July 3, 2008

Supreme Sunshine Scenario

Hatched by Dafydd

Maybe I'm slow (shut up, you in the back), but this just occurred to me...

If John S. McCain wins in November, then he will get to appoint at least one, possibly as many as three Supreme Court justices; the odds are that John Paul Stevens (who will be 89 years old when the next president is sworn at) will have to retire, as well as Ruth Bader Ginsburg (she will turn 76 a couple of months into the new term). Antonin Scalia will turn 73 about the same time Ginsburg has her birthday; and even Anthony Kennedy is in his seventies.

If McCain names someone like John Roberts or Samuel Alito to replace Stevens or Ginsburg, the nominee would be hard to filibuster in the Senate. It's one thing (and already upsetting to millions of American voters) to prevent an appellate-court nominee from getting an up-or-down vote.

But to prevent a vote on a Supreme Court nominee and leave the Court in a state where every controversial case ends in a 4-4 split, would be so brazenly politicizing that it would anger even centrist Democrats. Republicans would romp in the 2010 elections.

Yet absent a filibuster, a new Roberts or Alito has a very good chance of winning -- if not when named, then after the next congressional election. Again, ordinary American voters have a distaste for senators who openly oppose a Supreme Court nominee for obviously political reasons.

So what happens if we can get another Roberts on the bench? One intriguing idea is this: The very next time the Court hears a case that hinges on granting habeas corpus rights to enemy combatants captured and held abroad, it's entirely possible that the new Court will simply reverse the previous Court's Boumediene.

Why not? Which of the four dissenting justices -- Scalia, Clarence Thomas, Roberts, or Alito -- is going to flip over to counteract the new justice's vote to overturn? Kennedy will no longer be the "swing vote," because there will be a solid, 5-justice majority of judicial conservatives.

Certainly liberals are not going to get very far screaming about stare decisis -- the general bias courts should have against radically changing the law by court decision -- because the obvious rejoinder is that that is exactly what the Court did in Boumediene in the first place: It created a brand, new "right" out of thin air. In addition, it will only have been law for a couple of controversial, strife-filled years, hence not yet embroidered into the fabric of American society; and it will already have proven to be unworkable in the real world.

I think it would be an easy call. Justice Kennedy can write the dissenting opinion, if he wants.

So this may not be the catastrophe we all fear... if John McCain beats Barack H. Obama. Contrariwise, if we send B.O. to the White House, the Court will become even more noisome.

Think a second time, conservatives.

Hatched by Dafydd on this day, July 3, 2008, at the time of 8:17 PM

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Comments

The following hissed in response by: nash

My bet is that McCain will appoint another bunch of Kennedys, Stevens, and Ginsbergs. He's the same guy that brought us campaign finance reform that has resulted in more money and corruption into politics, refuses to give up amnesty (and even recognize it for what it is) despite the vociferous objections of the American public, and has bought into the global warming nonsense.

The above hissed in response by: nash [TypeKey Profile Page] at July 3, 2008 11:33 PM

The following hissed in response by: Nels Nelson

If he had his way I suspect McCain would nominate someone like Earl Warren - a loyal pal who he swears is a good, fair conservative, with little to no experience as a judge.

Then again, I would have said the same thing about Bush, who gave us Roberts and Alito. (And almost Miers...)

The above hissed in response by: Nels Nelson [TypeKey Profile Page] at July 3, 2008 11:55 PM

The following hissed in response by: rightwingprof

My bet is that McCain will appoint another bunch of Kennedys, Stevens, and Ginsbergs. He's the same guy that brought us campaign finance reform that has resulted in more money and corruption into politics, refuses to give up amnesty (and even recognize it for what it is) despite the vociferous objections of the American public, and has bought into the global warming nonsense.

The utter lack of logic in this comment is amazing. What does campaign finance reform have to do with judges? Nothing. What does not screeching about those awful brown hordes have to do with judges? Nothing. What does global warming have to do with judges? Nothing.

The above hissed in response by: rightwingprof [TypeKey Profile Page] at July 4, 2008 5:13 AM

The following hissed in response by: Baggi

The Jury is still out on what sort of Judges McCain will pick to sit on the court.

The good news is, if Obama wins in November the odds that he will replace a good judge with a bad judge are minimal. More likely the liberal judges who have been waiting out President Bush will retire and be replaced with other liberal judges. Still bad but not a catastrophy.

As to McCain and what sort of Judges he will appoint. We'll get a pretty good idea of that once he picks his running mate (VP).

If he picks a running mate along the lines of Joe Lieberman, we can be assured that his Judges won't be in the mold of Roberts/Alito. If he picks someone like Thompson or Romney, etc, then we can put our fears aside.

My money is on Lieberman.

The above hissed in response by: Baggi [TypeKey Profile Page] at July 4, 2008 5:44 AM

The following hissed in response by: Mr. Michael

Like any other Executive, the President has to rely on his Staff to do the choosing, the vetting, the infighting... and the Executive has to be able to trust his staff to choose the people the Executive himself would have chosen, were he to have the time to do all of the grunt work.

So look to who McCain has chosen in his staff to do his grunt work on Judges... I can't remember them off the top of my head, but they seemed to be people who respect the Conservative Version of the Constitution and the role of the Courts.

All politicians act in the interests of their power sources, but I think McCain's choices of Judges will be comfortable to most Conservatives.

Now, since you're in a good mood, DO NOT look to his choice of Staff members on the issue of Immigration...

The above hissed in response by: Mr. Michael [TypeKey Profile Page] at July 4, 2008 9:25 AM

The following hissed in response by: BarbaraS

Defense first. Judges second. These are my priorities. I feel a whole lot more comfortable with McCain on these issues than Obama. He was not my choice, but he is the only choice now. No matter how much people hate McCain, he is still tons better than Obama. And the people who want to teach America lesson please understand that America may not recover from that lesson for decades if ever. And the republicans who stay home and not vote are putting the rest of us in jeopardy.

The above hissed in response by: BarbaraS [TypeKey Profile Page] at July 4, 2008 12:54 PM

The following hissed in response by: TerryeL

Any conservative who sits home and refuses to vote for McCain does not need to lecture the rest of us on anything. McCain will be more conservative on issues like defense, drilling, judges and immigration than Obama will. So if you sit home and pout then that just proves you don't really care about these issues. Cry baby sore losers need to realize they blew it and did not come up with an alternative, so now they can let the liberal Democrat win or they can vote for McCain. If they sit home, I will never again care what they think. Why should I? Where were they when we needed them? crying in their beer is where.

The above hissed in response by: TerryeL [TypeKey Profile Page] at July 4, 2008 6:44 PM

The following hissed in response by: TerryeL

And btw the men McCain has vetting judges are Ted Olson and Fred Thompson. And baggi, the next president might pick 3 judges and the last court brought us the Boumediene decision. Maybe you don' think that was disastrous, but I beg to differ.

The above hissed in response by: TerryeL [TypeKey Profile Page] at July 4, 2008 6:48 PM

The following hissed in response by: snochasr

It really doesn't matter who McCain nominates. What matters is how any judge can be confirmed through a Democrat-controlled Senate. Yes, there may be enough pressure on them to confirm even a Roberts or Alito, assumimg there are any so obviously qualified, but Democrats have a way of not responding to anything except their nutroots base and, so long as their are no severe consequences, they will continue to do so. Republicans MUST take back the Senate this year.

The only consolation is that if McCain loses and Democrats control the Senate, thanks to McCain, the judicial filibuster remains. Anybody want to bet that Democrats move to change the rules?

The above hissed in response by: snochasr [TypeKey Profile Page] at July 5, 2008 11:01 AM

The following hissed in response by: TerryeL

snochar:

Given the ages of the justices the Democrats might well not have a choice but to confirm.

The above hissed in response by: TerryeL [TypeKey Profile Page] at July 6, 2008 2:55 PM

The following hissed in response by: Davod

Rightwingprof:

"...What does campaign finance reform..., brown hoards,...global warming... have to do with judges? Nothing...."


To use some more of your own words - "The utter lack of logic in this comment is amazing." Where do you think any legistlation will end up. Do you really think McCain will not have learned anything from his the campaign finance reform debacle.

The above hissed in response by: Davod [TypeKey Profile Page] at July 6, 2008 3:36 PM

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