Sandra Day O'Connor's seat, to which John G. Roberts has been nominated, represents the pinnacle of government power; here's why:
In our multipart system of government, with its three federal branches plus the states and all of their agents and political subdivisions, the buck has to stop somewhere. With us, it's at the U.S. Supreme Court, which has the final say, the last word, on contested constitutional issues, because it has claimed for itself, in Marbury v. Madison (1803, Marshall, J.) the power to declare unconstitutional, meaning null and void, any measure taken by any other branch except in a few areas where it declines to act, such as 'political' questions. Some call this "judicial supremacy," or "judicial sovereignty." Critics call it "legislating from the bench," or acting as a "Superlegislature."
The fact of the matter is that when the Court decides a groundbreaking case establishing new rights in old (or new) areas, such as privacy/abortion, in Griswold, the Court is accused of being activist and acting as a superlegislature because a new rule has been created by judges, almost the same, in effect as though enacted by elected legislators, instead of appointed-for-life-federal-judges.
Different process, same practical effect, only moreso, as legislatures are unable to overturn constitutional decisions of the Supreme Court.
Legislatures are able to avoid Supreme Court decisions on matters of statutory interpretation not rising to the level of constitutional interpretation, however, by amending the statute, if they wish.
The Court is the ultimate check-and-balance in a system known for its divided powers, divided to break up power into identifiable parts that can better be managed and controlled.
The Court is currently divided into two blocs, as popularly conceived, of four on each side, but sometimes more, since there's enough jockeying around to blur the edges and the membership on various issues that push different buttons on different people for different reasons.
That's why it's so hard to pick the outcome of a Supreme Court case, just as it is to handicap a horse race. There's a million ways to lose a horse race, but only one way to win one. Old race-track saying.
Tending toward the more liberal side are Stevens, Breyer, Ginsburg, and Souter.
Tending toward the right, or more conservative side are Chief Justice Rehnquist, Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy, altho' the latter is more centrist than they are.
In the middle has been Sandra Day O'Connor. She could slice the baloney exceedingly thin to decide a case without proclaiming whole new fields of rights, doing justice without rearranging the living room.
The president rarely knows what he's getting when appointing a new justice. It's as though he hands the nominee the mallet with which to hit him over the head as soon as he's confirmed.
"Here, friend, try not to knock my brains out, please," is about the best the president can say, because the job of the person he hands the mallet to is to knock the president back into line the moment he gets out and the case comes up.
That's what the Court did to Pres. Truman when he took over the steel mills during the Korean War and the Court made him give them back, even against a claim of national security. You need steel to fight a war. Tanks and ships, you know.
This is what the Court did to Pres. George W. Bush in Hamdi, where it told the president he couldn't just hold people indefinitely by slapping a label on them ("enemy combatant") but had to see to it that they were either brought before some kind of official tribunal so they could say, "You've got the wrong guy," or cut him loose.
The president may be boss when it comes to nominating, but he's nominating someone to ride herd on him, in the final analysis, once confirmed.
It must be an odd feeling, picking your own whip-master and handing him the whip he'll use to thrash you if you don't watch out.
It would also be more than nice if the new justice realizes that he isn't taking his new seat, when confirmed, with a view in mind to repeal rights that have already been entered in the account book, even if he wouldn't have voted them into existence in the first place.
Leave bad enough alone, if that's your view of certain rights, because other people love them and have arranged their lives in reliance on their continued existence. Those rights represent promises. It's bad enough to take-back statutory promises, but worse to take back constitutional promises without very strong reasons.
Yes, I realize that the Old South relied on the (original) constitutional promise of continued slavery. I also realize that there were very strong reasons to take back that promise. It took a war to do it, the Civil War, followed by the 13th, 14th, & 15th Amendments plus another century and more of struggle to get rid of the resulting Jim Crow laws. We continue this struggle in the form of affirmative rights issues in public education, jobs, housing, contracting, and the continuing ghettoization of African-Americans.
As a test of where a person stands along the liberal-conservative spectrum, It seems to me that one could devise a spreadsheet with the following entries down the left margin:
- Radical
- Liberal
- Libertarian
- Conservative
- Reactionary
I've placed Libertarian between Liberal and Conservative because some conservatives are so conservative on some issues that the positions they take place them in alliance with Liberals, and maybe vice-versa.
Across the top of our attitude spreadsheet could be the following, plus any you'd care to contribute, because this cannot be a complete list.
- Willingness to tolerate change
- Empathy towards other groups than yours
- Empathy for moral and legal equality towards women, juveniles, the poor, the handicapped, the elderly, the sick and lame, the less fortunate, disfavored minorities, aliens, etc.
- Support for individual rights of privacy in various areas versus government intrusion, such as:
- Law Enforcement, search and seizure, surveillance
- Reproductive Rights, Abortion access to information and services
- Church-State relations, public displays of religious symbols, state support of faith-based institutions
- Press-Reporter-Source protections on news gathering, reporting as against state power forcing disclosure on pain of jail for non-compliance
- And so forth ad infinitum.
So, if you really want to know what makes someone tick, you'd have to come up with a spreadsheet of attitudes and issues. Sort of a Sentencing Guidelines for Supreme Court nominees, with points for each category. Fortunately, the Court in Blakely, found the U.S. Sentencing Guidelines unconstitutional. A person found guilty of a federal crime got so many points for blameworthiness of the offense down Column A, and so many points across the top for leading a blameworthy life.
The result was a matrix that fit on one page like one of those Point-of-Origin, Point-of-Destination tables on a road map that tells you the number of miles between where you are and where you want to go, only the number in the Guidelines translated to months and years in the federal penitentiary.
What made this unconstitutional was not that, but the fact that the person doing the fact-finding was a federal judge, not a jury of ones peers. It violated Magna Carta. The jury would find a person guilty of selling drugs, and the judge would start piling on years and months by calling the offense "especially sophisticated," and by counting the talcum powder along with the heroin to increase the weight and the street value. Now a jury has to do that, but the prosecutor has to allege and prove it, and the defense gets a chance to rebut.
At any rate, a Senator considering whether to confirm a nominee to the Supreme Court might want to see a spreadsheet showing the candidates attitudes and issues. I don't advocate doing this, however. It's way too intrusive for my comfort.
The confirmation hearing questioning, however, is designed to get as much of this information as possible so Senators can know what they want to vote against and explain to their constituents.
The nominee and his White House handlers know this game very well, so their job is to be as little forthcoming on issues on which opponents can get a handle to flog them with as possible.
The horribly wounding Clarence Thomas confirmation hearing in 1991, is an example where that didn't happen. The Bork hearing before that, in 1987, resulted in rejection of the nominee, as happened in the Clement Haynesworth and G. Harrold Carswell nominations by Pres. Nixon. Douglas Ginsburg was also turned down over admitted marijuana use during college.
No excuses for youthful indiscretion in this ballgame. It's straight-shooter, Eagle Scout, or else. Liberals are willing to forgive and forget, but not conservatives. They want to inspect your rap sheet. I doubt you see many conservatives going into social work and the public defender's office. More likely they wind up in the DAs office prosecuting welfare fraud.
Here's a Law.com article on the experience of other attorneys working with Roberts on matters they tried to interest the Supreme Court in. He sounds like a closet conservative.