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Thoughts on a potential Supreme Court nominee

A little while ago, I read on another blog the observation that any political group that isn't explicitly conservative will, eventually, become liberal. I'm not expert enough to rate the veracity of that thought, but I think it just might apply to Supreme Court justices.

I'm no great legal scholar either, but I have noticed that justices that aren't defined as "conservative" end up drifting farther and farther to the left during their tenure on the court. Seven of the nine current justices were nominated by Republicans, yet only three of them (Scalia, Rehnquist, and Thomas) vote consistently in a "conservative" manner. The other four (Stevens, O'Connor, Kennedy, and Souter) were all touted as "moderates" when they were put forth, but have steadily moved farther and farther to the left, to the point where Stevens is the considered the leader of the liberal wing.

I've often described myself as a "militant moderate," and I strongly believe in balance in our political system. I don't think either side or party should dominate overwhelmingly any part of our government (and every time I look at Massachusetts, the bluest of the blue states, I am reassured how right I am). But appointing moderates to the Supreme Court doesn't seem to work towards that goal.

And that's why I reluctantly agree that at least the next couple of appointments to the Supreme Court should be conservative, strict-constructionist people, to try to restore a semblence of balance to the Court. I'm no great fan of a lot of Rehnquist's, Scalia's, and Thomas' opinions, but I believe that they will do far less violence to the Constitution than the others will -- and have done. They need reinforcement. Calls for Democrats for "acceptable" moderates is a sucker bet -- they know that the odds are that any "centrist" will end up on the left are astonishingly high.

And if changing the non-Constitutional rules regarding fillibusters to exclude judicial nominees is what it takes, so be it. The Constitution explicitly says that the Congress shall make its own rules on how it operates, and they can change those rules as they see fit.


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Comments (12)

Jay: I can't find the exac... (Below threshold)

Jay: I can't find the exact quote or the author, but I recall a line from years back that institutions that are not ardently conservative inevitably become more and more liberal over time. Seems the same thing happens to Supreme Court justices.

The Supreme Court is a poli... (Below threshold)

The Supreme Court is a political body. People like to pretend that's not the case, but is one of the three branches of government and as political as any of the others, perhaps in slightly different ways, but political nonetheless. I think there is a tendency for any politician to drift with the times to some extent. Obviously there are occasional exceptions. It may be this drift you are recognizing, because whether conservatives like it or not, the general social drift for the entire tenure of the justices you're looking at has been to the left. So why are "conservatives" less susceptible? I think it has more to do with the intellectual clarity and integrity of the individual. Truth is, Kennedy, Stevens and Souter are essentially intellectual bowls of oatmeal compared with Rehnquist or Scalia, and Thomas is a rock-solid natural law guy who has one heck of a lot more intellectual capacity and consistency than most people realize.

I hope filibusters are elim... (Below threshold)
Oleg:

I hope filibusters are eliminated, just in case if/when democrats hold a majority again (like they did until mid-90s) the republicans will have nothing but themselves to blame.

Oleg

You don't like Judge Scalia... (Below threshold)
Adam:

You don't like Judge Scalia's opinions? What about them don't you like?

That the Supreme Court is p... (Below threshold)
Brad:

That the Supreme Court is political is a measure of the times we are in. It was not meant to be so. The Justices are supposed to rule from the Constitution, not political biases. The definition of liberal Justice and conservative Justice is the difference between legitimate and illegitimate.

Liberals are advancing an agenda and that agenda supersedes all else. This "end" justifies any "means" including the shreading of the Constitution. Moderation is generally a virtue but moderation in the defense of our liberty is not a virtue.

Incidently, as a defender of a two party system, you must be dismayed (as I am) about the collapse of the Democratic party. Not that I'm a Democrat, but I'd rather see a viable Democratic party freed of the radicals that have commandeered their helm. They don't need to be conservative, just not anti-American, anti-truth, anti-values, anti-Chritian...etc. Or, is that what a Conservative is (pro-American, pro-truth, pro-values, anti-anti-Chritian)?

The remark you are looking ... (Below threshold)
Dodd:

The remark you are looking for in one of Dr. Robert Conquest's (historian of the atrocities of Soviet Communism) Three Laws of Politics:

1. Everyone is conservative about what he knows best.

2. Any organization not explicitly right-wing sooner or later becomes left wing.

3. The simplest way to explain the behavior of any bureaucratic organization is to assume that it is controlled by a cabal of its enemies.

I'm still convinced that th... (Below threshold)
Russ:

I'm still convinced that the best choice for the Supreme Court is me.

Jay, I also ask wha... (Below threshold)

Jay,
I also ask what you have against Scalia's opinions? (Raich notwithstanding, because I think he was high when he wrote that).

The tendency of a moderate ... (Below threshold)

The tendency of a moderate to move left can be arrested, but it would take a slight change in the Constitution.

People like to point out th... (Below threshold)
Baggi:

People like to point out that three of the 5 moderate or liberal judges on the court were appointed by a Republican President.

What they fail to mention is that those three appointees had to get through a Democrat controlled Senate.

We know how tough it is for a Republican controlled Senate to get through a Conservative put up by a Republican President. How much tougher would it have been to get a Conservative nominee through a Democrat controlled Senate?

Of course they called them moderate! That's the media's way of saying we approve and the Democrat's way of saying thanks for giving us what we wanted.

I can only hope that if President Bush doesn't put up a Conservative for the court (You'll know just how conservative by how loudly the media and Democrats shout) the Republican Senate won't allow them to get through until he does.

Oleg:Nothing the R... (Below threshold)
fatman:

Oleg:

Nothing the Republicans do or don't do now will prevent the Democrats from changing the filibuster rule if/when they regain a majority in the Senate. Just as there was nothing preventing them from reducing the size of the super-majority needed to invoke cloture from two thirds to three fifths in 1976. When the Democrats enjoyed a much larger majority in the Senate than the Republicans do now.

That the Supreme Court i... (Below threshold)

That the Supreme Court is political is a measure of the times we are in. It was not meant to be so.

Sadly, what this demonstrates is that the Founders had some naive notions about politics. They also believed that American politics could be kept free of "faction" (partisanship), but most of them lived to see this notion disproved.

I would say that the idea the Supreme Court could be apolitical was a measure of the times in which the Constitution was written.




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