Reportedly, Senate Majority Leader Bill Frist is going to bring the nomination of Priscilla Owens to the floor for a vote today--subject to the threatened filibuster by the Democrats and a vote on the rules change--the so-called nuclear option.
Aside from the sadistic tempting of political junkies nationwide, I must say that it is about time. To be honest, I am tired of the waiting and I want to see what happens.
But the battle of judicial nominees carries some pretty significant baggage, the role of the three branches of government, the battle between the parties, and ultimately the fate of the Supreme Court. This much intrigue makes for high drama--if it weren't so childish.
The problem as I see it revolves around the Supreme Court--not Priscilla Owens or any other current nominee, but the Supremes. While it may be unclear whether Chief Justices Rehnquist or any other Justice will retire this year, it seems increasingly likely that President Bush will get between 1 and 3 appointments before leaving office. Given the nature of a Supreme Court appointment and their relative infrequency of late, the GOP wants to ensure a vote (which as I will explain will happen--no matter what) and the Democrats want to preserve a way of defending against appointments they consider ill-advised (which is a crock). The result in the end could be disastrous for both parties because a Supreme Court nominee that is more middle of the road is a wild card--with the potential for Anthony Kennedy-like rulings resulting in law and interpretations tending to the unpredictable.
The aim of social conservatives, including President Bush, is to get social and judicial conservatives on the Supreme Court. Their viewpoint is that the bench is too "activist" and constantly rewriting the Constitution to suit what ever social aims the justices and judges may have. Of course liberal fear this judicial conservatism for many reasons, some good and some bad. Judicial conservatives in the Scalia or Thomas mold may start scaling back some of the "rights" that have been hard won in the courts over the past 40 years. The trend is moving in that direction and the appointment of a judicial conservative or strict constructionist may accelerate that move--including the fear of all fears--an overturning of Roe v. Wade.
Democrats on the other hand are beholden to a large extent to the successes they have had in the courts, the one area of government where they have been successful in the past 20 years on a consistent basis. Liberals, in order to maintain the "rights" they have successfully won, including abortion, affirmative action, and others. But the GOP doesn't want to see the continuation of such a broad reading of the Constitution. Labeling such judges activist gives the impression that judges with a more liberal mindset would be turning the constitution on it ear, radically altering the constitutional order.
The current battle over judicial nominees for the appeals courts spills over in that neither side wants to lose their advantage when a Supreme Court nominee comes up. If president Bush nominates to the Supreme Court someone who is very conservative socially, the Democrats, by not fighting for the filibuster and the 60-vote cloture rule, would lose their ability to oppose judicial nominees they oppose.
The result would be that in order to avoid a filibuster, President Bush would nominate someone less conservative the perhaps he or his political base would prefer. Still conservative enough to garner a filibuster threat. Democrats are then placed in the unenviable position of either proving the nominee to be unqualified or filibustering the nominee. If they go the filibuster route, they run the risk of being not only labeled obstructionist, but actually creating a political situation in which they simply cannot win. It is one thing to filibuster an Appeals Court nominee when the particular appeals court can continue operating as before. It is another thing to filibuster, on political grounds, a Supreme Court nominee.
Although clearly a false impression from a legal and constitutional viewpoint, most Americans have come to believe that there must be 9 justices on the Supreme Court, despite the fact that there is nothing legal or constitutionally mandated about the number. Democrats cannot successfully filibuster for too long a time a Supreme Court nominee or else the American public will view such tactics as somehow counter to the good order and functioning of the Supreme Court. The Democrats will look to moderate the nominee.
The result cold very well be Justice whose rulings and opinions provide too much unpredictability. One need only look at Chief Justice Earl Warren to see what happens when a Supreme Court nominee does not act as predicted by either the administration who selected the nominee or Congress. By denying the opposing party an extremist, the result is a judicial centrist, whose rulings while legally sound, may be politically explosive. A centrist could vote to deny review of an abortion case, but once taken may vote to overturn Roe--a Democratic nightmare. Of course the opposite could be true as well. In fact, neither party could predict what may happen with any certainty, certainty that would be present if a more conservative or more liberal justice is appointed.
In the end, the fight of the judicial nominees and the filibuster, if it continues on this path may result in Supreme Court nominees who are so centrist as to be unpredictable.
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