Flashbacks July 2005

Supreme Speculation

Byron York, Randall Kennedy, and Benjamin Wittes ponder the future of the Supreme Court and the coming confirmation hearings

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."

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