Sandra Day O'Connor retiring

[Jbrjo]

WASHINGTON - Justice Sandra Day O’Connor, the first woman appointed to the Supreme Court and a key swing vote on issues such as abortion and the death penalty, said Friday that she is retiring after 24 years on the bench. O’Connor, 75, said she will leave before the start of the court’s next term in October, or when the Senate confirms her successor.

President Bush praised O'Connor's contributions saying that "our nation is deeply grateful." In brief comments at the White House, he did not announce a nominee for the seat but said he hoped to do so in "a timely manner."

It’s been 11 years since the last opening on the court, one of the longest uninterrupted stretches in history. O’Connor’s decision gives Bush his first opportunity to appoint a justice.
“This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor," she wrote in a letter to Bush. "It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.”

The White House has refused to comment on any possible nominees, or whether Bush would name a woman to succeed O’Connor. Her departure leaves Justice Ruth Bader Ginsburg as the only other woman among the current justices. Court watchers had expected a Supreme Court vacancy during Bush's second term. There was talk that O'Connor and Justice John Paul Stevens, 85, might consider stepping down. And Chief Justice William Rehnquist, 80, has cancer.

Frist: Names floated
On Tuesday, Senate Majority Leader Bill Frist said he's been talking to Democratic leader Harry Reid about nominees for a potential vacancy on the Supreme Court but doesn't have any inside information on whom President Bush might nominate.
"Have Senator Reid and I talked about individual names? Yes, we have in the privacy of our regular meetings," Frist said in a speech at the Heritage Foundation. He wouldn't say whom he and Reid had discussed or characterize their chances in front of the Senate.

Reid later offered three names of people he said would be good for the court: GOP Sens. Mel Martinez of Florida, Mike DeWine of Ohio and Mike Crapo of Idaho. They "are people who serve in the Senate now who are Republicans who I think would be outstanding Supreme Court members," Reid said.
Reid also said that in a conversation with the justices last week, they said that "they thought what would be a good idea is to start calling people from outside the judicial system."
"I think that's something that we should listen to. And I've conveyed this to anyone that will listen," Reid said.Fourteen senators have served on the Supreme Court. The revolving door has turned the other way only once: David Davis resigned from the court in 1877 to represent Illinois in the Senate as an independent.

Swing vote legacy
O’Connor leaves with a reputation as a "swing voter" on the bench. Her appointment in 1981 by President Reagan, quickly confirmed by the Senate, ended 191 years of male exclusivity on the high court. She wasted little time building a reputation as a hard-working moderate conservative who emerged as a crucial power broker on the nine-member court.
O’Connor often lines up with the court’s conservative bloc, as she did in 2000 when the court voted to stop Florida presidential ballot recounts sought by Al Gore, and effectively called the election for President Bush. As a “swing voter,” however, O’Connor sometimes votes with more liberal colleagues.

Perhaps the best example of her influence is the court’s evolving stance on abortion. She distanced herself both from her three most conservative colleagues, who say there is no constitutional underpinning for a right to abortion, and from more liberal justices for whom the right is a given.
O’Connor initially balked at letting states outlaw most abortions, refusing in 1989 to join four other justices who were ready to reverse the landmark 1973 decision that said women have a constitutional right to abortion.

Then in 1992, she helped forge and lead a five-justice majority that reaffirmed the core holding of the 1973 ruling. Subsequent appointments secured the abortion right.
Commentators have called O’Connor the nation’s most powerful woman, but O’Connor poo-poohed the thought, once telling the Associated Press: “I don’t think it’s accurate.”

[Mavdog]

O'Connor will be missed. She has provided a much needed balance to this court.

It is going to be very interesting as this plays out. Will Bush nominate a centrist justice and avoid a protracted approval process? Will he nominate a woman rather than a male? Will he wait on O'Connor's replacement while he fills the expected Rehnquist vacancy?

lotsa questions.

[Drbio]

Originally posted by: Mavdog
O'Connor will be missed. She has provided a much needed balance to this court.

Kind of stunned to see you say this, but I agree.

[kg_veteran]

Bush needs to step up to the plate and deliver here. No centrist this or that. That's not what Clinton delivered when he was in office.

This is a very important decision that Bush is about to make. I hope he makes the right one.

[dalmations202]

Bush needs to step up to the plate and deliver here. No centrist this or that. That's not what Clinton delivered when he was in office.

This is a very important decision that Bush is about to make. I hope he makes the right one.

I totally agree.

[Drbio]

I thought O'Connor was one of the best thinkers in the Court. But I do hope Bush plants a right leaning judge in her spot.

[Mavdog]

The majority of Americans are centrist in their political philosophy. Why should there be a nominee to the court that isn't reflective of this view?

Bush should recognise this fact and nominate a judge who will be similar to what the American public desires.

[kg_veteran]

The majority of Americans are centrist in their political philosophy.

There's a pretty broad-sweeping and unsupported statement.

Why should there be a nominee to the court that isn't reflective of this view?

Simple. The President has the power to nominate Supreme Court justices, and everybody knows that at election time. It's ALWAYS an issue in the campaigns -- who will (insert name of candidate) appoint to the Supreme Court if given the opportunity? The American public picks a President to, among other things, be its representative in nominating Supreme Court justices. Since the American public chose George Bush, knowing full well what his judicial philosophy was, they get nominees that Bush chooses.

Bush should recognise this fact and nominate a judge who will be similar to what the American public desires.

The American public has already made its desire known -- to have George Bush be its representative in picking Supreme Court nominees.

Ain't our system great?

[Mavdog]

Originally posted by: kg_veteran

There's a pretty broad-sweeping and unsupported statement.

not "unsupported" at all, just look at the last couple of election results.

Why should there be a nominee to the court that isn't reflective of this view?

Simple. The President has the power to nominate Supreme Court justices, and everybody knows that at election time. It's ALWAYS an issue in the campaigns -- who will (insert name of candidate) appoint to the Supreme Court if given the opportunity? The American public picks a President to, among other things, be its representative in nominating Supreme Court justices. Since the American public chose George Bush, knowing full well what his judicial philosophy was, they get nominees that Bush chooses.[/quote]

I don't recall that the appointment of supreme court judges was much of an "issue" during the last campaign, it was mentioned a time or two yet not as pivotal. Take a look at the comments by Bush during the debate for instance, all he would state was that he would appoint a judge who took a "constructionist and not an activist" philosophy, and then I recall Bush saying he would not use a "litmus test" on vetting any judge.
Recall that a slim majority "chose George Bush", and that majority is not monolithic in any manner as it relates to their desire for a supreme court judge.

Bush should recognise this fact and nominate a judge who will be similar to what the American public desires.

The American public has already made its desire known -- to have George Bush be its representative in picking Supreme Court nominees.

Ain't our system great?[/quote]

yes, the system is great, a nominee will be evaluated and discussed, their views will be somewhat known and evaluated. nowhere has the American public expressed its desire to see a judge who is out of the mainstream in their views.
If Bush nominates someone who is not in the mainstream I predict the public will express themselves strongly by lowering what is his already dismal approval ratings, and the affect will be felt in midterm elections for those who embrace that fringe philosophy embraced by Bush.

[kg_veteran]

Originally posted by: Mavdog
not "unsupported" at all, just look at the last couple of election results.

Not sure how the last couple of elections tell us anything. You had a fairly conservative George Bush running against ultra-liberals Al Gore and John Kerry.

I don't recall that the appointment of supreme court judges was much of an "issue" during the last campaign, it was mentioned a time or two yet not as pivotal.

I'm not saying it was THE major campaign issue; obviously things like national security and the war in Iraq were more pivotal issues. But it was definitely a part of the discussion, both in the debates and throughout the campaign. The distinction between Bush and Kerry was clear on many levels, one of which was their judicial philosophy.

Recall that a slim majority "chose George Bush"

You really are a sore loser.

and that majority is not monolithic in any manner as it relates to their desire for a supreme court judge.

I like how you assume that you KNOW what the majority of America wants in a Supreme Court justice. You don't KNOW that, but we do KNOW that the majority of Americans who voted wanted George Bush to be the President, and that the President gets to make the Supreme Court nominations. That's how our system works.

yes, the system is great, a nominee will be evaluated and discussed, their views will be somewhat known and evaluated. nowhere has the American public expressed its desire to see a judge who is out of the mainstream in their views.

You're assuming that: a) Bush will appoint a justice who is "out of the mainstream" and b) the American public wants a justice who is "in the mainstream" -- whatever that means.

If Bush nominates someone who is not in the mainstream I predict the public will express themselves strongly by lowering what is his already dismal approval ratings, and the affect will be felt in midterm elections for those who embrace that fringe philosophy embraced by Bush.

If there is any backlash against Republicans in the mid-term elections, IMO it won't be related to Supreme Court nominations.

BTW, you need to let go of your hate. "Fringe philosophy"? You must think the American people are really stupid, since they elected him.

[Drbio]

Sore Loser indeed.

[Mavdog]

Originally posted by: kg_veteran

"ultra-liberals" reveals much about your perspective. From my viewpoint they are not "ultra" in any manner, the "ultra" candidates in the Democrat Party were vanquished early in the primaries or, in the case of Nader, weren't in the Democrat field to begin with.

other than in the context of abortion I don't recall any potential nomination being "a part of the discussion" and even that was minimized (see the Bush "no litmus test" message)

You really are a sore loser.

??? That is the fact, the truth, and I don't see anything from you that contradicts it. No "sore loser", although anybody parading around claiming a mandate would certainly fall under the moniker of "poor winner".

and that majority is not monolithic in any manner as it relates to their desire for a supreme court judge.

I like how you assume that you KNOW what the majority of America wants in a Supreme Court justice. You don't KNOW that, but we do KNOW that the majority of Americans who voted wanted George Bush to be the President, and that the President gets to make the Supreme Court nominations. That's how our system works.[/quote]

so you assume otherwise? look at the elections, look at the opinion polls, look at the makeup of the American public. Anybody with any analytical ability would see just what I have stated. Care to refute any of it?
BTW the system says that the President can nominate whom they want, but it is the Senate that is vested with the power to approve. No approval, no appointment. That's how our system works.

yes, the system is great, a nominee will be evaluated and discussed, their views will be somewhat known and evaluated. nowhere has the American public expressed its desire to see a judge who is out of the mainstream in their views.

You're assuming that: a) Bush will appoint a justice who is "out of the mainstream" and b) the American public wants a justice who is "in the mainstream" -- whatever that means.[/quote]

no, I am not assuming anything of the sort, I am hoping for a nominee who is in the mainstream. If you don't grasp what "in the mainstream" is perhaps you should acquaint yourself with middle America.

If Bush nominates someone who is not in the mainstream I predict the public will express themselves strongly by lowering what is his already dismal approval ratings, and the affect will be felt in midterm elections for those who embrace that fringe philosophy embraced by Bush.

If there is any backlash against Republicans in the mid-term elections, IMO it won't be related to Supreme Court nominations.

BTW, you need to let go of your hate. "Fringe philosophy"? You must think the American people are really stupid, since they elected him.[/quote]

So what do you envision as the potential issue that would result in a backlash against the Repubs in the midterm elections?

Pehaps I should have worded my statement better as I did not intend to refer to Bush as having a fringe philosophy. If there is a nominee by Bush who is on the far right (a "fringe phlosophy"), the impasse and discord inherent in that protracted battle will affect the Republican candidates in the midterm elections as (IMO) the majority of Americans don't want a nominee with a fringe philosphy but rather a nominee who is more of a centrist...like they are.

[kg_veteran]

Originally posted by: Mavdog
"ultra-liberals" reveals much about your perspective. From my viewpoint they are not "ultra" in any manner, the "ultra" candidates in the Democrat Party were vanquished early in the primaries or, in the case of Nader, weren't in the Democrat field to begin with.

You're nitpicking, Mavdog. Both Al Gore and John Kerry are much further to the left than George Bush is to the right; thus, the use of the prefix "ultra".

other than in the context of abortion I don't recall any potential nomination being "a part of the discussion" and even that was minimized (see the Bush "no litmus test" message)

That's your recollection, not mine.

??? That is the fact, the truth, and I don't see anything from you that contradicts it. No "sore loser", although anybody parading around claiming a mandate would certainly fall under the moniker of "poor winner".

Only a bitter, sore loser would continue to try and minimize Bush's margin of victory some 9 months after the fact. And the only reason you'd do it is to try and imply that Bush doesn't have the right to govern because of the "slim majority" (see your "he doesn't have a 'mandate' comments). The fact is, you don't need a "mandate" to be able to serve as President; you need 270 electoral votes.

I find it rather humorous that when Al Gore wins the popular vote by 540,000 votes or so, people claim that he got screwed because he was the real winner. When Bush wins the popular vote by ove 3,000,000 votes, people claim that he really didn't win, well, at least not by that much...

so you assume otherwise?

Yes, I assume that you don't know what the majority of America wants in a Supreme Court justice.

look at the elections, look at the opinion polls, look at the makeup of the American public. Anybody with any analytical ability would see just what I have stated. Care to refute any of it?

I don't know what opinion polls you're referring to, or what you mean by "the makeup of the American public", but I'm of the opinion that the majority of the populace is more conservative than you think.

BTW the system says that the President can nominate whom they want, but it is the Senate that is vested with the power to approve. No approval, no appointment. That's how our system works.

Well, duh. But we're talking about your complaint that Bush should nominate a "centrist", and my point remains that when the American public elects a President, part of what they are electing is the guy (or gal) who gets to pick who to nominate. It's too late to whine about who he's going to pick after the election takes place, and it's kind of silly to expect him to pick someone who has a different ideological perspective than he does simply to appease people who probably didn't vote for him in the first place.

So, if you want to, gripe to your Senator and tell him/her you want him/her to oppose the approval of Bush's nominees.

no, I am not assuming anything of the sort, I am hoping for a nominee who is in the mainstream. If you don't grasp what "in the mainstream" is perhaps you should acquaint yourself with middle America.

You're a piece of work, pal. You don't even know me. I don't know what YOU mean by "in the mainstream", because I find your views to consistently be pretty far to the left, which means your view of mainstream or middle might be a lot different than mine. That said, I don't have to acquaint myself with middle America. I'm a part of middle America.

So what do you envision as the potential issue that would result in a backlash against the Repubs in the midterm elections?

The war in Iraq.

Pehaps I should have worded my statement better as I did not intend to refer to Bush as having a fringe philosophy. If there is a nominee by Bush who is on the far right (a "fringe phlosophy"), the impasse and discord inherent in that protracted battle will affect the Republican candidates in the midterm elections as (IMO) the majority of Americans don't want a nominee with a fringe philosphy but rather a nominee who is more of a centrist...like they are.

Fair enough. FWIW, I don't think Bush is going to nominate a hard-core conservative, because I don't think he himself is a hard-core conservative. But, if you're expecting Bush to nominate a pro-choice nominee or a person who will oppose many of Bush's social beliefs, I think you're going to be disappointed.

[Mavdog]

the replys are getting too long (IMO) so I'll just respond w/o the original..

I can't see tossing around phrases such as "ultra" to describe Gore or Kerry, nor would I use it to typically describe Bush. Hard to call a candidate "ultra liberal" when (in Gore's case) thay polled over 50% of the vote. Just what positions did either of them take that would lead you to conclude they were "ultra liberal"? By your very use of the terminology it tells me that you really aren't in "midddle America" like you think you are.

the question you raised on how far right bush is, well, he certainly does do some non-conservative acts. the budget for instance should be making true conservatives ill, the amnesty decision, the foreign aid he has committed. yet at the same time there have been what I'd call "ultra" positions taken on the right, especcially those in regard to industry.

if you equate conservatism with a non-secular government, then he's a solid conservative. I don't.

so apparently it is OK for Bush supporters to claim some sort of "mandate" while anyone who (correctly) points out a clearly divided electorate is a "bitter, sore loser". odd, but to be on the factually correct side of the discussion and to be called a "sore" anything is pretty ironic. indicates to me that there's some pretty thin skin due to the thin victory.

I mention the divided electorate not to limit Bush's "right" to anything, I like and commend that he's calling for reforming SS in spite of my criticism of his solution. his leadership may get something resolved, and he already has made concessions to get that done. I'd like to see him do the same for the tax code.

No, I mentioned that Bush is leading a divided electorate evidenced by his margin of victory (true) that the country is moderate by nature (, and the nominee should be reflective of that centrism. There's no "whining" about a nominee there's a realization that Bush has an opportunity to set the tone of this last 3 years of his Presidency, is it a time when he's going to accomplish something or is it just a grind that has little done when it's over.

you know, Bush in his Inauguration speech mentioned he would serve and work for all americans, not just those who voted for him. you apparently don't agree.

regarding Iraq, you're probably right. one, the insurgency would need to continue for another 9 months to a year, which isn't out of the question. two, the Iraqis don't appear to be much closer to governing than a year ago, they may not be any closer in a year. three, with things not going well in Afganistan the armed forces are stretched thin.

it won't be very positive to have the senate locked down in a filibuster either.

[MavKikiNYC]

Interesting. Unlikely, but interesting.

July 11, 2005
Specter Offers a Suggestion for Chief Justice: O'Connor
By DAVID D. KIRKPATRICK

WASHINGTON, July 10 - Senator Arlen Specter, chairman of the Judiciary Committee, suggested on Sunday that President Bush could name Justice Sandra Day O'Connor, who is retiring from the Supreme Court, to the position of chief justice if it opens up.

"I think it would be very tempting if the president said to Justice O'Connor, 'You could help the country now,' " Mr. Specter, Republican of Pennsylvania and a pivotal player in any confirmation hearings, said in an interview on the CBS program "Face the Nation." "She has received so much adulation that a confirmation proceeding would be more like a coronation, and she might be willing to stay on for a year or so."

Although Mr. Specter's seeming endorsement of the idea was highly speculative - Justice O'Connor, 75, has announced her retirement, while Chief Justice William H. Rehnquist, 80, has not stepped down - it was the clearest of his several recent signals that he plans to steer his own course as he oversees hearings on a replacement for Justice O'Connor, independent of the president and of his party's conservative base.

Many social conservatives have denounced Justice O'Connor's votes on abortion, sodomy laws and public displays of religion. Hailing her resignation as a long-awaited chance to turn the court to the right, they have reminded Mr. Bush of his repeated praise for the court's conservative anchor, Justice Antonin Scalia.

Instead, Mr. Specter, who said he was not making a recommendation to the president, echoed a chorus of Democrats who have lauded Justice O'Connor since her retirement. Speaking on the same program, Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, readily assented. "I think it would be a very doable thing," he responded to the idea of enticing Justice O'Connor out of retirement to become the new chief.

Gary L. Bauer, president of American Values, a conservative organization, said Mr. Specter's remarks "tell me that if Senator Specter were president, we would have quite different nominees than what we are likely to get from a self-described conservative president like the one we have."

Several senators joined the speculation on Sunday about whether Chief Justice Rehnquist, who has thyroid cancer, will announce his own retirement shortly, perhaps within days.

"I expect by the end of the year that he will retire, because I think he's really wanted to," Senator Orrin G. Hatch, Republican of Utah and another senior member of the Judiciary Committee, said in an interview on the NBC program "Meet the Press." "That's my sense, but I've been wrong before."

Mr. Specter, noting that he is also undergoing treatment for cancer, quoted the chief justice's statement last week about the possibility of his retirement: "That is for me to know and you to find out."

"If the chief's health holds up, I think he'll stay," Mr. Specter said. "But I believe he may not know that really from one day to the next, one week to the next, one month to the next."

Both Mr. Specter and Mr. Leahy said they were familiar with an account of a meeting that two senators, one from each party, had had with Justice O'Connor weeks before her retirement, in which they discussed a campaign to elevate her if Chief Justice Rehnquist does step down. Senator Richard J. Durbin, Democrat of Illinois, described the same meeting to The Chicago Tribune last weekend, suggesting that Justice O'Connor had not objected. No one identified the senators.

"I did hear about it," Mr. Specter said, "that there had been senators who had made that suggestion to Justice O'Connor, and that the response that I heard was that she said she was flattered. That she didn't say no."

Describing what he called credible speculation, Mr. Specter said that before she retired, "there was some speculation in the intervening week that Justice O'Connor might be waiting to see what Chief Justice Rehnquist did, perhaps with the chance to become chief justice herself."

Mr. Specter also said he intended to push hard for a bill, expected to come up in the Senate this week, to authorize federal financing for research using stem cells derived from human embryos left over at fertilization clinics. Many social conservatives object to the research, saying it destroys potential human life, but supporters argue that the research could yield new treatments for many life-threatening diseases.

[Mavdog]

now this is true leadership being exhibited by the WH. Work together to have a nominee who will not fan the partisan flames.
-------------------------------------------------------------------------------------------------------------
Bush Solicits Supreme Court Advice By DEB RIECHMANN, Associated Press Writer
Tue Jul 12,10:24 PM ET

Aiming to demonstrate an openness to all views, President Bush sought the advice of Democratic as well as Republican senators on Tuesday about whom to pick to fill a Supreme Court vacancy. He also got a little unsolicited advice from his wife.

Over breakfast at the White House, Bush was urged by two key lawmakers to consider nominating someone other than a current judge. Democrats floated the names of three Hispanic judges, but advocates on both the right and left said they might be too moderate for the president's liking.

Bush even heard — all the way from South Africa — from Laura Bush, who said she'd like to see him replace retiring Justice Sandra Day O'Connor with a woman.

Through it all, Bush gave no clues about whom he might be considering.

"Closer than I was yesterday," was all he would say about how near he was to making his first pick for the nation's high court.

His White House meeting was attended by Senate Majority Leader Bill Frist, R-Tenn; Senate Minority Leader Harry Reid, D-Nev.; Sen. Arlen Specter (news, bio, voting record), R-Pa., chairman of the Senate Judiciary Committee, and Sen. Patrick Leahy (news, bio, voting record) of Vermont, ranking Democrat on the committee. Vice President Dick Cheney and White House Chief of Staff Andy Card also attended.

Reid told Bush he wanted the president to share the names of his candidates so senators could evaluate them.

The Democrat said he didn't want to "wake up in the morning and see a name in the paper." The president's process of consultation should continue, he said.

The meeting was intended to reinforce White House contentions that Bush was consulting widely in filling the first Supreme Court vacancy in 11 years. Democrats have complained bitterly for years that Bush has ignored their views on lower-court judicial nominations. The White House said it has solicited the views of more than 60 senators.

"Senator Frist came to the Senate floor and said it is unprecedented what the president has done," Reid said about the consultation. "That is a bunch of flimflam," he said, adding that presidents have often consulted with leading senators about Supreme Court nominees.

Officials said Reid signaled that several of the contenders supported by conservatives could trigger a confirmation battle. The Nevada Democrat did not mention names, but among those backed by conservatives are federal appellate judges J. Michael Luttig, Michael McConnell, John Roberts Jr., Samuel Alito and J. Harvie Wilkinson III.

Several officials familiar with the hour-long meeting said Democrats suggested Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals, Judge Ed Prado of the 5th U.S. Circuit Court of Appeals and U.S. District Court Judge Ricardo Hinojosa, all Hispanics.

"The question is how seriously will the president take these or any other names suggested, and we don't know the answer to that," said Elliott Mincberg, legal director of the liberal advocacy group, The People for the American Way. Wendy Long, counsel for the conservative Judicial Confirmation Network, said the three Hispanic judges' judicial philosophy might not "meet the president's bedrock criterion of faithfulness to the Constitution."

Conservative groups also are leery of another Hispanic said to be a top contender, Attorney General Alberto Gonzales, who is close to Bush but whose views on abortion and affirmative action have raised questions among them. Sen. Sam Brownback (news, bio, voting record), R-Kan., said he was trying to arrange a meeting with Gonzales this week to explore his judicial philosophy.

Specter and Leahy said they told Bush he should consider naming someone who has not worn a judicial robe. Chief Justice William Rehnquist, for example, was a Justice Department official when he was selected.

"If they had a little more practical experience and didn't work so much within the footnotes and the semicolons, you might have a little different perspective, and I'd like to see that added to the court," Specter said."

Leahy, who gave a jar of Vermont maple syrup as a belated birthday gift to Bush, who turned 59 on July 6, agreed.

"I've talked, as each of us has, with a number of the current justices," Leahy said. "I know they see a number of benefits that could come to having somebody from outside the judicial monastery." Despite the consultations, the White House indicated the only thing that mattered was what the president thought.

"People are welcome to express their views ... but it's the president's constitutional responsibility to make that selection," spokesman Scott McClellan said. "And I don't think any individual should have veto power over that selection process."

In contrast to last week, little was said about rumors that Rehnquist, who is battling cancer, would step down, too.

___

[dude1394]

Certainly by any criteria of liberal "measurement" the two senators from massachusetts are about as far left on the political spectrum of any of our elected leaders.

In the conservative community supreme court picks are a big deal, a big deal. Mainly because they feel that the court has become the mechanism whereby the left in this country governs when they cannot win at the ballot box. Affirmitive action, unlimited abortion, unilateral striking down of death penalty for a mass murderer who is 17years, 11 months and 30 days old and heck now governement transfers of private land from one private organization to another.

Not to mention the constant battle against the ACLU to turn the country into some sort of sectarian utopia. Stupid as hell battles against the Boy Scouts!! for goodness sakes. We've managed to kick the left out of most positions of power (thank goodness) the supreme court needs to be reformed as well.

What conservatives REALLY want from a justice is one who doesn't make up laws from the bench. Sure some will fuss that they SHOULD make some decisions that are conservative, but in general they want to quit having an unaccountable set of people makeing laws.

All of the grousing around about a mandate is much todo about nothing. The left wants to say bush doesn't have a mandate to give them cover to oppose him and minimize him, the right wants to do the opposite for the same reasons.

The bottom line is scoreboard. Winner take all, dubya IS the prez, the senate IS in republican hands, the house IS in republican hands and last time I looked the majority of legilatures and governors were also IN republican hands. If you want to talk about a mandate, that's about as solid as you can get.

[Drbio]

It's a good move unless the dimocraps seek conomination. They can suck it in that case.

[MavKikiNYC]

What conservatives REALLY want from a justice is one who doesn't make up laws from the bench. Sure some will fuss that they SHOULD make some decisions that are conservative, but in general they want to quit having an unaccountable set of people makeing laws.

Another perspective.

So Who Are the Activists?
By PAUL GERWITZ and CHAD GOLDER
New Haven

WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of one Congressional statute every two years. Between 1791 (the court's founding) and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

To say that a justice is activist under this definition is not itself negative. Because striking down Congressional legislation is sometimes justified, some activism is necessary and proper. We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations.

Our data no doubt reflects such differences among the justices' constitutional views. But it even more clearly illustrates the varying degrees to which justices would actually intervene in the democratic work of Congress. And in so doing, the data probably demonstrates differences in temperament regarding intervention or restraint.

These differences in the degree of intervention and in temperament tell us far more about "judicial activism" than we commonly understand from the term's use as a mere epithet. As the discussion of Justice Sandra Day O'Connor's replacement begins, we hope that debates about "activist judges" will include indicators like these.

Paul Gewirtz is a professor at Yale Law School. Chad Golder graduated from Yale Law School in May.

[dude1394]

Yes I've read that and of course there are differing ideas of what an "activist" is. I am certainly not a legal scholar, but in generral what I have seen from Thomas for sure is an inclination to strike down congressional laws that he feels they have no business makeing because of a strict interpretation of the constitiution. So the net effect is a limiting of federal power, which as a matter of course I support.

But in general his decisions I pretty much agree with. Usually they are limiting the federal government unless explicitly provided for in the constitution. That to me is the proper balance.

[MavKikiNYC]

This writer is a legal scholar, but he doesn't seem to esteem Justice Thomas's efforts as highly as you do (or Scalia's either for that matter).

I didn't like the way liberal Democrats attacked Thomas during his confirmation hearings, but can't say that he's done much as a Justice either, generally.




Why We Must Strive for Balance

By Cass R. Sunstein
Chicago Tribune

Ever since the election of President Ronald Reagan, American conservatives have been sharply divided about what was wrong with the liberal activism of the Earl Warren court era of the 1950s and '60s. The division has led to two radically different views about the proper role of the U.S. Supreme Court in American life.

The first view reflects the principled conservatism represented by Justice Felix Frankfurter, the great conservative on the Warren court. Frankfurter thought that the Supreme Court should respect the decisions of elected officials. He despised the court's willingness to enter what he called the "political thicket."

Frankfurter was a judicial minimalist, in the sense that he wanted the court to proceed in small, incremental steps. To minimalists, Roe vs. Wade symbolizes judicial hubris; they do not want to create new rights or to expand on the right to privacy. But minimalists disapprove of right-wing judicial activism no less than they disapprove of its left-wing sibling. They are reluctant to use the Constitution to strike down affirmative action programs, gun control laws, environmental regulation or campaign finance reform. They think that questions of this kind should be resolved democratically, not by the judiciary.

The second camp embodies the brand of conservatism once represented by Robert Bork and now by Antonin Scalia and Clarence Thomas. Conservatives of this kind reject minimalism in favor of a kind of fundamentalism, in the sense that they believe that the Supreme Court should discover and enforce the "original understanding" of the Constitution. In their view, liberal activists have failed to pay attention to the Constitution itself. The real question is what the text, read in light of its history, asks courts to do.

Fundamentalists think that radical steps are necessary to restore what they now call the Lost Constitution or the Constitution in Exile. They are perfectly willing to strike down affirmative action programs, gun control legislation, environmental regulations, restrictions on commercial advertising, campaign finance laws and much more.

Justice Sandra Day O'Connor was the Supreme Court's leading minimalist; she was Frankfurter's kind of conservative. She prized stability. She was reluctant to overturn precedent in the name of the original understanding of the Constitution.

In conservative circles, fundamentalism has been on the ascendancy and minimalism in retreat. Many conservatives see O'Connor as a kind of infidel. When President Bush speaks in favor of "strict construction," he is widely taken to be endorsing fundamentalism. Several of his appointees are committed fundamentalists. And in the abstract, fundamentalism does seem to be both principled and appealing. But it also has serious problems.

Many fundamentalists read the Constitution as if it embodies the views of the most extreme wing of the Republican Party.

They believe that the Constitution reflects their own views on the great issues of the day--abortion, gun control, affirmative action, campaign finance reform, property rights, separation of church and state, and much more. What a happy coincidence!

Too much of the time, fundamentalists do not consult history at all, and the idea of the "original understanding" is a complete sham. Consider two examples. Constitutional history suggests that affirmative action is perfectly acceptable. (The framers of the 14th Amendment actually engaged in race-conscious efforts to help the newly freed slaves.)

History also suggests that the framers meant to give little protection to property owners against regulations that diminished the value of their land. All too conveniently, many fundamentalists disregard history when it leads to results that they dislike.

But suppose that fundamentalists were faithful to the original understanding. Even so, their approach wouldn't be much better. As we live them, our constitutional rights are a product of over two centuries of practice; they are not frozen in the 18th Century. Fundamentalists are evasive about the real consequences of their theory, and for good reason.

<u>If we decided to return to the original understanding, the national government would be permitted to discriminate on the basis of both race and sex. Congress could certainly engage in racial segregation. The states could probably segregate the races as well. They could certainly ban women from practicing law or medicine. The right of privacy would be abolished. States might well be permitted to establish official religions (and Justice Thomas has explicitly argued that they can). If we embraced the original understanding, the Federal Reserve Board, the U.S. Securities and Exchange Commission and the National Labor Relations Board might well be in constitutional trouble.</u>

In short, fundamentalists want to embark on a project of constitutional revisionism that would make the Warren court look pitifully timid.

Right-wing activists even appear to have convinced themselves that by remarkable coincidence, there is a close fit between their own political commitments and the Constitution itself. This is of course a delusion. But in the end, they might turn out to be right. If they continue to appoint judges who see things their way, the fit will become closer every day.

Cass R. Sunstein is a law professor at the University of Chicago.