September 13, 2004
What Bush May Do to the Court
by Nick Morgan
September 13, 2004 10:20 PM
Apropos some speculation about Bush's impact on the Supreme Court, should he be reelected, it's worth noting that Bush has never--to my knowledge--articulated a coherent or satisfying theory of judicial action. Presidents and presidential candidates just don't typically do such things. But Bush has certainly mentioned the courts, almost always in conjunction with "activist judges" and the sanctity of marriage that they destroy; and Bush has certainly made clear his stance on abortion.
Considering that as many as four justices may be on their way out during the next four years, I don't think there's much doubt that Bush's agenda for the Supreme Court will be keenly focused on expanding the power of states to regulate sexuality and abortion. Say goodbye to Roe and probably Lawrence.
Obviously, there are serious scholarly arguments why the Constitution has nothing to say about abortion, gay marriage, or sexual privacy generally. But I'm not holding my breath for another Scalia, who's often admirably principled, unless the champions for the religious right likely to be appointed by Bush are coincidentally principled.
A former unnamed law professor of mine has served on at least one presidential judicial selection committee for a U.S. Supreme Court nomination. The committee's role was to provide opinions to the President on a particular nominee's judicial philosophy, if one was discernable, and other feedback about the nominee's future potential role as a Justice. So, I disagree with your suggestion that Presidents don't at least investigate a candidate's background thoroughly consistent with a "coherent or satisfying theory of judicial action". It may well be that the President (or his staff) have such a theory in mind but choose to keep it out of the public debate.
Interestingly, the one nominee this prof provided feedback for was Justice Souter, under the first President Bush. What's fascinating about this process is that my prof's general opinion that he provided to the President was that Souter was largely an unknown, and his judicial opinions as a state supreme court justice did not reveal anything that could lead to generalizations about how he would be on the federal bench. President Bush selected Souter with the knowledge of that feedback. Interesting, isn't it?
During the 2000 race, Bush said several times that he planned to only appoint "strict constructionists." I'm not sure that he fully understands strict constructionism as a judicial philosophy, especially considering that he cited Justice Scalia as his most admired justice currently on the court.
Bush has never outright said that abortion is a factor in his choice of a SCOTUS nominee. On the other hand, Kerry has said that he will only appoint a justice who is a staunch supporter of the Roe holding. Sounds like a litmus test.
A strict constructionist can't support Roe simply on the grounds that the Contitution does not explicitly provide for a right to privacy/ bodily integrity, and so the states must be permitted to do what they want on the issue. (However, a strict constructionist also would have to strike down Congressional legislation on the issue because it takes such a stretch to consider it "interstate commerce.")
I don't think it's a bad litmus test for a Kerry judicial nominee to have to support Roe; the concept of a right to privacy is fairly fundamental to liberal social policy. If you don't think the Constitution protects such a right, Lawrence crumbles and we should all get arrested for our unnatural sexual acts.
Scalia is pretty consistent in his own wacky way; for example, the conservative philosophy is supposed to be pro law'n'order, but Scalia's majority opinions for Crawford and Blakely are like giant Christmas gifts for defense attornies. I'm reading a prospective law review article right now about how Crawford's ban on ex parte testimony is killing a lot of prosecutions. Scalia had to write it that way because the Sixth Amendment actually says that defendants have the right to confront witnesses against them. It's right there, in the text, so Scalia has to stick with it.
In contrast, Rehnquist dissented on the grounds that Crawford was bad for disrespecting the Roberts precedent (he wonders where Scalia's outrage over overthrowing Bowers is now) and because it would make life too hard for prosecutors.
First, a President's public statements about judicial nominees don't really tell us anything. It is the duty of every Republican President to claim he will only appoint "strict constructionists" to the bench. Bush Sr. surely claimed that he too would make conservative appointments to the bench, to please his supporters. And yet he nominated a "known unknown" in Souter. So, I am doubtful Bush Jr. will stick to his promise of nominating another Scalia or Thomas to the bench, especially given his track record of centrism in appointments to the Texas Supreme Court, and given the lack of a strong majority in the Senate.
As for Scalia's so-called consistency, I am skeptical. I tend to believe that Scalia inadvertently backed himself into a corner with respect to 6th amenmdent issues, with his vote in the politically-charged Apprendi case. Apprendi was a racist being prosecuted for committing a hate crime against a black victim. Scalia voted to reverse his conviction. I doubt he took the time to try and foresee the eventual implications of that decision.
I doubt that Bush has a strong grasp of everything that a particular judicial philosophy would entail. I don't, and I did manage to get into UT Law ;-)
Scalia's adherence to the Constitutional requirements for criminal law prosecution actually is quite consistent. I'll post on his history in that respect when I've more time and when I get my WestLaw and Lexis passwords. As for his feelings on hate crimes, he voted with Thomas to uphold Virginia's prohibition on cross-burning (which I personally would have overturned on First Amendment grounds).
>As for his feelings on hate crimes, he voted with Thomas to uphold Virginia's prohibition on cross-burning (which I personally would have overturned on First Amendment grounds).
It's my understanding that the Virginia statute is content-neutral--that is, that it applies to all cross-burnings, not just those that are intended to intimidate or "send a message." If so, what would be the basis for overturning it on first amendment grounds?
BTW, I would not be overly generous in praise of Scalia. If memory serves, he even heaped scorn at the "equal protection" argument in his dissent in Lawrence v. Texas.
"I don't think there's much doubt that Bush's agenda for the Supreme Court will be keenly focused on expanding the power of states to regulate sexuality and abortion. Say goodbye to Roe and probably Lawrence."
If Bush gets reelected the chances of this happening -- putting on 4 members of the Court who will vote with Scalia, Rehnquist, & Thomas, and hence overrule Roe & Lawrence -- are slim to none.
First, not only would Bush have to win, but the right-wing, and I mean the far righ-wing would have to win almost landslides in the Senate. Unless that occurs there is no way that 4 rightwing Supreme Court justices will just cruise their way to Supreme Court vacancies. It's far more likely that some of those Justices would get "Borked" and Bush would have to settle for some compromise. If he can get someone who swings to the right of a Kennedy or O'Connor, but not as conservative as the other three -- someone like a Michael McConnell (who I think, if Bush wins, will be on the Supreme Court), he will be lucky. As long as Bush is able to avoid another Souter or Stevens, he should consider himself lucky.
>It's far more likely that some of those Justices would get "Borked" and Bush would have to settle for some compromise.
Um, not necessarily. Don't forget, he can also make recess appointments to the US Supreme Court.
"It's my understanding that the Virginia statute is content-neutral--that is, that it applies to all cross-burnings, not just those that are intended to intimidate or "send a message." If so, what would be the basis for overturning it on first amendment grounds?"
That's a bit like saying, "I believe the statute banning all flag-burnings is content-neutral, that is, it applies to all flag-burnings and not just those that are intended to convey a political message."
Virtually all flag-burnings convey a political message. Virtually all cross-burnings convey a socio/political message. Simply labeling a statute "content neutral" does not make it so.
"I don't think it's a bad litmus test for a Kerry judicial nominee to have to support Roe; the concept of a right to privacy is fairly fundamental to liberal social policy. If you don't think the Constitution protects such a right, Lawrence crumbles and we should all get arrested for our unnatural sexual acts."
Please. How about a litmus test of "making legal arguments" or how about "valid arguments." The above is neither. It doesn't follow from recognizing that Lawrence is moored in exactly no Constitutional text or principle, save the Griswold/Roe house of cards, that "we should all get arrested for our unnatural sexual acts." This is the sort of canard that marks so much elitist jurisprudence--a distrust of democracy and a disdain, therefore, for the rule of law.
The anti-sodomy laws overturned by Lawrence were mostly going the way of the dodo, just as restrictions on abortion were headed for easing in the early seventies. By creating Constitutional fictions to hasten both of these political processes, the Court has needlessly stoked resentment and fear in the populace (those parts that DO believe in democracy), diminished respect for the Court as a defender of the rule of law, and shortcircuited vital debates on key issues.
Having a litmus test requiring judges to sign onto that regime strikes me as a big price to pay to allay one's fear of being arrested for unnatural sexual acts, as you put it.