John Dean: Supreme Court Is At the Tipping Point (Senate Dems, heads-up from the expert)

[seafan]

The Supreme Court Is At the Tipping Point: Should A Democratic Senate Prevent Bush From Creating A Solidly Conservative Court?

By John Dean
February 23, 2007

"It has been two decades in the making, but this is the year Justice Antonin Scalia, the Supreme Court's most outspoken dissenter, could emerge as a leader of a new conservative majority," reports David Savage, legal reporter for the Los Angeles Times. Savage says that the Court will soon issue rulings relating to race, religion, abortion and campaign finance "where Scalia's views may now represent the majority."
David Savage's analysis is a reminder that the High Court is closer than ever to a conservative tipping point. Today, the conservative bloc consists of Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. The center-left justices are John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

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What if Stevens, Souter, Ginsburg or Breyer should leave the Court during the remainder of the Bush Presidency? Bush would very likely opt to select another conservative, and create a conservative majority on the Court. This prospect makes conservatives salivate, and liberals shudder.
This hypothetical scenario is anything but a reach. Justices Souter (age 67) and Breyer (68) appear to be in the best of health. However, Justices Stevens (86) and Ginsburg (73) are the oldest members of the Court.
If fate were to open one of these center-left seats on the Court, Senate Democrats should immediately advise the President that they will only consent to a nominee who is a moderate.
Indeed, they should make crystal clear that if Bush, a lame duck president, sends another rock-ribbed conservative nominee who will clearly tilt the Court, they will leave the seat vacant until the voters have spoken as to whether they want a solid conservative Court. (A vacant seat would certainly raise the already high stakes of the 2008 presidential race, and while it would put a burden on the other justices, it would only be temporary.)

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But a president who late in his presidency seeks to influence the Supreme Court is, by definition, picking a fight. Thus, if Bush should find himself with a Supreme Court vacancy, Senate Democratic leaders should take the initiative. The Constitution calls for them to give "advice" to the President about such nominations. So they should explain why they will reject any nominee of the president who might drastically change the disposition of the Supreme Court, by giving it a solid conservative majority. Here are a two suggested approaches for Congress to take:


Hold No Hearings Whatsoever The Senate could simply inform the president that given the current political balance of the country, not to mention the reaction of voters in 2006, the American public should have a chance to speak at the polls before any president effects a radical change in the Court. (Obviously, the closer to the November 2008 election that any such a Court vacancy occurred - and I hasten to add that I hope no vacancy does appear - the stronger this argument that Bush should do nothing.)
Based on the Fortas precedent, at the five-month point before the election, the Republican members of a Democratic controlled Senate felt it was well within its rights to tell a president they would not even consider a replacement; rather, it would be for the next president to fill that vacancy. At twenty months out from the election - as is the case today - a different approach is required.


Advise The President that No Conservative Will Be Approved. Should a vacancy occur more than, say, ten months away from the election, then Senate leaders should simply inform the President that they will not let him lock in a solid conservative majority on the Court. Many convincing explanations can be given for the Senate's taking this stance: For example, public opinion is not ready to remove the separation of church and state, nor to return prayer or teaching creationism to public schools. Moreover, polls show quite clearly that the majority of American do not want Roe v. Wade overturned. And these are just a few of the actions that would be undertaken by a Scalia-led Court that would not command public agreement or assent.

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Senate Democrats likely would be joined by several of the moderate Senate Republicans in their efforts to block the filling of any vacancy until after the 2008 election. Thus, so long as the Democrats have control, Bush is not going to be able to permanently tilt this court.

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