Flashbacks July 2005

Supreme Speculation

Byron York, Randall Kennedy, and Benjamin Wittes ponder the future of the Supreme Court and the coming confirmation hearings
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On Friday, July 1, Supreme Court justice Sandra Day O'Connor announced her retirement, bringing a new urgency to the debates over who will take her place, how the confirmation process will unfold, and what direction the Court may take going forward. In recent years several Atlantic contributors have addressed such questions from a variety of perspectives.

In April 2005, Benjamin Wittes suggested that, regardless of whom Bush nominates to the Court, it would be counterproductive and needlessly damaging for the Democrats to engage in a bitter and protracted confirmation battle. After all, he suggested, it is virtually impossible for the Senate to be able to tease out, in the course of a confirmation hearing, how a given nominee will rule on important matters in years to come:

Looking back at the six most recent chief justices, one is struck by how little light the Senate proceedings shed, either on the sort of justices they would be or on the defining issues they would face. The Senate never gets it right.

What's more, he contended, blocking one nominee simply means that the process will be repeated. "After all the fuss," he wrote, "Bush will get what he wants anyway: a conservative chief justice. Why don't we dispense with the song and dance?"

Several months earlier, in "Supreme Irony" (November 2004), Wittes made the case that, regardless of who on the Court retires, one need not fear that the Court will veer radically to the right or the left.

The Supreme Court is not a radical institution, nor is it likely to become one as a result of any particular election. The stakes for the judiciary in presidential elections, including this one, are a lot lower than many people imagine....

Even on the Supreme Court the idiosyncrasies or ideological extremism of any one justice can have only a limited effect. Without four like-minded comrades his or her views are just noise.

Wittes contended, moreover, that we should be more concerned about excessive centrist blandness on the Court than about rampant ideology. It is a variety of strong and conflicting points of view, he argued, that leads to productive debate and effective solutions. But precisely because the Senate tends to weed out any strongly ideological candidate, only a moderate is likely to get through.

In "Rejection Sustained" (September 2002), however, Harvard law professor Randall Kennedy argued that "expecting senators to ignore politics when exercising this responsibility is silly."

Judges, after all, are policymakers who, like legislators and other officeholders, exercise discretion, express values, and weigh consequences in reaching conclusions. Whether one thinks a given nominee would be likely to carry out these tasks well—or even tolerably—depends on one's own political preferences and tenets. Of course, we (through our senators) need to evaluate the basic honesty and competence of nominees. But we need equally to assess their philosophy, ideology, politics.

Kennedy also argued that considering a candidate's ideology as a basis for assessing his or her fitness for the Court should be an acknowledged and accepted practice. Otherwise, he warned, "people who are nervous about opposing a nominee straightforwardly on ideological grounds search for any sort of peccadillo to serve as a non-ideological pretext for opposition." The unfortunate result, he observed, would be "scandal-mongering."

In "Back to Bork?" (March 2004), Byron York noted that in recent years Democrats have displayed fewer qualms about bringing ideology to bear on confirmation decisions. York reported that in 2001 Senator Charles Schumer had convened a hearing on the matter, asking such well-known lawyers as Laurence Tribe of Harvard Law School, Cass Sunstein of the University of Chicago, and Marcia Greenberger of the National Women's Law Center, to weigh in. Their consensus, York explained, was that

Only a more assertive and openly ideological Judiciary Committee ... could stop the White House from packing the courts with doctrinaire conservatives. Democrats simply had to be tougher on Bush nominees.

Since then, York noted, Democratic senators on the Judiciary Committee seem to have taken this advice to heart—"relentlessly pressing nominees for their innermost thoughts on hot-button questions of law." Given this newfound willingness to stake out ideological battle lines, York predicted that the next Supreme Court confirmation process would be a contentious one:

With the Republicans back in control of the Senate, and the biggest judicial prize—a Supreme Court vacancy—in sight, the chances that an ugly battle will occur soon are good.

As for what it may mean for the Court and the country if Bush successfully appoints one or more conservative nominees, Benjamin Wittes has offered a few predictions. In "Letting Go of Roe" (January/February 2005), he speculated about what might happen if the Court were to overturn Roe v. Wade.

Surprisingly, he suggested, such a development might in fact turn out to be a boon for abortion rights. After all, if abortion were to no longer be considered a constitutional right, Americans would be forced to vote on the issue. And that, he pointed out, is a prospect that strikes fear into the hearts of conservative politicians.

The backlash could be devastating for conservatism. Liberals should be salivating at their electoral prospects in a post-Roe world. The simple fact is that a majority of Americans want abortion legal at least some of the time, and the majority in a democracy tends to get what it wants on issues about which it cares strongly.

More recently, however, in "The Hapless Toad" (May 2005), Wittes expressed concern about the effect a conservative Court would have on another important issue—the environment. Conservative judges, he pointed out, tend to exhibit a "libertarian suspicion of regulatory power." As a general rule, protecting the environment from the depredations of private enterprise requires federal regulations, so the fact that conservatives are loath to employ such measures could spell trouble.

More than the fate of abortion rights or civil rights or criminal justice, what hangs in the balance in the future composition of the Supreme Court is ... the air we breathe and the water we drink.
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