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Article Archives (07-8-2005)
And Then There Were Two: First Double Vacancy on the Supreme Court in 34 Years
Robert Novak, whose source on the Supreme Court is fellow Opus Dei member Antonin Scalia, is now reporting that Justice William Rehnquist has turned in his resignation. The White House is waiting for President Bush to return to Washington from the G8 summit (which should occur within hours) to officially accept the resignation. With the departure of Sandra Day O'Connor, we are now faced with two simultaneous openings on the Supreme Court, an event that has not occurred for 34 years.
The Supreme Court, the third branch of our nation's government, possesses the ability to invalidate actions of the other two branches as unconstitutional (under the concept of "judicial review" first enunciated in the famous case of Marbury v. Madison). Judicial review is the source of the Supreme Court's power and the reason cultural warriors on both sides of the spectrum covet control of the court. For social moderates and liberals, the retirement of Justice Day O'Connor during the presidency of George W. Bush is not a good thing. Most cases involving social issues before the court in recent years end up 5-4 with moderates gaining a slim advantage over their conservative brethren. The conservative troika of Scalia, Thomas and Rehnquist are firmly entrenched on the right. Stevens, Souter, Ginsburg and Breyer are generally on the center or left on social issues leaving Kennedy and O'Connor as swing votes. For the conservatives to win, they need to entice both Kennedy and O'Connor to their side. FN1. Of the two swing justices, Kennedy is the more reliably conservative. Thus, if Justice O'Connor were to be replaced with a hard-line conservative in the mold of Justice Scalia or Thomas, the ability of the moderates to garner a majority would be critically curtailed.
Wither Does The Supreme Court Go With Two Pending Bush Appointments?
The great fear of conservatives is another David Souter who, after appointment by President George H.W. Bush, promptly showed himself to be a moderate. He was a man with a thin record as a judge leaving no clear paper trail of where his judicial philosophy would lead once on the Supreme Court. In the confirmation process, this was seen as a positive development: a stealth candidate without bombs silently lurking in prior written opinions. Souter was easily confirmed but the lack of a paper trail came back and bit Bush, Sr. for, not only did Senate Democrats not know what sort of justice Souter would turn out to be, neither did the people who pushed his nomination.
Cultural conservatives see Attorney General Alberto Gonzales as another potential David Souter and have already come out vociferously against his nomination (even before the White House has floated his name in a trial balloon). The trashing of Gonzales has been so widespread that the President found it necessary to publicly defend his Attorney General: "Al Gonzales is a great friend of mine. When a friend gets attacked, I don't like it." Link. W. Bush may come off as a public buffoon but he rarely takes a position on any issue without a political reason behind the stance (usually dictated by his brain, Karl Rove). Why defend Al Gonzales? Mere friendship? I suggest the strongly worded public defense indicates the President is actively considering the appointment of A.G. Gonzales to the Supreme Court. He would be the first Hispanic American on the Supreme Court currying favor with the latino community (now the largest minority group in the United States).
The existence of two vacancies, in the opinion of Robert Novak and other observers, now increases the odds of an Alberto Gonzales appointment to the Supreme Court. Harry Reid, the Democratic leader in the Senate, has already endorsed a potential Gonzales appointment, thus, the confirmation hearings would turn into a cakewalk for Alberto. Secondly, Bush can attempt to mollify the cultural conservatives by giving them the red meat they crave with the other vacancy (created by Rehnquist's retirement): i.e., nomination of a straight-up, unreconstituted, Scalia-style strict constitutional constructionist.
This outcome--one moderate and one ultra-conservative--is about the best the democrats can hope for out of the two vacancies on the court. And, if Alberto Gonzales does turn into a Sandra Day O'Connor pragmatic moderate, then the status quo on the Supreme Court would be preserved after the two Bush appointments. But no one really knows where Supreme Court Justice Gonzales would come out until the bell sounds and he casts votes in actual cases. I for one am willing to take my chances with Al Gonzales. He screwed up miserably when he called the Geneva Convention's requirements for treatment of prisoners of war "quaint" and "obsolete"; however, when called to task for it, the guy fessed up to his mistake and changed course declaring that the US would comply with the requirements of the Geneva Convention. How many Bush officials have admitted to making mistakes and actually changed policy as a result? Gonzales is the only one I can think of. This guy strikes me as the sort of pragmatist who could fill the current O'Connor role on the court. Who does Karl Rove want to placate more: the hispanics or the Evangelical Christians? My money goes on the Hispanic vote. Viva Judge Gonzales!
Update: After returning from a brief stay in the hospital, Chief Rehnquist denied reports that he is about to retire (denial came 7-14-2005). This is interesting in that a week earlier he refused to comment upon reports that he was about to retire. No matter as I highly doubt Judge Rehnquist is sitting on the bench when the Supreme Court starts its next term in October, 2005: either he is dead of thyroid cancer or resigns by that time. Link.
JJR
7-8-2005
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Footnote 1: Justice Breyer, appointed by President Clinton as a moderate, has tended to side with the center/left. One noted exception, however, was the so-called "10 Commandments" cases that came down in the just completed term. Breyer joined the conservatives for the Texas case allowing display of the 10 Commandments on state property but joined the moderates in the companion case from Kentucky banning display of the 10 Commandments in a Kentucky courthouse. Link.
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