Of the many legacies of George W. Bush, two of the most influential over the long term will likely be Chief Justice John Roberts and Justice Samuel Alito. Today, the eldest member of the Supreme Court, Justice John Paul Stevens, a Ford appointee, announced he is retiring at age 90. His retirement allows Obama to replace the Court’s liberal dean with another liberal and keep the balance of power on the court unchanged. And soon we will be immersed in the typical pre-announcement horse race news about possible nominees, what they mean, and what their role on the court could be. Already, names like Elena Kagan, the current Solicitor General, and Diane Wood, a judge on the 7th Circuit, among others are being discussed.
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While the President, of course, can choose anyone he pleases to replace Stevens, I hope that he takes a moment and thinks about the make up of the court and chooses a candidate outside the box – and that box, lately, has been judges of the U.S. Court of Appeals with degrees from Harvard or Yale. All 9 current justices served on one of the Courts of Appeals before joining the Supreme Court. While that gives them ample experience at the appellate level, it also gives them the kind of tunnel vision that those positions on Courts of that level tend to cause.
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I miss the days when Supreme Court justices came from a variety of walks of life. Some, like Justice Louis Brandeis (power lawyer) and Justice Abe Fortas (power lawyer and friend of LBJ), never served as judges at any point in their careers. Justice Oliver Wendell Holmes (Chief Judge, Massachusetts Supreme Judicial Court) and Justice William Brennan were both justices of state Supreme Courts before joining the federal top court. And others, like Chief Justice Earl Warren (Governor of California), Chief Justice William Howard Taft (President of the United States), Chief Justice John Marshall (Congressman and Secretary of State) and Justice Hugo Black (Senator from Alabama), were politicians before joining the court. These members gave the court a diverse background – not because of their race or gender, but because they didn’t come up through the exact same path to get to the Court. That gave them a wider perspective and unique views that often made the Court stronger. Warren’s political savvy helped the Court lend its gravitas to the civil rights fights of the 50s. Marshall’s acumen allowed the Court to navigate the treacherous fights between the Federalists and Anti-Federalists while expanding the Court’s role and power much farther than anyone had anticipated when the Constitution was originally ratified. Brandeis and Holmes are considered two of the most influential Justices of all time, and I’ve read a score of their opinions over the last three years in a variety of areas of the law.
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Regardless of whom President Obama selects, I would hope he would cast his net farther than the DC Circuit or some other Court of Appeals and look for a qualified person from outside the same old, same old. There are plenty of good state Supreme Court justices, members of the Senate and state Governors and Attorneys General who could lend a great deal of diversity to the court just by not being your typical Appeals Court Judge from Harvard. It is also important to note that Justice Stevens is the last remaining veteran on the Court – given the major role national defense plays, it may be good to have at least one justice with some kind of military background on the Court as well.
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I’m sure we’ll see dozens of names being bandied about in the next few days and we’ll know far more about the eventual nominee than anyone really should. But in the end, I think Obama will be best served by choosing a dark horse candidate that helps to shake things up on an otherwise homogeneous body.
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Apr 09th by Brian S
“Regardless of whom President Obama selects, I would hope he would cast his net farther than the DC Circuit or some other Court of Appeals and look for a qualified person from outside the same old, same old.”
Brian: I agree completely. I’d really like to see him pick someone who’s not currently on the bench. Some of our finest justices have come the ranks of politics. I’d like someone on the bench who knows something about something besides the law, like how real people live. No judges or law professors, please.
Umm… have you been watching what the Republican leadership has been saying of late? And isn’t November around the corner?
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Rs are going to call ANYONE HE NOMINATES a leftist/activist/Constitution-hating Marxist.
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Gear up for a hot summer of political bullshit Brian.
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If we didn’t have to go through the meat grinder on this, who would you select?
Provocative and thoughtful post.
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The way the process has evolved since Bork is nominees best have substantial Circuit Court experience so they can navigate the confirmation minefield with a known record, but one that is not so controversial that they might step on a blast plate. Most anyone with a subtantial recent record outside of the Court of Appeals will have take a position or position on some issue or issues that can be used to attack the suitability of their judicial philosophy or demeanor, even though the stand was taken in a totally different context.
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For a smooth confirmation process, from the names that have been thrown around, Garland would be the obvious choice, though I doubt he’ll be nominated.
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A minor correction — Stevens was named after August 8, 1974 — Ford was his guy. Cheers!
Grady – my mistake. I thought he was one of Nixon’s. I must have been thinking of Harry Blackmun. Updated the post.
This is exactly why I was prompting those who abstained from the election to just hold their noses and vote for McCain.
Edmund, Can you defend what the democrats in the Senate did to Roberts and Alito? Kennedy, Durbin, Leahy and Schumer bloviating and posturing for the cameras? It was an embarrassment, yet now that the shoe is on the other foot all I hear are cries. Where were you 5 years ago?
I don’t care whether Obama’s pick is from the bench or not as long as he or she adheres to an originalist interpretation of the Constitution, and not this “living constitution” bullcrap. Of course, the chances of that happening are between zero and none.
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Instead, he’ll pick some leftist whacko who believes in making it up as they go along. Unfortunately, the GOP will be powerless to stop it.
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The good news is that this is only trading one liberal for another. Or one liberal for a true leftist. The worry comes if Roberts, Scalia, Thomas, or Alito retire or die while Obama is in office. If that happens you’ll really see a battle royale.
Add to that list of worries Anthony Kennedy. He’s the swing vote, so if he’s replaced by an unabashed liberal it’ll spell doom for a proper reading of the Constitution too.
Ed, honestly, if he could choose anyone, I think the best choice would be Hillary Clinton.
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She’s got the legal background, it removes her from politics and lets her end her career as an elder stateswoman, she would brings pretty interesting view point to the court and I’m sure she could do the job.
Thurgood Marshall was on the Second Circuit for a time, so he WAS a Court of Appeals judge.
I like your idea Brian, but Grady gives us the reality of it.
Brain, I pondered the same Hillary appointment, not that I think it will happen. I honestly don’t know if she is qualified, but I certainly don’t think she’d be an asset to the court. Do we really need Bill up there chasing around interns and Ruth Baader Ginberg (ewwwww….)?
Thanks, James – replaced Thurgood with Abe Fortas. I forgot he was a 2nd circuit guy for a while.
Oh, I don’t think she’s got a snowball’s chance in hell of getting the nomination, but I think she’d be a great outside the box kind of choice. I think another good outside the box choice would be Russ Feingold. That would be the best way of getting back at the court for Citizens United. And it would make it harder for Republicans in the Senate to vote against him, being one of their own.
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That tends to be what happens when Presidents want to get Justices approved when it’s particularly acrimonious.
LL, five years ago… I can’t remember… I think I was drinking cold beer in Belize.
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But back to this SCOTUS thing. Four words: it’s an election year.
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Look, the D’s did there dance with Roberts and Alito, the R’s will do their dance. The difference in the dance you will be seeing this summer is that some of it will be the Dance of the Nut Jobs. We’ll have the Tea People, the Jesus people (without the Jesus), the shadowy organizations that no one has ever heard of… all finding their own set of facts (or making them up).
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The Sotomayor thing will look like mild in comparison.
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Or would you like to bet me that we don’t have “he’s a Socialist Judge”
misspelled on yet another tea party sign?
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Brian, you have just surprised me. I was going to post her name and then thought better of it. Of course, Grady is right. In fact, in this new conservative movement, it’s HELL NO — not just no. Whoever he picks, from Garland to Wood — it will be an opportunity for election-year sound bites to fire up the fund raising.
I am hearing that Obama wants to appoint another woman. Diane Woods of the 7th circuit is the most likely.
Won’t it be fun if republicans can drag out the confirmation until after the election in November?! Let’s Bork this candidate good. What goes around, comes around. Let’s play like the democrats!
Obama would gladly go with the lady from Park Ridge. But Hillary is still quietly dreaming and scheming for a role as Madame President — call it Hillarycare II fixing Obamacare I. She wouldn’t accept the nomination.
Other LL, Quite frankly, I am tired of playing spitball when the Democrats lob grenades. It doesn’t matter whether we disagree with the nomination in an quiet, reposed manner or scream bloody murder – we’re still called racist, wack-job, lunatic fringe, right wing extemist haters (even by those in our own party!) – so what the hell! Commence fire!
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Eddie, I’m glad you were sipping beer like the refined man that you are, but painting the Republican’s as off-the-deepend because it is an election year is completely disregarding the bizarre and twisted behavior of the left in off election years with Roberts and Alito.
About 6 months ago I predicted here on TC that Hillary could be, perhaps should be, scheming to swoop in when Obama crews up so bad that even his own left is pissing and moaning publicly. I’m not discounting a “Hillary to the Rescue” event in mid 2011. Another year of bad economic news, no job growth and silly foreign policy decisions and we could see it.
“the Dance of the Nut Jobs.”
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Disagree. I think Obama will do something shrewd here, but not necessarily outside the box. My money is on Kagan, whom I think will sail through the Senate after about a week or so of sound and fury.
I’m still trying to get the image of Clinton chasing Ginsburg around the courthouse out of my mind.
We will be trading a young leftist for an old leftist. i don’t care that he was appointed by Gerald Ford. Gerald ford was wrong a good share of the time, this was a ford f’up.
Obamas list short as it may be will consist of three or four well left of center jurists. One only needs to look at Sotamyer.
If I were in the Senate I would make them work very hard to get a leftist through.
A leftist, that’s an interesting assertion. The Washington Post had an editorial today by Ruth Marcus that states the very opposite. So, what qualifies someone as a liberal justice and liberal enough to equal a wash with Stevens? Is Sotomayor as liberal as Stevens?
Wash Post….cough, cough, really?
LL, I keep wondering when these turkeys will stop using the dried up and wrinkled Washington Poo Poo Paper as a reference. It’s a totally disproved liberal spin sender….nothing more.
Don’t be so hard on the Post. Other than the editorial page, it’s a pretty good paper. And if you just accept that the editorial page is going to be very liberal, other than on national defense, it’s not that bad.
Their bloggers are exceptionally liberal as well.
Brian, if I could tell where the editorial page ended and the news coverage began, I might agree about the WaPo.
I’m expecting Kagan, and the appointment to go relatively smoothly. If it makes all of you conservatives feel better, I’m not exactly jumping up and down over the choice. I think Stevens is hard to replace, and there are few who could do so, even if Democrats were spoiling for a fight, which (sigh) they don’t seem to be. (For those who don’t know, my son is named for Justice Brennan.)
And it’s only my opinion, but HRC will never be president — at the presidential level, Democrats simply do not go back and nominate someone who fell short in former elections. Not even a Clinton! I suppose she could become someone’s VP, but really, what would be the point? (from her perspective.)
Democrats might go back if the current administration keeps at the current clip. Heck, in a year we might have 15% unemployment and a VAT – woo-hoo! Gather round all ye democrats, but who? I’m hoping for a Clinton comeback, Bill, Hillary, Chelsea, Roger – any of then would be better than the current occupant of the WH.
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As for the editorial page at the WP being liberal, that just might be the understatement of the year!
You don’t have to go back to pre-historic times to find Democratic presidential candidates redux — some of us with gray hair (which would include Hillary in her natural state) recall Adlai Stevenson (lost to Eisenhower in ‘52 and ‘56) and remember that LBJ lost the nomination to JFK in 1960.
Brian S wrote “I think the best choice would be Hillary Clinton….she would brings pretty interesting view point to the court and I’m sure she could do the job.”
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What in the world is an “interesting view point” and how is that important?
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What does “do the job” even mean? Justices do not solve math problems. We’re not hiring a computer programmer. Both conservative originalists and liberal progressives can “do the job” in that they have the required degrees and experience, but will arrive at very different conclusions that have dramatically different effects on our country. The question is, what is the nominees judicial philosophy?
I’m curious LL, where do you go to get your information since the WaPo is such the liberal rag?
Brian, I can empathize with your thoughts on the Court. However, without trying to come off as condescending, I’ve done a decent amount of appellate work. As a young attorney, never forget that the Supreme Court is an appellate court. That means that for all the Hellers of the world, there are dozens of cases only a “law geek” could love. Take a look at the certs granted for the current term, there are a number that would bore the average Joe to death.
And that’s why I’m pretty sure that almost all future Justices will be from the DOJ-Appellate Court realm. Let’s not forget that both parties realize that they get few shots at the Court. Are they really going to risk appointing a State AG or politician to the Court who is not a “law geek?” Doubtful. Do you really want to risk someone getting bored and resigning after a few years? My guess is that the average state AG would tire of the job after 3 or 4 years when they realized that their career would be 95-98% talking about an arcane standard of review rather than abortion or affirmative action or other political topics. Right now, we have 8 law geeks on the Court, I’m expecting a ninth….Kagan may not be on an appellate court (though she was nominated), she is a “law geek” who was Dean at Harvard and is now at DOJ.
I enjoy your posts. It’s nice to see some attempt at actual legal talk and analysis rather than the talking points put out by parties that often bare little relevance to the questions presented.
Tom, an “interesting view point” means a viewpoint that isn’t focused strictly on the world as seen through the eyes of a federal appellate judge. She’s been in the White House, she’s run for President, she’s been in the Senate, and she’s been Secretary of State. All of those positions provide her with a unique opportunity to view the world and the federal government that none of the other justices have – or have had since a Hugo Black or Earl Warren was on the Court.
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Justices do not solve math problems, no. We can expect liberals to be liberal, and conservatives to be conservatives. I am not that interested the nominee’s judicial philosophy because that can and does change on the bench. Stevens was a moderate when he was appointed. What I am most concerned about is whether they will be fair and whether they come to the bench with any preconceived political philosophies that will color their opinions on the bench. We have to expect liberals will appoint liberals and conservatives will appoint conservatives. They won the election, they get to choose their appointees, within limits.
Ghost, I understand what you’re saying, but look at it this way – over the history of the Court, 41 of the 109 Justices haven’t had a judicial background. Other than the first couple of Courts, we haven’t seen mass waves of retirements because the non-judges got bored. I think there are enough non-judge “law geeks” out there that we can get someone who isn’t going to get bored who hasn’t sat on a federal appellate bench. Even if it’s a state Supreme Court, or a U.S. Attorney or a politician at the end of their career (like a Hillary Clinton). I think those types wouldn’t be bored to death writing about obscure habeus corpus issues or random questions of administrative law.
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Thanks for the kind comment.
Rest assured that 0bama will appoint a token — possibly a Black lesbian — without regard to qualifications.
“Rest assured that 0bama will appoint a token — possibly a Black lesbian — without regard to qualifications.”
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Perhaps he could get some recommendations from the Republican National Committee. What with all the recent research they have been doing on lesbianism I am sure they would be able to give an informed opinion of possible choices.
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Maybe Michael Steele (don’t anyone claim he is merely a token, but God you guys are so obvious and screw the pooch so monumentally when you try to play racial or gender politics) could call the president with some helpful advice. Maybe Steele could make a recommendation that would set us on a path to a Hip Hop SCOTUS. Steele being so “street” and everything.
“Perhaps he could get some recommendations from the Republican National Committee.”
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NO, but what he SHOULD do, unlike every other President for the last God-alone-knows-how-long, is actually take ADVICE from the Senate, as the Constitution requires. Perhaps if the Senate were to come up with a list of candidates that would be acceptable to both sides to advise the President, we might see a smoother ride for the CONSENT part.
I’m predicting it’s going to be Hilary Clinton, and that will be splendid.
Jack, is there a list of potential black lesbian candidates who are acceptable to Republicans ready to submit? That would make the “advice” part go much more smoothly and would be yet another feather in Michael Steele’s cap for having had the foresight to do that research.
Dan, to fit your criteria, I think Wanda Sykes would make an excellent choice.
Dan, are there any Black lesbians who would be acceptable to the Democrats?
Jack, I have no idea. I hadn’t realized it was a consideration until you brought it up.
But since the Republicans have a majority (using Republican math 41 is a majority of 100) shouldn’t Obama be obligated to appoint a conservative activist justice like Scalia who is fine with legislating from the bench and rewriting the constitution to serve current conservative views and ends? Wouldn’t that fit with the Republican definition of “bi-partisanship”?
My out-of-left-field pick: Patrick J. Fitzgerald.
Actually, Dan, it is the Demonrats’ idea of bipartisanship that the other side makes consessions but the Demonrats don’t.
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Also, it is the left that consistently “legislates from the bench.” Of course, one of the hallmarks of the left is that they do something, then scream that the other side is doing that same thing.
It’s hard to imagine Scalia receiving a unanimous Senate vote for confirmation in today’s political climate.
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“My out-of-left-field pick: Patrick J. Fitzgerald”
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Interesting
Think about it – the guy’s clearly got not patience for any type of public corruption/lying, etc. and doesn’t give a damn who he pisses off politically. He’s an equal opportunity asskicker.
Fitzgerald would be a fascinating pick. Out of the box, but not obscure or unknown.
Jack, if you can’t see Scalia as the activist judge he is then you don’t possess too much in the way of objectivity. Legislating from the bench can cut both ways. You just choose not to identify it as such when you find it to your liking politically.
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Very much like the social conservatives who go on and on about not wanting the government telling people how to live their lives. But then being only too happy to use the machinery of government to force others to live by their own narrow interpretation of Christianity when they possess the power to do so.
I like Fitzgerald as a US Attorney. I think he’d make a good AG as well. Not so much on the court – not as much investigating done there.
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Dan, Scalia is no more activist than any of the other justices on the Court. And when was the last time a social conservative was able to pass a law forcing others to live by a “narrow interpretation of Christianity” even when they had the power to do so?
Brian, you are right about them not being able to get very far with their agenda. But don’t say that too loudly. You don’t want them to catch on that the Republicans only pay lip service to their issues in order to get their votes with little intention of pushing for real action.
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That doesn’t mean they wouldn’t just love to use government to tell others how to live. If you don’t think so you haven’t been listening to them. I do listen to them. Nice folks (That isn’t sarcasm. Most of them are very nice people) like that bear watching. They have the potential to do real damage to the freedom of their fellow citizens. Their conviction that they are somehow doing God’s work makes them, in my opinion, more dangerous.
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I’ll close with a well known prayer. “God save us from your followers”.
Give us some examples, Dan.
“Also, it is the left that consistently “legislates from the bench.” Of course, one of the hallmarks of the left is that they do something, then scream that the other side is doing that same thing.”
Love the irony!!
After Citizens United v. Federal Election Commission can the Republicans PLEASE dispense with the “activist court” malarky? I mean REALLY…
As to judicial activism, we might start with Bush v. Gore and end with Citizens United. A strong case can be made that both are good examples of judicial activism. Although those are hardly the only two.
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I shy away from discussing Bush v. Gore because it is impossible to disengage it from the direct emotion of electoral politics. But the situation was not unique in our history. The disputed electoral votes of Florida that decided the election of 1876 were adjudicated without the Supreme Court becoming involved in an improper way. And the Republican candidate was awarded the Electoral votes of Florida in that one too. Even though, like Bush, he polled fewer popular votes nationwide he became president. The same may have happened in 2000 without the Court injecting itself improperly and damaging its own reputation.
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As Justice Stevens said in his dissent:
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“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law”.
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Tell me again how Scalia isn’t an activist Justice?
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When presented with a very narrow case in Citizens United, the majority led by Scalia, jumped through some pretty exotic hoops of judicial activism in order to rule on much broader issues that weren’t truly before them in order to do the legislating from the bench they wanted to do.
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Tell me again how Scalia isn’t an activist Justice?
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It doesn’t cease to be judicial activism when it serves (or you think it serves) your partisan political purposes. That doesn’t put a gloss on the turd.
Eric, you beat me to it with Citizens United. That one is going to be awful for the people of the country in the long term. Too many Republicans think it is going to benefit their party in the short term so they are ignoring the way in which it was decided and its long term repercussions.
Eric, I have found that very many conservatives don’t seem to get irony. Hence the frequency with which they say such unintentionally ironic things like, “it is the left that consistently legislates from the bench”.
Dan, Scalie is not an “activist” because he is a strict contructionist — exactly the opposite of an “activist” who will interpret the Constitution to meet political goals regardless of the document’s text. Yes, you can have “activits” Republican and “activists” Democrats in judges, but it’s hard to say that Scalia’s opinions attempt to write something into the Consitution that just isn’t there.
Anybody who argues that Citizens United was “judicial activism” hasn’t read the decision. It wasn’t judicial activism. It was simply a reversal of the poorly reasoned argument in the Austin case and a recognition that the Court had allowed a violation of the First Amendment.
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Those who think that Citizens United is somehow the death knell of American politics ignores that what is now legal had been legal since the founding of the Republic until 1991, when the Austin case was decided. If you guys think things were just hunky dory between 1991-2010 when it came to campaign finance, I have to question your sobriety.
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Citizens United is not activist, and it certainly isn’t the end of the world. Stare decisis is a great rule of thumb when you don’t have a good reason to overturn a past precedent. But when you do – especially when you’re using the Constitution as the justification – it should never stand in the way.
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I doubt any of you would have been screaming about judicial activism when the court overturned Plessy – a precedent that had stood twice as long as Austin did. Although, if you had been Democrats back then, maybe you would have.
Oh, and Dan, you might not want to be so keen on rushing to point out Rutherford B. Hayes election as president as what should have happened rather than Bush v. Gore. The backroom deals and horse trading that won him the job destroyed his presidency, as it was never viewed as legitimate. He also agreed, in order to obtain southern votes in the House, to end Reconstruction by removing federal troops from the South. That, coupled with the southern majority Court’s striking down of the 1875 Civil Rights Act started the Jim Crow era.
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Had the Supreme Court lent its aura of impartiality to that election, perhaps the next hundred years of American history might have been different – and a whole lot of suffering averted.
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Besides, even if the House of Representatives had resolved the 2000 election, Bush would still have won. But his presidency would have suffered from all the same problems that Hayes’ presidency suffered from, namely a stamp of illegitimacy. Not exactly the best thing you want heading into 9/11. Hindsight is 20/20, and I think it’s pretty clear that the Court made the right decision, even if you disagree with it politically.
Brian, your idea about Hillary intrigues me. Obviously, not my first choice, but, as much as I hate to say it, she’s a heck of a lot more reasonable (and intelligent) that other potential nominees. She sure couldn’t be worse than that unabashed racist Sotomayor
Brian, the Electoral Commission that gave Hayes the 1876 election was indeed not pretty. But the fact remains that the commission was the product of the political branches as it should have been. With all its warts it was a better way to go than having the Supreme Court step in and hand the election to a candidate. That Electoral Commission in 1876 rendered a much more legitimate decision than Bush v. Gore.
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Bush v. Gore damaged the credibility of the Court as an institution. Which is far more important than the outcome of any single election.
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I believe that it would have been better to have the 2000 election decided by the House if Florida had not been resolved before the Electoral Votes needed to be cast. As you point out, Bush would have won in the House and it would have been a perfectly proper election under the Constitution. Something that can’t be said of Bush v. Gore.
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An election going to the House would have been a fascinating civics lesson for America. And it wouldn’t have rendered Bush illegitimate. All one has to do is read the Constitution to see that such an election by the House is legitimate. It was Bush v. Gore that left a cloud over his head.
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I do think he likely would have gone the way of all the presidents who received fewer popular votes than their opponents if not for 9/11. That is to say he would have been a one termer. He seemed kind of rudderless early on. 9/11 seemed to give him a sense of purpose which he completely lacked before that.
Dan, you do know, of course, that the FLORIDA Supreme Court completely ignored State law in its decision, which the U.S. Supreme Court rightly overturned.
Jack, no it wasn’t rightly decided. And the prestige and credibility of the Court were damaged by what they did.
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Your guy won. If that is all that matters to you, fine. But sometimes there are larger and more important issues than the winning of a single election.
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The irony is that, had the majority on the Court not decided to hand the election to Bush, the Florida Electoral votes would not likely have been counted and Bush would have ultimately won anyway. But in a proper and constitutional manner. And that (the manner of his election) is far more important than that he was elected.
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If you take the long term view that is. The view that says the Constitution and the rule of law are more important than any single individual or political issue.
Dan, you can’t argue process with Republicans. They only care about the end result.
Lloyd, I just got a POLITICO update that says the White House is specifically saying Hillary won’t be the nominee. Which is too bad.
Dan, I disagree on the House issue. I think you’d have a lot of people crying bloody murder if their Representatives in the House voted differently than their states did – and you know that will happen, especially in split states like Virginia. And since a vote in the House can be expected to be a party line vote, I think you’d see far more cries of illegitimacy than you did in 1876 or in 2000 after the Bush v. Gore decision.
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Dan, I have to disagree with you on the Bush v. Gore decision. From a strictly legal point of view, all the Supreme Court did was tell the Florida Supreme Court that it could not wholesale rewrite Florida election law. The Florida Supreme Court was trying to count ballots in a way that was not allowed under Florida law. The Supreme Court barred them from doing so. There’s nothing illegitimate about that.
Brian, My take as a lowly geologist is that United extends First Amendement rights to corporations (foreign and domestic)and unions and overturned past decisions to do so – on a 5-4 basis none the less. To me (and really to any sane person in general) that defines judicial activism.
Eric, you bring out an important point. Often when it is felt that overturning a prior decision is appropriate a premium is placed on consensus. Often a serious attempt is made to achieve unanimity when cases concern major issues with far reaching consequences. Not always of course. But the value of it is obvious.
Eric, generally, corporations have first amendment rights, both before and after Citizens United. They aren’t as broad as the rights granted to individuals, but they still exist. Citizens United lifted the ban on corporate independent expenditures, but it didn’t change any of the limits on direct giving, nor did it allow foreign corporations to give directly (they are still barred). It only reversed portions of two decisions – the Austin case I noted before, and a piece of McConnell v. FEC that relied on Austin.
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The fact that it was 5-4 doesn’t make it judicial activism. Many cases are decided 5-4. The fact that Earl Warren was smart enough to recognize that Brown and its progeny would be stronger as unanimous decisions is a testament to his political acumen. But it’s not required. And it doesn’t mean it’s activist simply because it was along “ideological lines.”
The State legislatures should simply dispense with the election of electors and appoint them.
Brian S. Not buying it. I couldn’t care less about their perspective or life experiences because it’s irrelevant. They’re not supposed to use life experiences anyway. They’re supposed to apply the Constitution as it was originally intended
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Re judicial philosophy; moderates become liberals, and liberals stay liberals. Only conservatives are reliable, so you better believe judicial philosophy matters
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Yeah I know Obama won and will appoint a liberal, but that doesn’t mean I have to like or or can’t work to stop him or her if they’re a whackjob. If their judicial philosophy is too far out there we do need to work to stop them as best we can. Even losing battles are sometimes worth fighting.
Tom, they’re not robots. If you just apply the Constitution as it was originally intended, we might as well just program a computer to spit out the answer. But that’s not what the justices do (and there’s plenty of other things besides the Constitution that the court is called upon to interpret).
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I’m not going to argue that we shouldn’t work to ensure that the replacement is within the mainstream, but we can’t expect a moderate or a conservative. The best we can do is make sure the person is fair and not completely wacky.
I’ll take the computer over some of Obama’s nominees.
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Tom’s point is correct though, and it’s one that many conservatives did not take seriously when it was explained why Obama was such a gamble – elections have consequences! I suspect we would have seen appointments along the lines of Alito and Roberts from McCain, despite his progressive tendencies. Of course Souter and Stevens might not have retired if McCain had won, clinging till 2012 was probably an option for both.
Still laughing at “if McCain had won” – AHHHH!
“program a computer to spit out the answer”
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That’s not a half bad idea…
Computers could certainly do the redistricting for us! Then we wouldn’t need the courts to decide whether the districts are “fair.”
Tom, there is a difference between what someone is ’supposed’ to do and what someone actually does. you and i both know that no amount of begging/forcing/vetting will result in a 100% unbiased individual on the high court. life experiences, law school, career experience all culminate into a justice. the juror you are describing doesn’t exist. and if they do, theoretically, they only exist because of those life experiences that have made them a strict constructionist.
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asking someone to disavow their life experiences is like asking someone to disavow everything that happened to them since they were born. their life experiences will inevitably influence their decisions whether you like it or not.
jack,
im not a GIS expert, but i think they do use computers for redistricting…but a partisan legislator must ratify and that’s where we run into problems.
local gop, it isn’t just that the prior life experience of a potential justice shapes their worldview. It also gives them an understanding that their decisions have real world consequences and impact upon the daily lives of citizens. A not insignificant thing to understand.
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Those who have never left academia sometimes seem to have the notion that these decisions exist in a theoretical vacuum. That they are merely intellectual classroom exercises. They are not.
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That is why a justice like Sandra Day O’Connor was such a superior justice. Her experience on a cattle ranch and in Republican politics in Arizona gave her an appreciation of real life consequences that those who never leave academia seldom have. Not to mention her experience of being refused employment as a lawyer despite her academic record at Stanford simply because she was a woman.
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That might have given her an important perspective on discrimination cases that the guys who never left the classroom or the bench might not fully appreciate.
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Picking somebody outside the box might be a very fine idea.
On the other hand, we could just use a computer to replace the Court. We could have Diebold program it. (wink, wink)
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Maybe it could dispense a cupie doll with each decision.
Read that Scalia has the hots for Kagan. This may be the shrewd pick Cato was talking about. She may be able to build the bridge between the factions on the court that Stevens was known for.
Dan,
Wasn’t Ginsberg also refused a job after she left Columbia, well a job as a lawyer; I always heard she was offered the secretary position.
Here’s a name: Elizabeth Warren. What do you say Cato?
local gop, I think Ginsburg was turned down for a position as a clerk for a Supreme Court Justice because she was a woman.
And if we really want to go outside the box why not pick Judge Judy. It would also be difficult for Republicans to oppose her without ticking off their base.
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I figure folks who take Glenn Beck seriously would likely be regular watchers of Judge Judy and would very likely confuse her with a real judge. So opposing her would alienate the Republican base right before the election.
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It could be a diabolically clever pick.
I think he’ll appoint Neil Cohen. He matches the profile in the various media propaganda recently circulating.
[...] against her, but not a sufficient number that she could face a filibuster. Plus, as I noted in my previous article, she has never served as a judge – it will be good to have at least one member of the court [...]
[...] against her, but not a sufficient number that she could face a filibuster. Plus, as I noted in my previous article, she has never served as a judge – it will be good to have at least one member of the court [...]