Whack-A-Judge

It hasn't been a week has it?

Sandra Day O'Connor announced plans to retire from the Supreme Court, and advocates on the right and left are already lining up to bash prospective candidates for the vacancy.

Ted Kennedy, who's liver also plans to retire this summer, wants President Bush to nominate a candidate he considers “mainstream.” The last time Kennedy found the mainstream was in an upside-down Oldsmobile, and it is fairly safe to assume his idea of middle of the road would be unacceptable to not only Triple A and Republicans, but also the traditional conservative Democrats that dominate middle America.

On the other end of the spectrum, some conservatives are pushing for an extremely conservative judge, sensing that with dominance in the White House, House of Representatives and Senate, that this might now be the best chance they have of making a significant change to the basic makeup of the court.

All of this is compounded by the fact that Chief Justice William Rehnquist, suffering from thyroid cancer, may yet retire this summer, opening a dual vacancies on the court for the first time since 1971 when Rehnquist and Lewis Powell were selected to replace Hugo Black and John Marshall Harlan.

I do not follow the courts closely enough to be able to tell you which potential candidates are the “best,” and even those sites that claim to do so are merely speculating. I can however, make the following observations:

• President Bush's long-standing pledge not to use specific-issue “litmus tests” in selecting a potential justice is a good thing for all Americans, regardless of ideology. Whether a potential justice is for or against a specific case is not nearly as important as how they arrived at their decision. We need reasoned jurists, not ideologues.
• Bush's desire to appoint strict Constitutionalists means that it will be harder for un-elected judges to legislate from the bench. This will ensure a long-term, even application of the law, not subject to the whims of current events.
• Advocates on both extremes are going to blow the apparent ideology of any nominee far out of proportion, and spend far too little time based upon their actual suitability as judges. Again, we need reasoned jurists, not ideologues.
• Democrats—the “Party of No”—are almost certain to attempt to filibuster any nominee Bush sends for confirmation.
• An attempted filibuster of a Supreme Court nominee would likely be the death of the filibuster itself in judicial nominations. The improper use of a filibuster by Democrats would be seen as breaking the deal made earlier this year, resulting in the so-called “nuclear option,” where Republicans can exercise the option of simply voting to do away with the filibuster. Filibustering judicial nominees, it should be noted, was an exceedingly rare practice until racist southern Democrats tried to use them to stop nominees they felt might fight segregation.