Replacing a retiring Supreme Court justice is becoming -- if it wasn't always -- one of the great rituals of American politics. It's not a dignified process, if it ever was. It's more like a game of chicken: the President's party and the opposition careening at each other, balls out and feet on the gas pedal. But despite all the jockeying for position and the drawing of lines in the sand, it's probably not nearly as important as the parties or the punditocracy try to make it.
Consider:
- Earl Warren, the enduring symbol of the "liberal" Supreme Court, was appointed by ... Republican president Dwight D. Eisenhower.
- Harry Blackmun, author of the landmark ruling in Roe v. Wade, was appointed by ... Republican president Richard M. Nixon.
- Retiring Associate Justice Sandra Day O'Connor, long considered the "swing vote" in upholding Roe, was appointed by ... Republican president Ronald Reagan.
As a matter of fact, seven of the nine justices currently on the court (pending O'Connor's actual retirement) are Republican appointees: Chief Justice William Rehnquist and Associate Justices John Paul Stevens, O'Connor, Antonin Scalia, Anthony Kennedy, David Souter and Clarence Thomas. If Republicans consider the court "too liberal," they have only their own party's presidents to blame.
Once confirmed, Supreme Court justices serve for life (although there's been some debate about whether that was really the original intent ... perhaps we should ask the Supreme Court to decide the issue!) ... and they tend to turn their thinking in directions that the guy who chose them never contemplated, and that might just make him blanch or roll over in his grave.
So why all the kvetching? Because it makes for good politics, that's why.
The president gets to play the "above the fray statesmanship" card by declaring that he won't impose issues-based "litmus tests" when picking appointees.
The president's party gets to portray the opposition as obstructionists who seem to have forgotten that the majority spoke when it elected the president.
The opposition gets to portray the president's party as attempting a putsch to corrupt the nation's one enduring institution, where appointments are for life.
I've never been able to really get caught up in this kind of thing.
In my not so humble opinion, the president is fully entitled to appoint whomever he damn well pleases to the court, and to impose any "litmus test" he likes on prospective nominees (short of, say, demanding a bribe). That's the "appoint" part referred to in the Constitution. You may have heard of it.
Also in my not so humble opinion, the opposing party in the Senate is fully entitled to seek concessions from the president in his choice of nominees and to use whatever parliamentary tactics they can muster to block nominees they find unacceptable. That's the "advise and consent" part (presidents always seem to forget the "advise" part, and presidents' parties always seem to think that the "consent" part should be interpreted as a rubber stamp).
So we're in for a nasty little fight. So ... what? At the end of the day, another hack will don a black robe and ascend the platform from which he or she will deign to dispose of our lives, liberties and property in ways that we can't predict but almost certainly won't like very much. Too bad the fights can't go on forever (gridlock is good, remember?).
Just once, I'd like to see the president get really jiggy with the whole thing instead of schmoozing, publicly renouncing "litmus tests," and so on. Since it's impossible to predict what a justice will actually do from the bench, why not get really bizarre and fuck with our heads a little? Bush could probably save his party some trouble in 2008 by appointing Hillary Clinton to replace O'Connor, taking her out of the presidential lottery. Or hell, why not Bill Clinton? Be sure to hint that you're considering Mario Cuomo first so that he can issue a strong statement denying that he's interested.
Throw us some curve balls, Dubyah. Nominate Clint Eastwood or Mary Carey.
Or hey ... why not draw a random name off the list of those wounded in Iraq or Afghanistan and offer the appointment in lieu of occupational therapy? How about this guy? [Hat tip to Sanity's Bluff]
That would be really, really cool.
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