Justice O’Connor Resigns
Justice Sandra Day O’Connor just announced her retirement from the U. S. Supreme Court, effective on the approval of her successor. The first woman to serve on the Supreme Court, she was appointed by Ronald Reagan with hopes that she would be very conservative. Though she is considered relatively conservative in her views, she has evolved into being a swing vote on a Court that has issued a significant share of 5-4 rulings.
The present members of the Court have served together for 11 years, the longest period without a new Justice in U.S. History. Here are their names and the names of the President who appointed them, from the oldest appointment to the most recent: Rehnquist by Nixon (elevated to Chief Justice by Reagan); Stevens by Ford; O’Connor by Reagan; Scalia by Reagan; Kennedy by Reagan; Souter by Bush; Thomas by Bush; Breyer by Clinton; and Ginsburg by Clinton.
Justices are appointed for life and work in their own version of an ivory tower, where their personalities and intellects all affect one another and contribute to the shaping of their opinions. As Justice O’Connor points out in her book, The Majesty of the Law (which is a very good book for non-lawyers to read to learn more about the Court and the law), the American judicial system wisely frees judges from political influence by lifetime appointments and guaranteed payment of salaries without control by the power of the purse.
Intellectual stimulation by the other Justices has been known to change a Justice appreciably, one notable example being ex-KKK member and southern prosecutor Hugo Black, who though appointed by FDR as a southern progressive in an era of dire segregation, was influenced by Jewish Justice Frankfurter to open his mind further and then became the most liberal member of the Court.
Of the current Justices, five have philosophies about like the Presidents who appointed them, the two Clinton appointees being somewhat moderate liberals and Rehnquist, Scalia and Thomas being consistently conservative. The other four Justices, all appointed by Republicans, have turned out to be more liberal than expected, especially so in the case of Justice Stevens.
I used to chuckle in law school when I read a Supreme Court decision which turned on what a reasonable person would do, and the Court split 5-4 on deciding - which seemed to indicate the 5 thought the 4 were unreasonable. But where the legal line should be drawn is often a close call, especially in cases important enough to reach the U.S. Supreme Court.
I am in the camp of those who predict a battle royal over the appointment of a successor to Justice O’Connor. In spite of the spirit of the bipartisan 14 Senators who worked out the filibuster compromise, I expect George W. Bush to pick a strong conservative, probably fairly young, likely a woman and possibly of color. The Democrats will threaten filibuster and the Bush Administration will tell the moderate Republican Senators that the Democrats have reneged on the compromise. The Nuclear Option will again be threatened to ban the filibuster.
The present members of the Court have served together for 11 years, the longest period without a new Justice in U.S. History. Here are their names and the names of the President who appointed them, from the oldest appointment to the most recent: Rehnquist by Nixon (elevated to Chief Justice by Reagan); Stevens by Ford; O’Connor by Reagan; Scalia by Reagan; Kennedy by Reagan; Souter by Bush; Thomas by Bush; Breyer by Clinton; and Ginsburg by Clinton.
Justices are appointed for life and work in their own version of an ivory tower, where their personalities and intellects all affect one another and contribute to the shaping of their opinions. As Justice O’Connor points out in her book, The Majesty of the Law (which is a very good book for non-lawyers to read to learn more about the Court and the law), the American judicial system wisely frees judges from political influence by lifetime appointments and guaranteed payment of salaries without control by the power of the purse.
Intellectual stimulation by the other Justices has been known to change a Justice appreciably, one notable example being ex-KKK member and southern prosecutor Hugo Black, who though appointed by FDR as a southern progressive in an era of dire segregation, was influenced by Jewish Justice Frankfurter to open his mind further and then became the most liberal member of the Court.
Of the current Justices, five have philosophies about like the Presidents who appointed them, the two Clinton appointees being somewhat moderate liberals and Rehnquist, Scalia and Thomas being consistently conservative. The other four Justices, all appointed by Republicans, have turned out to be more liberal than expected, especially so in the case of Justice Stevens.
I used to chuckle in law school when I read a Supreme Court decision which turned on what a reasonable person would do, and the Court split 5-4 on deciding - which seemed to indicate the 5 thought the 4 were unreasonable. But where the legal line should be drawn is often a close call, especially in cases important enough to reach the U.S. Supreme Court.
I am in the camp of those who predict a battle royal over the appointment of a successor to Justice O’Connor. In spite of the spirit of the bipartisan 14 Senators who worked out the filibuster compromise, I expect George W. Bush to pick a strong conservative, probably fairly young, likely a woman and possibly of color. The Democrats will threaten filibuster and the Bush Administration will tell the moderate Republican Senators that the Democrats have reneged on the compromise. The Nuclear Option will again be threatened to ban the filibuster.
posted by Tom Blake | 1:20 PM
4 Comments:
Tom,
Do you think abortion will become the primary issue for both sides in this fight?
John from Phoenix
Abortion will be the primary meaty issue and the nominee will attempt to avoid it by claiming an open mind and saying it is not proper to speculate in advance on how one might rule on a specific issue. Any judge who has written opinions or articles on the abortion question might have to respond to questions on those writings, so the nominee may be a "closet" opponent of Roe v. Wade.
The primary fuzzy issue will be the judicial philosophy of so-called "strict construction" of the Constitution, which usually is code for complying with the ideology of the right wing of the Republican party. Republican Senators will use a lot of meaningless platitudes on this aspect during the hearings.
The real battle will be the power struggle involving the availability of the filibuster
Dad,
Do you have any idea what the "interview" process for a Supreme Court candidate is like? I'm refering to before they are announced as the nominee. Do the president's men sit down behind closed doors and talk with the candidate they are interested in to see how they stand on each issue, or do they only have the candidate's "body of work" to look at?
Have any former justices or candidates spoken candidly about what the "hiring" priocess was like?
I ask this because it does seem like so many jsutices haven't quite turned into the person people thought they were when appointed.
I'm also hoping that George II and pals "screw up" and we get somebody good.
The improtant issues to me are mainly first ammendment issues -- particularly th current hot-button on whether journos need to name sources -- and personal freedom issues.
Someone needs to stand up in this age of terror and fearmongering to be a voice of reason for our personal freedoms and privacy.
Chris
I recently read a book called "The Rehnquist Choice", by John W. Dean, in which he discussed the process used by Nixon to pick a Supreme Court nominee. As White House Counsel for Nixon, Dean was involved in the process, which is generally the same nowadays, except that the personal affairs of the prospective nominee are more closely scrutinized. FBI background checks are done and all the writings, speeches and published case decisions of the nominee are analyzed by administration people to see if they are compatible with what the President wants and to look for areas of possible attack by opponents. The administration people then have interviews with the prospects and all the data is gathered and considered by the team.
The prospect is not likely to be asked a point blank question on judicial issues, such as whether Roe v. Wade should be overruled. Instead, more generic questions are asked which should enable the team to accurately predict how the candidate would rule on such specific issues. If the prospect has issued written appellate decisions in a lower Court, those cases should give a good indication of how the prospect might rule
Nixon wanted a nominee with excellent academic credentials who would be against extending civil rights and liberties and would be young enough to serve for many years.. After considering several possible candidates, someone finally realized one of the Nixon search team members seemed to fill the bill quite well - Assistant Attorney General Rehnquist. Nixon got what he wanted, as Rehnquist has indeed been consistently opposed to extending civil rights and liberties and is the longest serving member of the present Court.
Once a prospect is decided upon, the team then may use role play to practice the nominee for handling the likely questions from Senators on the Judiciary Committee. The Bush people have been counting on this opportunity for quite a while, so they likely have done most of the pre-selection screening on prospects to consider. The fact that O'Connor, a female Justice, resigned first may have thrown them a little curve, because now I think they have to seriously consider a woman, whereas if they were replacing Rehnquist, I doubt a woman would have been as seriously considered. By the way, per the Dean book, Nixon thought a woman could never make a good Supreme Court Justice.
I doubt the Bush team will want to put someone on the Court who is passionate for the First Amendment. As for the current case involving the reporters covering the outing of the CIA agent, I think that outing the agent was a crime and there was no public interest served by the reporters refusing to cooperate in trying to find the criminal. I am hoping the prosecutor will end up finding out that the real journalistic scoundrel, Bob Novak, lied to the grand jury about his source, and he will be prosecuted for that crime using the evidence compelled from the two reporters who are under the contempt order.
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