Saturday, July 02, 2005

Who will follow Justice O'Conner?

Mike Rappaport at The Right Coast Blog makes an interesting observation.

The Republicans have another opportunity to appoint a Supreme Court Justice. This is not necessarily a cause for joy, even for Republicans. Consider the following hypothetical Supreme Court:

Chief Justice: Earl Warren (Eisenhower, 1953)
Associate Justice: William Brennan (Eisenhower, 1956)
Associate Justice: John Paul Stevens (Ford, 1975)
Associate Justice: Harry Blackmun (Nixon, 1970)
Associate Justice: David Souter (GHW Bush, 1990)
Associate Justice: Sandra Day O’Connor (Reagan, 1981)
Associate Justice: Potter Stewart (Eisenhower, 1958)
Associate Justice: Lewis Powell (Nixon, 1972)
Associate Justice: Anthony Kennedy (Reagan, 1988)

This is a very liberal Supreme Court. The first five represent a solid majority block for liberal positions and the remaining four are swing voters who will often support those liberal positions on issues ranging from affirmative action to abortion rights.

Sadly, all of these justices were appointed by Republicans. Indeed, every former Republican President from Eisenhower to George H. W. Bush made some of these appointments.

I wish I were confident that the President appreciated these facts, but I am not.

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During my lifetime there have been three Chief Justices, Warren, Burger and Rhenquist. All have been Republican appointees, and all have served well and honorably. All have also been lightening rods for controversy from time to time. I still remember the "Impeach Warren" billboards along Southern highways when my family moved from Kentucky to Georgia in the fifties. (Hmm...wonder what that was all about?)
The very helpful Wikipedia lists all the Supreme Court justices in a handy, well-organized chart showing all kinds of historic information. There is also an explanation of recess appointments which have been used to fill vacancies when the Senate is not in session. Such a provision is, of course, necessary in the event of a vacancy or vacancies when the Senate is not in session. Recess appointments expire at the end of the next Senate session if not approved by the Senate, but any failure on the part of the Senate to approve either that appointee or a sucessor would open the door for yet another recess appointment.
According to a Drudge report link at the time (now gone, unfortunately) the president was already contemplating (or leading others to believe he might be contemplating) a recess appointment of Clarence Thomas as Chief Justice. [Here's another link from last November] Even if nothing came of it, floating the notion represents a brilliant piece of political capital investment. It was a no-lose gesture without any downside. It was then that I realized how very gifted George Bush is politically.
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In the meantime, brighter minds than mine are hard at work looking into the endless permutations of what scenario might play out next with the announcement of Justice O'Connor's retirement. She's not gone yet, you know. She only made an announcement that whe was gonna be gone. Time (and timing, hello) is of the proverbial essence...
And the news isn't out but a few hours.
I have an important birthday party to go to. I think I'll let the Independence Day weekend pass, enjoy some real fireworks, and take a look at the political cesspool next week.
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I'm not alone thinking about recess appointments.
Hugh Hewett says...
It would also be useful to start reminding people that there have been more than 300 recess appointments of judges in the country's history, beginning with George Washington, and including appointments to the Supreme Court. Eisenhower used recess appointments to put Chief Justice Warren, and Justices Brennan and Stewart on the bench. If the Senate gets roiled by procedural obstructionism, President Bush should be prepared to place his nominee on the court and allow the process to catch up with the new Justice sometime before the end of 2006.

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