Friday, December 27, 2002
So, what with all the horrible news around the world, let's talk about something completely irrelevant: Supreme Court Vacancies.
Okay, it's not completely irrelevant. But both conservatives and liberals have a vastly over-inflated sense of the importance of the Supreme Court.
Liberals think the Court picked the last election. Now, I think Bush v. Gore was a poor decision. I think the equal-protection rationale for the decision is very problematic, inconsistent with conservative principles, and, in any event, completely inconsistent with the remedy ordered. An Article II violation, meanwhile, was emotionally persuasive - the Florida Court decision was ridiculous, in no way reflected the law, and seemed designed to prejudice the outcome - would have entailed a massive innovation in doctrine. We'd need a whole new area of law to come up with tests to determine when a decision is "interpretation" and when it is inadmissable "law-making" - and this sort of thing is not what one associates with conservative jurisprudence. But all that aside, the Court did not change the overwhelmingly likely outcome in the 2000 elections. Had the Court refused to hear Bush v. Gore, the best-case outcome for the Gore camp would have been to have two slates emerge from Florida: one certified by the Secretary of State and reaffirmed by the Florida Legislature and the other certified by the Florida Supreme Court. In which case, Congress would have settled the matter. And Congress was at the time (and still is) controlled by the Republicans. What are the odds that they would have voted to make Gore President? Essentially nil. The Court's intervention weakened its own credibility in a bid to increase its power. It did not change political history.
Conservatives and liberals alike think that the Supreme Court, with the right appointees, would vote to overturn Roe v. Wade. They are both wrong. The Court is not going to overturn Roe v. Wade. A Court willing to take that dramatic step would never be confirmed by the Senate. The Court is very sensitive to its own credibility. It values that credibility more than the rightness of any one decision. Therefore, even if by stealth a Court were confirmed that intended to overturn Roe, it would not do so until there was a clear social consensus in favor of such action.
I do, by the way, expect Roe to be overturned some day. But not 5-4. Plessy v. Ferguson was effectively overturned by Brown v. Board of Ed. The latter decision was 9-0. Dred Scott was overturned by the Civil War, not by the Court. Lochner v. New York was not decisively laid to rest until FDR threatened to pack the Court; the Court had supported its own precedent against the social consensus until such a position became unsustainable. That's how it will be with Roe: when there is a general social consensus that the decision was wrong and must be changed, it will be changed. Not before.
The Court is not completely irrelevant, of course. It can change things at the margins. It can, like any branch of government, increase or decrease the people's confidence in its abilities, can arrogate more power to itself or dissipate it, and so forth. So it's interesting to speculate on how President Bush is going to shape the Court.
The most likely retirees are Rhenquist and O'Connor. O'Connor will only stay if she gets to be Chief Justice. Stevens will retire only when his health begins to fail. Scalia will retire if he gets bored or fed up. Ginsberg might do the same, or if her health became an issue. Thomas, Kennedy, Breyer and Souter will be on the Court for many years to come.
Rhenquist is the leading advocate of the "New Federalism," which, in fact, amounts to arrogating to the Court the responsibility for delineating the proper boundaries of state sovereignty (since there is no apparent hard-and-fast rule for such delineation). Liberals object that this amounts to the Court vetoing acts of Congress that it doesn't like when it can justify the veto on the grounds of state sovereignty, and letting such decisions slide when they don't object. In any event, without Rhenquist this particular judicial philosophy will drop a notch in prestige. The other two leading conservatives on the Court - Scalia and Thomas - have different bugaboos, and the liberals on the Court are actively hostile.
O'Connor is identified primarily with muddle. She is the least predictable and least comprehensible Justice on the Court. If she is elevated to Chief Justice, we can look forward to several years of total confusion. I hope President Bush doesn't make this mistake. If he doesn't, she's likely to retire.
With Rhenquist and O'Connor out, the state of Arizona will entirely lack representation on the Supreme Court. Why this does not prompt the Administration to immediately redress the under-representation of Arizona on the Court is beyond me (after all, Arizona has been trending into the toss-up column). But they seem more intent on elevating a Hispanic or female candidate.
I actually think Gonzales would be a perfectly fine choice for the Court. I don't think he's a Souter or a Scalia. He's not going to push a particular judicial philosophy strongly and I don't think he's a liberal manquee. He'll be a consensus man, and therefore a fit replacement for O'Connor. And I suspect he'll reason more coherently than she does.
Of the various Appeals Court nominees Bush has given us, I'm most pleased with Michael McConnell, possibly because he's one of the few of them that I know something about. In any event, what I know pleases me, and I hope there's ultimately a spot for him at the top. But I doubt it; he hasn't earned his political chops yet.
What I think is in some ways a more interesting question than "whom will Bush appoint to the Court" is "whom will he appoint Chief Justice." If he appoints someone from outside, it will have to be someone confirmable. That means someone without a strong judicial philosophy, frankly, because an obvious ideologue won't be confirmed, and frankly, Bush does not need a high-profile Supreme Court fight unless he is highly confident of victory. So for conservatives, I think an outside candidate means a weaker candidate.
Unless, of course, the inside candidate is awful. The most-often mentioned potential choices for a candidate from on the Court are: O'Connor, Kennedy and Scalia. O'Connor would, as stated above, be a disaster. Kennedy - who shows the most obvious signs of coveting the job - would be almost as bad. His decisions, unlike O'Connor's, appear to be reasoned. But the reasoning varies widely from case to case such that, in the end, my conclusion is that he's a sophist: he knows what a legal argument looks like, and constructs one to suit the conclusion he wants to come to in a particular case, regardless of whether it is consistent with precedent or his own past decisions. He's a mess.
Scalia would certainly make conservatives happy. But he would be a lousy choice, for two reasons. First, there would be a fight. Yes, Bush would likely win because, as a sitting Supreme Court Justice, it's hard to argue that Scalia would not be qualified for the job. But Scalia prides himself on being a gadfly, on picking fights for the sake of illustrating a principle, which means he has a potent record of statements - in decisions and in other writing - that will be used against him in confirmation hearings. Bush will have to give ground elsewhere - probably on his choice for a new member of the Court - in order to win a fight to make Scalia Chief.
And then, once he was confirmed, Scalia would be a lousy Chief for the same reasons that he would be a hard-to-confirm nominee. He's a provocateur, not a consensus builder. He revels in his dissents. He would be understood by everyone to be on the rightmost edge of the Court. If Bush nominated a Gonzales to fill the empty slot left by a Rhenquist retirement, and made Scalia Chief, Scalia would be Chief in name only because the center of the Court would form around Gonzales as the most articulate Justice most likely to bring Kennedy and O'Connor along with him.
I'm going to go out on a limb and say that the best inside candidate for Chief Justice is Clarence Thomas. The old claim of inexperience is no longer valid; next year he will have served on the Supreme Court for 12 years. He would be harder for liberals to fight this time than last time, for three reasons. First, he's already on the Court. Second, after Clinton the whole Anita Hill thing could not be repeated with a straight face. Third, and most importantly, there is an enormous difference between being appointed the the Court and being appointed Chief Justice. Back when Thomas was being appointed to the Court, he was derided as a Scalia tool. That's much less plausible if he's Chief Justice. How do you call someone an Uncle Tom when they're running the joint? Who, precisely, can pull the strings of a man who has risen to the absolute top of his profession and holds his position for life?
I also think Thomas' views are the most compatible with President Bush's views, more so than Scalia's or Rhenquist's. Rhenquist, as I said, is most identified with the "New Federalism." Scalia, meanwhile, is most identified as a species of Formalist - or, perhaps better, a hybrid of Formalist and Traditionalist. Thomas, by contrast, is best identified as a devotee of "Natural Law." Scalia, as a Formalist, would argue that non-ennumerated rights do not exist. Thomas, by contrast, has argued that rights really do exist out there in nature, and are not merely a creation of law, and that, for example, the Declaration of Independence is a good guide to what those rights are. Our natural rights are prior to the Constitution and, in some sense, overrule it. Of course, Thomas is a judicial conservative, which is to say he's against creating rights by judicial fiat; but his reasoning, in a nutshell, is that the basic right is the right of the people to self-government, which is violated by having the Court act as a ruling priesthood.
Scalia and Thomas vote alike most of the time. But where they differ, the differences are interesting, and in general Thomas differs when his understanding of Natural Law, which springs from the Declaration of Independence, conflicts with a pure judicial formalism. I think that President Bush would be more likely to vote as Thomas does than as Scalia when they do differ. I also think that Thomas' views are more likely to move the consensus on the Court going forward than are Scalia's; I think Scalia has made all the converts he is going to make, and for the rest of his term his opponents will devote themselves to arguing that he is, in fact, not a Formalist but a partisan - an argument that is easier to sustain in the wake of Bush v. Gore.
So there: you have my votes. I expect Gonzales to be appointed upon Rhenquist's departure, so I'm not bothering to vote for or against, only to predict that he won't be another Souter. I vote for Thomas to replace Rhenquist as Chief Justice. I vote for McConnell to be elevated to the Court as soon as possible, preferably to replace O'Connor.