Monday, November 13, 2006

A Closely Divided Senate and the Supreme Court

In the comments to a previous post G-Veg asked me to pontificate and predict what effects, if any, a closely divided Senate, with the Democrats in the majority, will have should there be one or more vacancies on the Supreme Court before the end of President Bush’s term. Specifically, he framed the question in terms of what he called the “Scalia Revolution,” by which I assume he means the increased focus and reliance on methods of statutory and constitutional interpretation such as “textualism” and “originalism” (to be fair, the term “Scalia Revolution” isn’t G-Veg’s, as I’ve seen it before).

While I can do a lot with the pontification part; as for predictions I’m afraid I only have but one. My fear is that the current make-up of the Senate, combined with what we know about the President’s proclivity towards nominating people he’s comfortable with, makes “stealth” nominations the likely result. The last “stealth” nomination, Justice Souter, has, lets just say, not worked out well at all from a conservative jurisprudential point of view. Of course “stealth” nominations cut both ways by definition, so another Souter, while likely, isn’t guaranteed by any means. A “stealth” nomination could result in a fairly conservative justice, though the person is unlikely to be one in the mold of a Scalia or Thomas. Nominees with little to no judicial record, paper trail (judicial or otherwise), or hint of ideology (e.g., Harriet Miers) are likely because they stand a chance of being confirmed, politically. Remember a nominee has to go through three stages, Judiciary Committee, Cloture (the Seante term for ending floor debate, which requires a supermajority of 60 votes), and then vote to confirm by the full Senate. A conservative like a Scalia or Thomas likely will not make it past stages one or two, so the fact that they might survive three is of little relevance. A “stealth” nominee, however, likely makes it through the first two stages, which almost guarantees confirmation as there are “red state” democrats up for re-election in 2008 who would likely vote to confirm such a supposedly moderate nominee. Note, I’m not endorsing any of this either substantively or procedurally; I’m merely laying out the likely possibilities and offering a rather bleak prediction as to the outcome. I’m on the record numerous times of objecting to numerous parts of the modern confirmation process, but it is what it is and, to be honest, it has become a mess. As a result, it is, in my opinion not going to be fixed in the 110th Congress and, therefore, the result will be something less that desirable from a jurisprudential stand point (regardless of whether you are a legal conservative or a legal progressive), but something/someone that everyone (meaning at least 51 Senators) can live with politically.

At the risk of opening a can of worms that will further endanger me among my conservative friends, I have to say something about the so-called “Scalia Revolution.” I don’t deny its existence per se; rather I think its effect is more often than not overstated. Put another way, I actually think that Justice Thomas has had a far greater impact (in my opinion a negative impact, but that’s another post altogether) on modern Supreme Court jurisprudence than Justice Scalia has. Scalia gets the credit for two reasons: First, he’s been a judge/Justice for longer than Thomas has and; second, he’s far more publicly available and accessible about his jurisprudence than Thomas. For example, Scalia is known for his acerbic wit during oral argument (the only chance the general public really has to hear/see anything about the Justices), while Thomas is known for saying nothing and appearing to sleep during arguments (for the record, I’ve attended at least 15 SCOTUS oral arguments and have never once heard Thomas ask a question, at the same time, however, I’ve never observed him to be sleeping either). Moreover, Scalia is well-known for his strong dissents with respect to legislative history and his overall flamboyant writing style. Thomas, on the other hand, writes short, often technical opinions, that exhibit little of the flare that Scalia’s tend to. Once one gets past the veneer, however, Thomas’s opinions are more often far more doctrinal and true to “originalist” thinking than Scalia’s. The biggest impact that I think often goes unnoticed (except by Feddie at Southern Appeal) is Thomas’s disdain for stare decisis, which, as many of you know, is the principle that says that prior decisions or precedents should be adhered to and followed unless there is an overwhelming reason to reverse them and move in a new direction. As a long-standing supporter of stare decisis, I find Thomas’s opinions on the issue disturbing, short-sighted, and wrongheaded. In short, while I don’t dispute the impact Justice Scalia has had in the last 18 years since his appointment to the Supreme Court, I think in the end it will be Thomas who will be looked upon as having led a conservative legal revolution, albeit quietly, that has a far greater impact on future SCOTUS jurisprudence. I could go on and on, but I think I’ve made the point I wanted to.

That having been said, I see little to no chance of another Thomas-like figure making it through a closely divided Senate. This is true even if the President’s political popularity were to rebound into the 50s or 60s. Simply put, I don’t think this President will expend the political capital when he can have a “stealth nomination” at a far lower cost to his legacy.


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