From the Left....
by Jason Cecil
The current term of the United States Supreme Court is winding
down. So far, the Court has ruled that: we cannot sue our HMOs
in federal court for paying our physicians to deny medical care,
grandparents "rights" do not trump a parent's rights,
violence against women cannot be made a federal crime using the
Commerce Clause, the FCC cannot force the Playboy channel and
its brethen to be shown only at night, and school prayer is still
unconstitutional. We still await decisions on whether or not
a state can force a party to have an open primary, whether Miranda
warnings must be given, and whether the Boy Scouts can actively
exclude homosexuals. Many decisions this term have been by the
now-mundane 5-4 majority.
As my learned friend has pointed out, the breakdown of the court
can be generalized in the following manner: conservative (Rehnquist,
Scalia, Thomas and Kennedy), liberal(Stevens, Ginsburg, Souter,
and Breyer), and the wildcard O'Connor. She has proven time
and again that she will switch sides depending on the issue and
the facts of the case. Her leanings are conservative, but not
nearly as hard core as Scalia or Thomas. The ages of our justices
raises an interesting question about who is about to retire and
who is not. Rehnquist most likely would rather die on the bench
during an oral argument than to willingly allow a Democrat to
appoint his successor. Rumor also has it that O'Connor covets
the Chief Justice's position, and with her status as the swing
vote in any close case, making her the first female Chief Justice
might make sense. Ginsburg has fought cancer recently, but O'Connor
did as well in the 1980s, and she is still on the Court. Speculation
about Scalia having wanderlust is welcome news. A man who judges
a 21st century world by 1787 standards is frightening. Luckily,
on the more controversial cases, Scalia tends to rant in the
minority. Perhaps that is a reason why he is tiring on being
a Justice.
The rabid conservatives in the Republican Party wish to downplay
the significance of this Presidential election on the future
of the Supreme Court. The civil rights gains of the 1960s were
won through the court system. While judicial decisions based
on personal mores should be avoided, who would deny that affirming
the Civil Rights Act of 1964, declaring that separate is inherently
unequal, and a protection of our rights was wrong? Yes, the
strict constructionists will argue that the only way to remove
personal values is to interpret the Constitution as our Founding
Fathers intended it to read in 1787. This ignores the reason
behind the beautiful simplicity of the Constitution. The Founding
Fathers were wise enough to know that they could not see into
the future, and made the Constitution so that it could grow and
meet the challenges of tomorrow. For the last 213 years, the
system has worked. The Constitution as living document has allowed
our nation to thrive. President Gore would likely appoint justices
who shared this view. President Bush II probably would not,
considering he thinks all judges should be like Scalia.
How liberal is Justice Stevens? If he is so concerned about
retiring when it's "safe" to retire, he should do so
immediately at the close of this term. That would allow Clinton
to appoint a successor, although the Republican Senate would
likely try to block it. You would think that Republicans have
learned their lesson with their PR nightmares following various
government shutdowns. Clinton is still a master politician,
which I believe explains much of the rabid hatred most Republicans
hold for the President. If Stevens would retire at the end of
this month, I can see the headlines of "partisan obstructionism"
hurled at Trent Lott and his minions as they tried to delay any
appointment until after the November elections. As always, time
will tell.
The party of the President does not always indicate how a
Justice will vote. O'Connor is not as conservative as Reagan
probably hoped she would be. Souter certainly has Bush, Sr.
ready to throttle whomever it was that promised that Souter was
a card carrying member of the Reagan Revolution in his heart.
Beyer and Ginsburg have not disappointed Clinton. Stevens was
appointed by Ford, but Ford is no conservative firebrand. Rehnquist
consistently does both Nixon and Reagan proud with his push for
states rights above all else. Kennedy must be a disappointment
to Ronnie as well, since he shows signs of having "centrist-itis"
quite often. Thomas is a conservative rock who will neither
forget nor forgive the Democrats' handling of his confirmation.
The unfortunate thing is that at 52, we could be forced to live
with him for another 30 years.
This country has a decision to make. Along with all the other
factors that go into a Presidential vote, the future of our national
jurisprudence needs to weigh significantly. The identity of
the President does not automatically determine the types of Justices
who will be appointed to the Supreme Court. What it does determine
is a philosophy behind judicial decision making that will drive
the appointment process. This does not include political pressures
to appease various constituencies and finding someone who is
vague enough on abortion to withstand press scrutiny. President
Gore is unlikely to appoint someone like Scalia to the Court,
but it is possible that someone could slip through the filter.
President Bush II is not likely to appoint a civil rights champion
(gun rights don't count), but one could slip by him just as Souter
slipped by his father.
The philosophy of the next President will be vitally important
in deciding how our national jurisprudence develops in the early
21st century. Will we face a bench that works to maintain the
progress our nation has made in the last 50 years? Or will we
face a bench that is just as activist on the conservative side
as the liberal judges of the 1960s and 1970s? Will we have justices
who will protect popular rights (such as the right to privacy)
or will we have justices who only value traditional, WASPy mores
and attempt to turn back the clock on many hard-fought gains?
The choice is up to you.
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. . . From the Right
By Wade Anderson
The Supreme Court's 1999-2000 term may be remembered by law
professors, law students, and judicial historians as a watershed
year for federalism, restraint of the Commerce Clause and 5-4
decisions. The next President will likely determine whether
the current Court's impact is felt well into the 21st century
or is simply dismissed as a judicial anomaly created by a slim
conservative majority.
When the next President recites the Oath of Office, Chief
Justice Rehnquist will be 76 years old. The oldest (and most
liberal), Stevens, will be 80. Justices O'Connor, Ginsburg,
Scalia, Kennedy, Breyer, Souter and Thomas will be 70, 67, 64,
64, 62 and 52 respectively. While age is certainly an important
factor to consider when attempting to predict which Justices
may leave the Court, it should not be the only factor considered.
For instance, it is no secret that Ginsburg has had significant
health problems. Likewise, rumors (apparently false) of bad
health continue to swirl around Justice O'Connor. Most interestingly,
friends of Justice Scalia have been commenting over the last
several months on his desire to leave the Court to pursue other
interests (like rain-making substantial sums of money no doubt).
But where does all this leave the next President?
In order to develop probable scenarios for both a Bush administration
and a Gore administration, it is useful to consider the current
conservative majority (Rehnquist, O'Connor, Scalia, Thomas and
Kennedy) and minority (Stevens, Ginsburg, Souter, and Breyer)
separately. Let's assume first that George W. wins. Rehnquist
and Scalia can leave knowing they'll get conservative replacements.
But that doesn't change the balance of power. However, if Stevens
and Ginsburg leave during a Bush administration, the majority
would now be 7-2, a significant conservative advantage. Of course,
it's entirely possible that Stevens and Ginsburg might stick
it out (making Stevens 84 at the end of Bush's first term).
Another interesting development concerns the significant possibility
that Bush would, upon Rehnquist's departure, appoint the United
States' first female Chief Justice, Sandra Day O'Connor. Given
George W.'s significant appeal with female voters, it would certainly
be a nice gratuity for their support as well as an implementation
of a "compassionate conservatism."
President Gore would also have the potential to shape the Court
B with one significant limitation that wouldn't affect Bush's
getting appointees confirmed by a Republican Senate. While Stevens
and Ginsburg could "safely" leave during a Gore administration,
Gore needs "majority" retirements in order to significantly
impact the Court. This too, could be a problem. Rehnquist, not
wanting to see his legacy overwritten, would be more apt to remain.
Not wanting to be the departure that tipped the scales, Scalia
would likely decide the same. In short, Gore will likely face
fewer opportunities to appoint new members of the Court than
Bush.
So who is on the short list for appointment to the nation's
highest court? The Houston Chronicle, in a recent article, noted
that Bush has said he admires Justice Scalia while Gore likes
former Justice Thurgood Marshall. If Gore wins, Judge Jose Cabranes
(2nd Circuit), Walter Dellinger (former acting U.S. Solicitor
General), Judge Merrick Garland (Fed. Circuit) and Kathleen Sullivan
(Dean of Stanford's Law School) are possibilities. For Bush,
Judge Samuel Alito, Jr. (3rd Circuit), Judge Emilio Garza (5th
Circuit), Judge Edith Jones (5th Circuit) and our very own Judge
Michael Luttig (4th Circuit) have been mentioned as potential
Supremes. No matter who wins, one thing is certain; the next
President will have a significant chance to profoundly affect
constitutional jurisprudence for decades to come.
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