Judicial Nominations and 2008

At SCOTUSblog, Tom Goldstein says that “it is not too early to start the hyperbole on the importance of the election for the future of the Court and, as a consequence, the future of American law.”

But is it really hyperbole? Of the nine current justices, five were born during the FDR administration and one, John Paul Stevens, was born the same year Warren Harding was elected president (1920). Though Goldstein discounts them, there are constant rumors that Ginsburg and Scalia are looking to retire sometime in the near future. Furthermore, as even Goldstein admits, it is generally accepted that Souter has never become enamored with the Supreme Court or with Washington , D.C.

Overall, this is an evenly split court with four activists on one side, four originalists/textualists on the other side and one swinging justice in the middle. Even one addition or subtraction on either side of the court could make all the difference in the world.

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In Iowa, a key primary state, judicial nominations ranks high on the list of issues considered “extremely important” by Republicans, according to a Des Moines Register poll. Iowa Republicans feel judicial nominations are as important, if not more important, than hot-button issues like stem cell research, global warming, renewable energy, the economy and taxes. Only national security concerns such as terrorism are ranked as extremely important by significantly more Iowa Republicans.

What is crucial for every voter to understand is that the federal courts, and hence judicial nominations, have an effect on all of the issues listed in the poll. Therefore, if you think that terrorism or abortion or global competitiveness are “extremely important” issues, what kind of men and women a presidential candidate would put on the federal bench should also be “extremely important” to you.

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Speaking of which, here is a video from Senator McCain’s campaign website on the judges issue (HT: ConfirmThem). To those of you out there who support one of the other guys: Don’t worry! We’ll have stuff from your favorite candidate as well as the campaign continues. We aren’t going to play favorites here at CFJ.

Andrew Hyman vs. Prof. Somin and Chuck Schumer

In case anyone missed this post on ConfirmThem.com on Wednesday I thought I would put a link to it here. Andrew does a great job responding to the Somin/Schumer argument that qualified judicial nominees should be rejected based purely on their perceived ideology.

Trende: The Right Has Reasons to be Happy

Richmond lawyer and Human Events columnist Sean Trende believes that conservatives have reason to be happy about the progress they have made in recent years.

“The conservative advance on the Supreme Court has been so glacially slow that most conservatives do not even realize that it has occurred…While the progress has been slow, it has been real…With President Bush’s appointment of Chief Justice Roberts and especially Justice Alito, conservatives can expect the pace of change to quicken.”

He also correctly points out that “[w]hile both Justices Kennedy and O’Connor often disappointed conservatives by placing brakes on the more conservative members of the Court, they often diverged.” Therefore, conservatives have reasons to be optimistic about a shift back towards judicial moderation and respect for the Constitution on cases in which O’Connor, but not Kennedy, disappointed conservatives and libertarians, including government regulation of political speech.

This is all good news. However, Mr. Trende picks the worst possible era in the history of judicial activism, or at least liberal judicial activism, as a comparison. Decisions such as Roe, Kelo, McConnell, Gratz and Grutter still remain on the books and we still have a long way to go before we can say that the Court has returned to its proper place in our democracy with a proper understanding of the original intent of the Constitution.

Furthermore, we can’t focus solely on the Supreme Court. Most of the critical legal decisions made by the federal courts are made at the Courts of Appeal level. With the Supreme Court’s docket shrinking, getting constitutionalist judges on the Circuit Courts becomes even more important, especially with the 2008 elections approaching and the Democrats looking to hold as many seats open on the federal judiciary for President Hillary whether by use of the “Thurmond Rule” or simply by slowing down the confirmation process to a standstill