Monday, April 12, 2010

The Supreme Court without Justice Stevens

Lyle Denniston explains over at Scotusblog how the retirement of Justice Stevens will shift the internal dynamics of the Court because Justice Kennedy will now be the next senior justice behind Scalia and the Chief Justice. That is important because it is the most senior member for one side in a decision that gets to assign who writes the opinion. Justice Stevens, as the most senior behind the Chief Justice used that authority well to bring either Justice Kennedy or previously Justice O'Connor along to his side of the decision by letting them write the decision and shape the Court's ruling. Reportedly, this allowed Stevens to bring Justice Kennedy to his side in Boumediene v. Bush and earlier in Lawrence v. Texas. As Denniston explains, now that Kennedy will be third in seniority and since Justice Scalia is likely to be on the same side as Justice Roberts for many cases, Kennedy would be able to mold the other bloc's opinion by joining that bloc and assigning the opinion himself.
But, if Kennedy were to line up, in a divided case, with the Court’s four moderate-to-liberal Justices (assuming Stevens’ replacement sides with that bloc), Kennedy would always have the assigning task, inheriting it from Stevens. He would outrank, in seniority, all of the Justices in that bloc. He thus will be able to shape even the Court’s more liberally inclined outcomes, by the way he chooses the opinion authors. And, if he thought any of the other four might use an assignment to write an opinion more sweeping than he would want, he could assign the task to himself, and keep it within whatever bounds he chose so long as it did not drive off one of the four other votes he would need to keep a majority.

Would Kennedy be inclined to line up more often in coalitions with that bloc, just to get the assigning task? It might have that effect on him, at least some of the time. It is not just a ceremonial task, and can, indeed, be an opportunity leading to a more significant leadership role. Stevens surely used it that way.
Great. Just what we need - for this country to become even more whatever Anthony Kennedy decides it should be.

Facing the drama of a Supreme Court nomination, everyone is out with their analysis of what the President will be looking for and who the likely nominees might be. Tom Goldstein, founder of Scotusblog, offers his analysis of potential nominees and pushes for his favorite and that of many on the left, Seventh Circuit Judge Diane Wood. Politico reports that the President doesn't want a contentious nomination fight as the Democrats are heading into a tough election campaign.
Obama exuded moderation during his brief announcement in the Rose Garden Friday, avoiding the empathy criterion he famously espoused prior to picking Justice Sonia Sotomayor.

Instead, Obama said he wanted a nominee to have an “independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.”

In another contrast to last year’s court pick, Senate Democrats and administration officials de-emphasized judicial philosophy and emphasized personality on Friday — arguing that Stevens’ successor needs to possess some of the personal attributes that allowed Stevens to charm Justice Anthony Kennedy, the court’s critical swing vote.
See, everything always seems to come back to Kennedy. Is this really healthy for our system?

And I don't buy this whole posture of seeking a moderate candidate and avoiding a fight. There wouldn't be much of a fight anyway. We all know what will happen. Obama will pick someone who is to the left in judicial ideology. That candidate will try, as did Sonia Sotomayor did, to hide those views with soothing moderate platitudes. If there is anything startling in the nominee's background such as Sotomayor's "wise Latina" speech, it will be explained away as being misunderstood. The Republicans will gripe and many will vote against the nominee. But there won't be a filibuster and there will still be quite a few Republican senators who will vote for any reasonably qualified nominee. Activists and interest groups will breathe fire and brimstone, but that won't affect the foreordained path.

The best thing that the Republicans can hope for is that they will actually carry though on using the hearings as one more opportunity to air their ideas about judicial philosophy by asking questions on the nominee's view on such issues as the breadth of the Commerce Clause or the Executive Branch's authority in wartime, or how much deference should be given to foreign opinions by our Supreme Court. I wouldn't expect much in the way of an answer to such questions. We'll get nice legal sounding mush from the nominee just as we got from Sotomayor or, for that matter Alito and Roberts. And Ginsburg and Breyer. Then they'll get on the Court and vote just as they wish. And it will in the end, all seem to come back to whatever Anthony Kennedy thinks at that particular time. What a crazy system!

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