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Sunday, September 04, 2005

How does the unique political moment impact the SCOTUS nomination?

As I said here after hearing the news, the timing of Chief Justice Rehnquist's death seems as stunning as the news.  Coming only days before the first Senate hearing on a Supreme Court nominee in over a decade and only days after the natural and man-made disasters of Hurricane Katrina, the timing of Rehnquist's passing created a new Supreme Court vacancy (for the top spot, no less) at a truly unique political moment.

Though I can assess the impact of the new vacancy on sentencing jurisprudence, I am far less able to assess the political dynamics surrounding this new opening.   My guess is that President Bush's advisors and others will encourage the President not to be too concerned with short-term political realities when making an appointment with such long-term legal consequences.  Nevertheless, short-term political realities could have a dramatic impact on how the vacancy is examined and whether the Democrats might seriously consider a filibuster on a particular nominee for the Chief's seat.

So, how might this unique political moment impact the Supreme Court nomination dynamics?   Does the stock of a purportedly more moderate candidate like Alberto Gonzales go up?  Might the racial echoes from New Orleans make Janice Rogers Brown or Larry Thompson a more likely nominee?

UPDATE:  This article from the Washington Post discusses some of these political issues and it quotes Virginia law prof Rosa Brooks as saying "I'm trying to imagine what Karl Rove is thinking right now."    And Ann Althouse picks up these topics in this post.

Posted by Douglas A. Berman on September 4, 2005 at 10:06 AM in Constitutional thoughts | Permalink


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Sigh, if only we could get a constitutional right to proportionality in non-death penalty cases. But on the point of your question, this President's only real legacy will be his Supreme Court nominees. It's really hard to guess. I think, that as in all his choices, he will choose the lazy way out.

Posted by: nk | Sep 4, 2005 10:41:47 PM

"Sigh, if only we could get a constitutional right to proportionality in non-death penalty cases." You CAN get a right to proportionality in non-death penalty cases. Pass laws in each affected jurisdiction. Or, if you really are desparate for it to be a constitutional right, which isn't wholly unreasonable, here's a handy primer on how to do that.

While I don't entirely agree with the premise - it's hard to describe anything that Bush has done since arriving in office as the path of least resistance, and so I suspect what you actually mean is less that his actions have been "lazy" than "disagreeable to you" - what, in your view, constitututes "the lazy way out" in this case?

While I've previously expressed some concerns as to the constitutionality of the recess appointment power in cases such as John Bolton, I would submit that the "lazy way out" in this case would be for the President to simply put Roberts and Alito on the bench by recess appointments, right now, and then deal with the problem again in the 110th Congress when he has a filibuster-proof majority in the Senate to play with. But I don't think he's going to do that, and I doubt it's what you meant in any case.

Posted by: Simon | Sep 5, 2005 7:55:09 PM

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