Is Rehnquist waiting for the 2006 elections? He seems hostile to much of what Bush and other republicans have said about judges and judicial appointments. Do we think he is hoping that some additional Senate seats go to democrats so that a Bush appointee can’t be steamrolled through?
If Rehnquist retires, what’s Bush’s play? Does he appoint Gonzalez or Estrada CJ, thereby permitting only one confirmation battle? Both of them seem to fit the prototype (minority, youngish, extremist).
Or does he elevate Thomas (again–minority, youngish, extremist).
Bush has said that he wants to appoint someone who fits the Scalia-Thomas mold. Is Scalia too old to be elevated? Are there other factors that argue against Bush appointing his favorite justice to the CJ seat?
Who should Bush appoint in order to follow through on his statements about the types of judges he wants to appoint?
Seven Democrats have pledged only to filibuster in “extraordinary circumstances.” What does that mean - or, more to the point of the OP, how should Bush proceed given that promise?
A good question. I think they have locked themselves out of filibustering most likely appointees, which I also think explains why Rehnquist has not announced his retirement yet.
I suppose Bush should follow his conscience, no matter what agreements are in place. He can certainly count on less opposition in the Senate. Maybe we should reinstitute the slip system that was in place when Clinton was in office. That was ok, right?
My hunch is that Bush will surprise us. Conventional wisdom seems to suggest that he will nominate Scalia as CJ, and someone, probably Gonzales, to Scalia’s AJ seat. But I think Rove knows the problems inherent in the confirmation battles that would result, and will encourage him (and Bush listens to Rove) to make a nomination which will cause a much less acrimonious confirmation fight (any likely Bush nominee is likely to have some fight for confirmation).
Personally, I think Kennedy would make an outstanding CJ. He’s conservative in many ways but has a strong commitment to human rights, which would please liberals, and is an excellent consensus builder, important on a court of strong personalities like the present one.
A good surprise, or a bad one? (I guess that depends on one’s perspective.) He kind of surprised me with his talk of “political capital” after he was re-elected. And his other appointments have all pushed the envelope. So he has me worried.
Ya think? I almost wouldn’t mind Scalia as CJ. He’s already on the court. And while CJ counts for something, Scalia’s voice is already well-known on the Court. I truly hope he will not appoint a young extremist and make that person CJ.
I agree. Kennedy would be a rather uncontroversial choice for CJ, and he’d probably do a good job.
I can see it going two different ways for CJ. On the one hand, what purpose would it serve the Dems to oppose Scalia or Thomas? The CJ isn’t that important a job, and they might look like they’re opposing it just for the sake of opposing it. On the other hand, most people probably think that the CJ “runs the court” and has some significant power over “ordinary” justices. So maybe they can make some political hay over that. I’m inclined to believe the first scenario is what will play out.
As for appointing new justices, I have no doubt that Bush will pick someone similar to Scalia or Thomas. He fundamentally believes that textualism (or originalism or strict constructionism… whatever you want to call it) is the correct method of interpreting the constitution, so why shouldn’t he? Plus, he has shown no propencity to compromise on his other nominations. Why should a SC justice be any different?
A “good” Chief exerts a lot of influence on the Court, and therefore on jurisprudence generally, through exerting leadership and using his ability to assign decisions to assure outcomes that make good law. He also exerts some influence over the lower Federal courts through the Judicial Conference and his authority as CJ of the US. (See comments about CJ Berger from his fellow justices.)
It is arguable that Scalia, who is not known for making friends and influencing people among his fellow justices, would make a “bad” Chief by that standard.
I believe that Bush is an “originalist” based on his non-political comments regarding proper law. But “originalism” and “textualism” are quite different philosophies. An originalist interprets the law based on the intent of those who wrote it; a textualist interprets based on precisely what its wording says, regardless of intent. A “living constitutionalist” founds his interpretation on the basic reasons underlying the idea of Constitutional law, in particular the founding of sovereignty in the people and the idea of inalienable, guaranteed rights.
Do you think that Bush (personally) has a coherent judicial philosophy? If you cornered him at a cocktail party and pressed him to explain his views on substantive due process, federalism, or the finer points of criminal procedure, would he be able to explain what it means to interpret the language of the constitution according to originalist or textualist principles? I’m seriously curious about this, and don’t mean to slam him. I’m just saying he’s not a lawyer, and he doesn’t seem like much of a reader.
I know that he has advisors, and that no president can be an expert in all fields.
[QUOTE=PolycarpI believe that Bush is an “originalist” based on his non-political comments regarding proper law. But “originalism” and “textualism” are quite different philosophies. An originalist interprets the law based on the intent of those who wrote it; a textualist interprets based on precisely what its wording says, regardless of intent. A “living constitutionalist” founds his interpretation on the basic reasons underlying the idea of Constitutional law, in particular the founding of sovereignty in the people and the idea of inalienable, guaranteed rights.[/QUOTE]
Yeah, but people don’t always fall so easily into one box or the other. IIRC, Scalia has said that he is a textualist first, and an originalist second.
But I do agree that Bush would probably characterize himself as an originalist, although (as Gfactor notes) not with the precision that a constituional lawyer would use that term. And, of course, Bush is quick to abandon that school of thought when it’s politically expedient to do so.
For purely political reasons, I don’t think Bush would nominate Thomas or Scalia for CJ. Here’s why:
If Rehnquist retires, the court will be losing a conservative justice. So appointing another conservative to replace him may not create quite the furor as would replacing say, O’Connor with a conservative. However, if Bush moves Thomas or Scalia to CJ, that will be seen as making the court more conservative, so the combination of that and appointing a conservative justice might just be too much, and spark a big battle.
Now, if it were O’Connor retiring, I could see a move like putting Kennedy in the CJ position to mollify the left so he could appoint a conservative justice, or moving Scalia into CJ to offset having to put another moderate on the bench.
BTW, what makes Gonzales ‘extreme’? My understanding is that the right thinks he’s too moderate, but I haven’t followed his statements, so what’s the scoop?
I don’t think Gonzalez is extreme. I think he’s a partisan hack who’ll do whatever his Republican masters tell him to. A quaint belief, perhaps, but there you have it.
It looks like it, or he’d have announced by now. The political landscape has shifted against Bush and the conservative agenda to the point where his continued divisiveness is backfiring on him. A nomination of a Rehnquist Jr. right now would have a serious problem succeeding, and is more likely to simply backfire politically. The 2006 race is already under way, and there’s no way that such a nomination would help the GOP gain supporters it does not now have, rather the reverse.
If the next Congress is not much changed, there’s a safe window to do it right afterward. If it’s different, it’s already too late for Bush to do what he presumably wants.
Sorry, that makes all your other questions premature, except this one:
The type of judge who deserves this, or any other, seat on the Court would be a political moderate (or of no discernible partisan or ideological bent, and yes, that’s possible), with a reputation in all quarters for fairness, sensitivity, thoughtfulness, and above all regard for the spirit of the law and not just the letter.
Some Presidents (Taft and Truman come quickly to mind) had a definite sense of Constitutional philosophies and acted in accordance with their own defined views. Others tend towards one school or another but act expediently to advance their own policies. Bush is an originalist in the latter sense (but has bought into the Truman view of the war powers, which is emphatically living-constitutionalist; both textualists and originalists, pressed for a firm yes-or-no answer, would have to admit that Presidential acts of war/“police [military] action” confirmed by Congress or founded in a rather nebulous broad-based consent to a rather nebulously defined power grant, is not in accord to the Constitution. Truman’s decision to intervene in Korea has had a strange clutch of chicks over the years.
