The media is abuzz and hoping for a great battle. While most Americans are not particularly excited about the choice of a new Associate Justice for the Supreme Court, activists from the left and right, and those who report or comment on politics, are fired up.
So it is a worthwhile exercise to separate some of the developing mainstream mythology about the current and future state of the Court from the reality.
1. Sandra Day O'Connor has not been the key swing justice. The liberal activists, Democratic senators and their media acolytes have been making the case that O'Connor has been a good (meaning moderate or centrist) conservative judge — the kind that sometimes votes with the liberal bloc on the court to produce 5—to—4 majorities (and presumably thereby saving the Republic).
Some on the left have let their enthusiasm for Justice O'Connor lead them into the realm of fantasy. The Los Angeles Times editorialized that O'Connor was on the winning side of all 13 5—to—4 decisions in the Court's last term. Blogger Patterico quickly pointed out that this is sheer nonsense, easily disproved by even the most rudimentary fact checking. Amazingly, The Los Angeles Times seems to have missed the fact that O'Connor wrote a stinging minority opinion in the Kelo case (decided 5—to—4) on eminent domain only two weeks ago, and was on the winning side on only one of two Ten Commandments cases, each decided 5—to—4 last week (8 of the 9 justices voted the same way in the two Ten Commandment cases, 4 voting for its use, and 4 against both times).
Justice Breyer was the swing vote on the Ten Commandments cases, once accepting its use in Texas, once rejecting it in Kentucky, to form 5—to—4 majorities and win both times. O'Connor was opposed to the displays in both cases. In fact, O'Connor was with the majority in 13 5—to—4 decision in the last Court term, but on the losing side on 11 of these cases. Her winning percentage in the 5—to—4 decisions was 54%. Now realizing that there were 24 5—to—4 decisions, that means the total number of times justices were on the winning side was 120, and the total number of times they were on the losing side was 96. So the average justice had a winning percentage in 5—to—4 decisions just below 56%. (5/9ths of the time). So O'Connor was below average in terms of being a winner in the split decisions of the Court. And O'Connor was not the "swinger" on the Court, but part of a group of swinging justices.
2. O'Connor in reality was part of a Gemini—twin duo with Justice Kennedy. The two were a group in the sense that they each occasionally disagreed with the three conservatives on the Court, Rehnquist, Thomas and Scalia, who most of the time voted as a bloc. When this happened, only one of the two generally disagreed with the three conservative justices, enough to deliver a 5—to—4 win for the liberal bloc. At times, it almost seemed that the two took turns bailing out on conservative principles.
Breyer and the the other liberal justices rarely formed a 5—to—4 majority with the three conservatives and either Kennedy or O'Connor. The conservative bloc held a majority on controversial issues on the Court only when both Kennedy and O'Connor voted the same way. Many point to the Bush v Gore decision as one such instance, and certainly it was an important one. But they neglect to add that on the key finding of the Court in that case — that the Florida Supreme Court had violated the equal protection clause of the 14th Amendment with its ruling to continue the vote counting in a very haphazard fashion, with inconsistent rules for the vote counters from one county to the next — 7 of the 9 justices agreed, including liberals Breyer and Souter. That should tell you how awful the Florida Supreme Court decision was which the U.S. Supreme Court threw out, regardless of what one thinks of the judicial wisdom of Bush v Gore.
3. Even if President Bush were to replace O'Connor with a new justice who was a reliable conservative vote, the conservative bloc would still be only 4, with the maverick Kennedy as a possibility for a 5th vote.
Abortion decisions are the brew that stirs the blood of court activists on both sides. But Roe v Wade passed with 7 votes, and was affirmed with 6 in the Casey decision. To quote the rhetoric hurled at Robert Bork during his appointment (and rejection) process in 1987, the Court today is not 'one justice away from injustice,' if the definition of injustice to the 'liberal mind' is five reliable conservative votes, or overturning Roe v Wade.
4. If the ailing Chief Justice Rehnquist is the next justice to retire, as everyone expects, that too will not enable the President to change the calculus just described. If Bush were to appoint a solid conservative to replace the solid conservative Rehnquist, the Court would remain as is in its ideological makeup. Some writers and Democratic Senators have argued that replacing Rehnquist with a conservative is one thing, but replacing O'Connor with a conservative is another, since she is a moderate. This too is nonsense. There is nothing in Supreme Court history suggesting that replacement justices are supposed to hold the same ideological views as their predecessors. Justice Thomas replaced Justice Thurgood Marshall. Thomas and Marshall did have something in common, but it was not ideology.
By signaling President Bush that he will have a far easier confirmation process for his appointee if he selects a moderate instead of a more solid conservative nominee to replace O'Connor, Democrats and liberal activists are encouraging him to appoint someone like Attorney General Alberto Gonzales. For Bush, this would play into the strategy to win increasing Hispanic voting support for Republican candidates.
However, the appointment of Justice Thomas had no visible effect on the Republican percentage of the vote among African Americans in subsequent elections. In fact it dropped a few points. Republicans have done far better among Hispanics in recent election cycles, increasing their share of this group's growing vote. It would be hard to make the case, though, that that success resulted from the appointment of visible Hispanics to the Cabinet. Arguably, the Gonzales appointment to Attorney General elevated him to a role with as much visibility as an Associate Justice on the Court.
5. Moderate conservatives appointed to the Court in the past few decades may or may not drift to the left, but they virtually never become more conservative. O'Connor or Kennedy remained moderates, but the ranks of liberals on the High Court have been fortified by Republican appointees Earl Warren, David Souter, and John Paul Stevens. One would have trouble finding recent examples of liberal or moderate justices who became more conservative on the High Court. Liberal Justice William Douglas wrote perhaps the toughest rebuke to affirmative action in the DeFunis v Odegaard case in the 70s, the first major case of its kind that came to the Court's attention. But this was a singular event in his long career as a liberal on the Court, not a career drift to the right.
Democrats and liberals clearly have hope that Gonzales is their kind of moderate conservative, and they are pleased that some conservatives are lobbying to keep him from being selected. The all—but—official newspaper of the DNC, the New York Times, advertised the conservatives' worries about Gonzales yesterday, signaling, of course, his acceptance by the left.
I have no way of knowing what kind of Justice Gonzales would be. But the President knows him a lot better than anybody else in politics does, and Bush's political goal remains a transformative one. If Bush appoints Gonzales (which he may not), I would bet he would get a twofer: the Hispanic he wants for the Court, and a reasonably reliable conservative Justice who won't join the liberal bloc, at least not as frequently as Kennedy or O'Connor have.
6. Conservatives do not want to waste either of these appointments, since even under the best of circumstances, two new conservatives plus Scalia and Thomas only makes four. After Rehnquist, the next most likely retirements are from the liberal bloc. Justice Stevens is 85 years old, while 72 year—old Justice Ginsburg has survived cancer. Stevens, the most vocal liberal on the Court, would likely leave office during a Bush Presidency only from death or debilitating illness.
If Bush goes two—for—two, replacing O'Connor and then Rehnquist with solid conservatives, and also gets the chance to replace either Stevens or one of the other liberals, then expect holy war. But for the O'Connor replacement, the stakes are not as high in terms of securing a conservative majority. It is only a preliminary bout. But then again, it is very good for fundraising for partisan groups to go to war over the Court.
7. Bush has two advantages in getting whomever he wants confirmed. First, the Republicans hold 55 Senate seats, so the Judiciary Committee will move his nominee to the floor. Second, Americans think the filibuster controversy has been resolved. Every pollster has found that most Americans liked the compromise over judicial appointments (to the extent that they understood it). They also did not like the Democrats' use of filibusters to block judicial appointments.
But the public also did not want Senate traditions changed to eliminate the use of filibusters. (Of course the tradition had already been changed by the Democrats' use of filibusters to block Appeals Court nominations, but the Democrats largely won the debating point).
The public sentiment on these issues seems to give Bush a very strong hand going forward. The 14 compromising Senators, in particular the seven Democrats among them, will be hard pressed to find a reason why Democrats should filibuster a qualified conservative appointee, given the Appeals Court Justices they recently agreed to accept. While filibusters and constant negativism appeal to the MoveOn.org /Daily Kos hard core left base, most Americans believe the President (any President) should get his nominees through.
My prediction is that Bush will appoint a solid conservative, and if Gonzales is the appointee, he will surprise some conservatives by voting like one.
Richard Baehr is the chief political correspondent of The American Thinker.