The Chief Justice & Supreme Court politics
News today that Chief Justice William Rehnquist is being treated for thyroid cancer in a Washington-area hospital, and had a tracheotomy over the weekend to ease his breathing. My thoughts and prayers are with the Chief Justice and his family for a full and speedy recovery.
This news, however, serves to highlight an issue that has, for the most part, flown under the radar screen in this election. For the past two presidential election cycles (1996 and 2000), those warning of the potential of Supreme Court vacancies have been rendered by events into the little boy who cried "wolf." There has not been an appointment to the Supreme Court since Stephen Breyer, who took his oath of office on August 3, 1994.
This is a significant development, as it may guarantee at least one vacancy on the Court in the next presidential administration, through the retirement of Rehnquist. Because federal judges have lifetime tenure during "good behavior," a judge may be on the federal bench for thirty to forty years. Rehnquist himself has been on the Supreme Court for thirty-two years.
So the question each voter must ask before November 2 is, what kind of judge will the presidential candidate nominate for the federal bench, particularly the Supreme Court? I agree with this analysis over at The Corner. I think Bush has already made clear that his nominations would protect traditional marriage, faithfully interpret the Constitution (as opposed to "making new law"), view cases without regard to the color of the litigant's skin, and ensure that people of faith will remain welcome in the public debate. This is a solid foundation on which to base a decision for a nomination to the Supreme Court.
Senator Kerry, on the other hand, stated in the third debate that "I will not allow somebody to come in and change Roe v. Wade. The president has never said whether or not he would do that. But we know from the people he's tried to appoint to the court he wants to. I will not. I will defend the right of Roe v. Wade." Later in the debate, he elaborated on this point: "I'm not going to appoint a judge to the Court who's going to undo a constitutional right, whether it's the First Amendment, or the Fifth Amendment, or some other right that's given under our courts today -- under the Constitution. And I believe that the right of choice is a constitutional right. So I don't intend to see it undone."
Leaving aside the issue of the morality of abortion itself, upon which many Americans profoundly disagree. Kerry, like the Supreme Court in Roe, is unable to define where exactly in the Constitution the right to abortion exists. "The First Amendment, the Fifth Amendment, or some other right that's given under our courts today." So he is left with his initial proclamation: "I will defend the right of Roe v. Wade."
The last time I looked, Roe was not a constitutional amendment in and of itself. Roe has been criticized from the start. This article notes that "The dissenters -- justices Rehnquist and Byron R. White -- asserted what other people have frequently repeated since the decision: The court's judgment was directed by its own dislikes, not by any constitutional compass. In the absence of any guiding principles, the critics declared, the justices in the majority simply substituted their views for the views of the state legislatures, whose abortion regulations they invalidated. Academic critics also pounded the opinion, noting that the court had struck down legislation in the absence of any expressed constitutional provision or history."
Kerry's dogmatic adherence to a decision that has been criticized by many scholars as one of the most poorly reasoned, from a constitutional law standpoint, Supreme Court decisions in the history of the nation, a decision lacking any support in constitutional text or history, does not bode well for those considering his judgment in nominating members to the federal bench.
UPDATE: One additional point. It's ironic that Kerry claims to believe that abortion is wrong, as his church has explicitly stated, but he won't take that article of faith and legislate it on the American public (or some such paraphrase). At the same time, he "believe[s] that the right of choice is a constitutional right." This, despite the fact that it lacks textual support in the Constitution itself. Yet he is more than willing to impose this belief, this "article of faith," if you will, on America. Character still counts, and this hypocrisy does not speak well for the junior senator from Massachusetts.
This news, however, serves to highlight an issue that has, for the most part, flown under the radar screen in this election. For the past two presidential election cycles (1996 and 2000), those warning of the potential of Supreme Court vacancies have been rendered by events into the little boy who cried "wolf." There has not been an appointment to the Supreme Court since Stephen Breyer, who took his oath of office on August 3, 1994.
This is a significant development, as it may guarantee at least one vacancy on the Court in the next presidential administration, through the retirement of Rehnquist. Because federal judges have lifetime tenure during "good behavior," a judge may be on the federal bench for thirty to forty years. Rehnquist himself has been on the Supreme Court for thirty-two years.
So the question each voter must ask before November 2 is, what kind of judge will the presidential candidate nominate for the federal bench, particularly the Supreme Court? I agree with this analysis over at The Corner. I think Bush has already made clear that his nominations would protect traditional marriage, faithfully interpret the Constitution (as opposed to "making new law"), view cases without regard to the color of the litigant's skin, and ensure that people of faith will remain welcome in the public debate. This is a solid foundation on which to base a decision for a nomination to the Supreme Court.
Senator Kerry, on the other hand, stated in the third debate that "I will not allow somebody to come in and change Roe v. Wade. The president has never said whether or not he would do that. But we know from the people he's tried to appoint to the court he wants to. I will not. I will defend the right of Roe v. Wade." Later in the debate, he elaborated on this point: "I'm not going to appoint a judge to the Court who's going to undo a constitutional right, whether it's the First Amendment, or the Fifth Amendment, or some other right that's given under our courts today -- under the Constitution. And I believe that the right of choice is a constitutional right. So I don't intend to see it undone."
Leaving aside the issue of the morality of abortion itself, upon which many Americans profoundly disagree. Kerry, like the Supreme Court in Roe, is unable to define where exactly in the Constitution the right to abortion exists. "The First Amendment, the Fifth Amendment, or some other right that's given under our courts today." So he is left with his initial proclamation: "I will defend the right of Roe v. Wade."
The last time I looked, Roe was not a constitutional amendment in and of itself. Roe has been criticized from the start. This article notes that "The dissenters -- justices Rehnquist and Byron R. White -- asserted what other people have frequently repeated since the decision: The court's judgment was directed by its own dislikes, not by any constitutional compass. In the absence of any guiding principles, the critics declared, the justices in the majority simply substituted their views for the views of the state legislatures, whose abortion regulations they invalidated. Academic critics also pounded the opinion, noting that the court had struck down legislation in the absence of any expressed constitutional provision or history."
Kerry's dogmatic adherence to a decision that has been criticized by many scholars as one of the most poorly reasoned, from a constitutional law standpoint, Supreme Court decisions in the history of the nation, a decision lacking any support in constitutional text or history, does not bode well for those considering his judgment in nominating members to the federal bench.
UPDATE: One additional point. It's ironic that Kerry claims to believe that abortion is wrong, as his church has explicitly stated, but he won't take that article of faith and legislate it on the American public (or some such paraphrase). At the same time, he "believe[s] that the right of choice is a constitutional right." This, despite the fact that it lacks textual support in the Constitution itself. Yet he is more than willing to impose this belief, this "article of faith," if you will, on America. Character still counts, and this hypocrisy does not speak well for the junior senator from Massachusetts.
posted by Hal | 1:45 PM
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