Posted by
BrianR on Tuesday, January 29, 2008 12:24:34 AM
“… I will appoint ‘originalist’ justices to the Supreme Court…”
Giuliani
In this election campaign we hear a great deal about the appointment of Justices of the Supreme Court of the United States (SCOTUS) as being a defining issue in our selection process. Now that the true ideological conservatives have left the race, we hear it even more often than before, kind of like the Bogeyman is used to frighten children into doing what their parents want them to do.
“If Hillary (Obama, Edwards) is elected, we can expect her to appoint three really liberal justices.”
“Giuliani (McCain, whomever) has promised to appoint ‘originalist’ justices.”
Let’s try to take a dispassionate look at what’s really at stake.
First of all, the two Justices most likely to retire are Ginsburg and Stevens. They’re the oldest. Both are very strongly partisan, to the point where they’d probably die in office rather than retire with a Republican President in office. If the Democrat wins the election, and they retire, that President would be able to appoint replacements that we can expect would be philosophically identical, so the current court composition would remain essentially unchanged.
Their polar opposite is Scalia, who would also probably die in office rather than retire with a Democrat President in office.
Three of the younger members – Alito, Roberts and Thomas – are pretty reliably constructionist, are nowhere near retirement, and so will probably remain on the bench at least throughout the next administration.
Kennedy, a Ford appointee, is on the young side and seems to have stepped into the Sandra Day O’Connor role as wild card. However, he does tend to side with the Scalia/Thomas bloc and is less unpredictable than O’Connor, though with a tendency to water down strong decisions.
Breyer is young, liberal, and a Clinton appointee. He’s not going anywhere for quite a while.
Then there’s Souter, a Bush 1 appointee, who was conservative-leaning from 1990 until 1993 when he became a member of the liberal wing of SCOTUS.
We also have to consider also-ran Harriet Miers, Bush 2’s first SCOTUS appointee, a member of his Texas Mafia with no judicial experience at all. Who knows how she would have turned out, as she has absolutely no judicial record to examine.
What does all of this tell us as we consider it? The first thing that’s obvious is that judicial appointments are always a crapshoot. Souter started out conservative and swung liberal. But more importantly, a President who doesn’t have a firm basis in conservatism is unlikely to appoint dependably originalist (conservative) Justices. Bush 1 appointed Souter, Ford appointed Kennedy, Bush 2 wanted to appoint the unknown quantity Miers until his feet were held to the fire by conservatives. However, all the Justices appointed by Democrats have remained staunch liberals in their rulings and decisions.
So what does all this tell us about the election? First, a campaign promise is always open to “reinterpretation” once the candidate is in office. One man’s “originalist” is another man’s “too conservative to appoint”. Experience shows us that “less than conservative” Republicans tend to appoint less-than-originalist Justices. But there are no hard and fast rules; O’Connor was a Reagan appointee.
I predict that if the Democrat wins the White House, he/she may get two appointment opportunities: Ginsburg and Stevens. The net result is the balance of the Court remains unchanged.
If the Republican wins the race, he will probably get no appointment opportunities in his first term, barring ill health or death. If he should win a second term, he may STILL get no appointment opportunities barring ill health or death.
The only way the SCOTUS issue becomes important to the campaign is if a Republican wins, and if either Ginsburg or Stevens (or both) leave the bench due to health issues or death, and if that Republican lives up to his promise to appoint truly originalist judges, AND if those judges end up actually performing as advertised.
That’s a lot of “ifs”.