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William D. Randall's Blog (of no particular interest to no one in particular)
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Tuesday, July 05, 2005
Start the Clock The clock started ticking last Friday when Justice Sandra Day O'Connor announced her retirement after serving nearly 24 years on the Bench. Not really known as a conservative or as a moderate, Justice O'Connor was the pivotal swing vote in many cases leading some to call the Supreme Court the "O'Connor Court." When arguing cases in front of the Court, many would try to convince Justice O'Connor to side with them, rather then trying to convince the entire Court. Her announcement, on the Friday before the holiday weekend, is going to trigger the most vocal confirmation battle in the history of Washington, with many Democrats (myself included) wanting to see potential candidates fully vented and investigated by the Senate Judiciary Committee prior to being subjected to a floor vote. If it means the use of the filibuster, so be it. I have to admit that while most people would care less about the retirement of a Supreme Court Justice, let alone be able to name one, I have a personal stake in this matter. If another conservative justice is appointed to the court, many 5-4 cases, Such as Boy Scouts of America V. Dale will be decided 6-3, and it will make it nearly impossible to progress my issue to the federal level. While my case was of the religious nature, or lack thereof, many of the issues presented in Dale, such as the use of public accommodate statues similar to the Unruh Civil Rights Act, would have greatly helped in pursuing my matter further. O'Connor's swing vote lead to the reversal of the NJ Supreme Court. She also sided with the majority in Bush v. Gore (2000) to stop the Florida recounts. Of course she has also voted to up hold some liberal causes by agreeing that affirmative action can be utilized in the college admissions process (Grutter v. Bollinger (2003)). Some of the potential candidates that have been listed by Slate and in the CQ Researcher (Subscription only, See: Jost, Kennith "The Supreme Courts Future." The CQ Researcher 28 Jan 2005: 77-100.) instantly give me the creeps. Let's start with the most obvious candidate, Current U.S. Attorney General Alberto Gonzales. The running joke among Republican staffers in Washington is that "Gonzales is Spanish for Souter." Justice Souter was appointed to the Bench by Bush Sr. in order to be a moderate conservative voice and instead turned out to be too liberal for right wing conservative tastes. Would Gonzales be as liberal as Souter? Not likely, Gonzales is know for writing the so-called "torture memo" that allowed for the use of certain interrogation techniques against prisoners at Gitmo so imagine what that would likely mean for civil rights. The fact that he was also a previous White House Counsel and counsel to Bush while he was Governor of Texas, brings up the classic Abe Fortas situation. Justice Fortas was so close to President Johnson that he was known for answering the phones while the President was away. Bush would certainly voice his displeasure if Gonzales were to step out of line and Bush would face sudden scrutiny from religious conservatives. He does have one plus however, as Slate points out, He has constantly held to uphold stare decisis , or the need for a court to adhere to previous decisions while forming a judgment. The next contender is Michael McConnell, currently a judge with the 10th Circuit Court of Appeals and a former law professor at the University of Chicago. He may play well with others, he may have the backing of both liberal and conservative law professors, and he may have a "sunny disposition able to bring about change" (Slate), but it all means squat to me. He wrote an Amicus Curiae brief supporting the Scouts in Dale, he is questioning the Courts rationale in Bob Jones v. U.S. stating that the school's rule forbidding interracial relationships affected only those who choose to become part of the "religious community defined by Bob Jones" and he wrote a letter supporting a constiutional admendment to ban abortion. In all, he is a little too conservative for my tastes and he would have an extremely difficult time getting through a confirmation hearing. The third candidate, and potential front runner is Michael J. Luttig. A former clerk for Justice Scalia and a judge on the 4th Circuit, Judge Luttig would fit the mold for a "Scalia Conservative." He is known for striking down provisions of the Violence Against Women Act (which was upheld by SCOTUS) allowing women to sue states for damages. He may also uphold tough anti-crime legislation since his father was shot dead during a carjacking. A darkhorse option, that would allow for an easy confirmation, would be the naming of a sitting senator to the Court. Creating a senate vacancy in the process. Some are floating John Cornyn R-TX as a possible successor, but a co-worker of mine suggested Dianne Feinstein D-CA. She is not seen as being "far-left" and she has sided with the administration on a few issues. She defers from the President by supporting stem cell research. But she has also agreed to some conservative positions by opposing flag burning and limiting the ability of individuals to declare bankruptcy. Her moderate stances may at least lead the administration to take a glance at her. While the Court is not seen as being the most political branch of government, it is capable of generating a lot of political controversy. The President has to weigh a lot of factors in a potential successor such as race, sex, region of the country, constitutional ideology, previous decisions, writings outside of the courts, the ability of a nominee to be confirmed aka "the Bork Factor." Senate Democrats also have formed their own set of criteria and will utilize all of their options to ensure a "mini-Scalia" is not brought to the floor for a vote. The clock is running and the SCOTUS Draft of 2005 is currently in progress.
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