Prof. Hasen has an admittedly parochial viewpoint on the the potential for a Supreme Court appointment, looking at one of the much discussed favorites and how it would impact the discrete area of election law decision from the Supreme Court. As Prof. Hasen notes, "This little parochial exercise in my area of the law is meant to prove a simple point: Whoever comes next on the Supreme Court will have a great deal of power, with a chance to change and influence the law in many areas that most Americans don’t even think about. That’s true even if a non-controversial candidate of the same political orientation is confirmed to replace a retiring Justice."
Of course, the Bush Adminstration wants to nominate someone who is reliably conservative on big ticket, high-profile moral issues, but do they really care about how such a nominee would rule on issues related to say ERISA or HIPAA. I don't really think so. It is difficult to find anyone, other than a syncophant, to agree with every policy position of the White House. In addition, the courts often have to deal with some pretty cutting edge issues, issues that go beyond what an Administration may be screening for. For example, I don't think the Eisenhower Administration screened Earl Warren for issues related to political gerrymandering (Baker v. Carr)--a case that arguably shifted the political dynamics in this country, or other cases of the civil rights era that fundamentally shifted the way we as Americans view the Bill of Rights. While Eisenhower may have been disappointed in Warren's performance, there is simply no way to screen for such matters.
I suppose my point is similar to that of Prof. Hasen. You cannot screen for positions on many issues. You have to pick and choose what is important to you. The Court will hear new issues all the time and you just have to live with the possiblity of a little uncertainty. So too will the Senate and the American people--it is the nature of an independent judiciary.
No comments:
Post a Comment