which one could deduce how other similar cases might turn out when they get up to the court. They don't set forth actual rules which lower judges could use to apply the big picture judgment to individual cases.

Even if I can't have another Rehnquist or Scalia, I would rather have a Thurgood Marshall. At least you knew where you stood with him, even when you didn't agree. And there was a consistent, logically supported view of the Constitution with him, even if it was a view I largely disagreed with. You don't get that with the current "swing" justices.

Posted by: PatHMV at May 18, 2005 03:02 PM

But, in a nation that is currently so divided, do we need idealogues--on either side--on the court? If most of the country is in the middle, shouldn't the court be as well?

Posted by: AH at May 18, 2005 03:05 PM

Sorry for the double post... the internet connection at my favorite coffee shop is a bit hit-or-miss today.

Abel, the problem with having the court "in the middle" is that there really isn't, in my opinion, a cohesive, logical middle ground which is articulable as a particular rule of law or rule of construction of the constitution. Some of the results may be "middle of the road", but there's not a lot of principle that can be drawn from, say Ropers v. Simmons other than that 5 justices on that day felt like the death penalty for someone one week shy of their 18th birthday was unconstitutional, even though it was constitutional for someone one week past that birthday.

Roper v. Simmons is a particularly useful example of the problem with Justice Kennedy in particular. In 1989, Justice Kennedy joined parts of an opinion written by Justice Scalia in the case of Standford v. Kentucky, which was also about the constitutionality of imposing the death penalty on 16 and 17 year olds. That opinion, which Justice Kennedy specifically concurred in, provided:

Having failed to establish a consensus against capital punishment for 16- and 17-year-old offenders through state and federal statutes and the behavior of prosecutors and juries, petitioners seek to demonstrate it through other indicia, including public opinion polls, the views of interest groups, and the positions adopted by various professional associations. We decline the invitation to rest constitutional law upon such uncertain foundations. A revised national consensus so broad, so clear, and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved.

The opinion went on to say that:

It has never been thought that this was a shorthand reference to the preferences of a majority of this Court.

Just 16 years later, in the opinion of Justice Kennedy, society's standards had "evolved" sufficiently for him to decide that, although it was constitutional to execute 17 year olds 16 years ago, it is no longer constitutional to do so. Although Justice Kennedy pays lip service to looking at the enactments of legislatures along the way, he says that, ultimately, it is up to the Court itself to decide what the American standards of decency are:

We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.

Kennedy acknowledges that in the 16 years since the earlier case, only 5 states had gone on to abolish the death penalty for minors. Yet he ultimately finds that those 5 are enough to suddenly tip the scales and render such punishment unconstitutional.

There is no rule of law, here. How many states must abolish a penalty before it becomes unconstitutional? 5? 10? 20? 37? It's entirely arbitary. In fact, according to the Roper opinion, at the time it was decided, 17 states (12 states in 1986 and 5 since then) which provide the death penalty for adults prohibited the death penalty for minors. According to the Constitution, it takes 38 states to ratify amendments to the Constitution. Yet Justice Kennedy decides that the actions of just 5 of them can combine to make something that, by HIS OWN CONCURRENCE, was constitutional in 1986 unconstitutional in 2005.

This is not middle ground, this is policy-making disguised as judicial interpretation. We gather no lessons from Justice Kennedy's opinion, no way to determine what other penalties may be "cruel and unusual", no way for legislators to make reasoned decisions in passing their laws. The opinion is simply, "I've changed my mind in the last 16 years, and I don't like this, so I'm going to find a way to get rid of it."

At least with Thurgood Marshall, he was consistently opposed to the death penalty. He felt it was cruel and usual in all instances. If there were a court full of Marshalls, we the people would know that if we wanted to change things, we would have to pass an amendment to the Constitution. With Kennedy, you can't even be sure his own, personal opinion is going to stay the same from one decade to the next.

Posted by: PatHMV at May 18, 2005 03:45 PM

The court could still be in the middle under the scenario I describe. I don't necessarily view the judges I described as ideologues, since to me this implies some basic unreasonableness, a "my side right or wrong" mentality.

I'm suggesting that possibly a compromise that was forged via the fair-minded clash of great intellects might be better and more principled than a compromise brokered by a group of of ends-oriented individuals with less eye to principle and precedent. I find that the latter type of group is prone to choosing the decision they want to make, and then crafting the reasoning to justify it.

That's how it feels sometimes anyway. I'm probably selling the supremes quite a bit short for the sake of making the contrast my argument requires.

Posted by: bk at May 18, 2005 03:51 PM

Labels for judges. I'm not sure that conservative vs. moderate vs. liberal really is the best way to describe judges. The politicization of the judiciary is problematic and that formulation reinforces it. For example Scalia sides with the "liberals" on some issues because he is actually a Constructionist, not a conservative.

I think you last line would be better put as to whether the President will nominate anti-Roe, pro-Roe, or ambiguous judges. I presume he will nominate anti-Roe judges which is one reason I and many others voted for him. I also expect my two Senators to approve of those judges, which isn't so hard to expect since they are Senators Coburn and Inhofe.

I really look forward to an America where abortion is dealt with through elections and the state legislatures. Hopefully it can somewhat depoliticize the judicial nominations battles and take abortion away from the Presidential race. All of a sudden Guiliani and Schwarzenneger become real possibilities for Republicans.

Posted by: doverspa at May 18, 2005 06:04 PM

There's no possibility of Guiliani or Schwarzenneger- unfortunately. The Reps remain controlled by its religious base. In terms of Supreme Court nominees, President Bush will not likely retreat from his agenda. Not because of the cynical view that he's throwing red meat at his base (always attributed to Rove's mastermind). Rather, because of his earnest and sincere belief that he's right.

I would love a 66% conservative (ala Sandra Day O'Connor) simply because such a nominee could be confirmed. But it's not going to happen. I see nothing in the future but Congressional gridlock and Supreme Court vacancies. The metaphor for current politics is CNN's old show "Crossfire"- polarized sides yelling at each other. And it makes my head hurt.

Posted by: kreiz at May 19, 2005 08:25 AM

Kreiz,

I think you underestimate the affect a reversal of Roe would have on the political underpinnings of the party. A whole lot of relative moderates stick strong with the Republican party because of judges and fiscal integrity (which the party has been throwing away of late, but that's another story). There are many federalist-oriented Republicans who oppose a federal ban on gay marriage and would likewise oppose a federal ban on abortions. But you don't hear about us that much right now because there's no point to it. We can't do much, either because Roe prohibits us or because we don't have broad enough political support to make national changes.

As Doverspa suggests, all of that changes once Roe goes away. Suddenly all of us more moderate Republicans have to take actual policy stands on issues like abortion and gay marriage. The Republican Party is far, far from unified on those issues, no matter how things might appear on the surface. Look at the Terri Schiavo tragedy. The media focused mainly on the religious conservatives because they were the ones making the most noise. I can tell you, having waded into the battle on other sites, that there a whole lot of good Republicans who were horrified at what the religious wing was doing. That may not have shown up in the national news, but it was there. To the extent we didn't make a bigger public fight, it was because we agree with the general principle that judges should interpret the Constitution, not impose new laws on the rest of us, and there was little point in picking a battle with people going in more or less the same direction. But when DeLay started essentially calling for activist conservative judges, reasonable people in the party like former Solicitor General Olson spoke up against it.

Once opposition to Roe and the judicial philosohpy it espoused no longer unites us, it's a whole new ball game.

Posted by: PatHMV at May 19, 2005 11:24 AM