October 26, 2004
THAT OUGHTTA MOTIVATE THE EVANGELICALS:
Illness Adds to Urgency on Court's Direction (David G. Savage, October 26, 2004, LA Times)
Social conservatives like Gary Bauer and liberal advocates like Ralph Neas have found something to agree on this year. Both say the most important issue to be decided in the upcoming presidential election is not Iraq or the economy, but the future of the Supreme Court.Their view was driven home forcefully by Monday's news that Chief Justice William H. Rehnquist, 80, has thyroid cancer.
It has been a decade since a justice stepped down — the longest period of stability since the early 1800s — and now eight of the nine justices have passed the traditional retirement age of 65.
Some, including Rehnquist, are getting old even by the standards of the Supreme Court. Justice John Paul Stevens, the senior liberal, who has survived prostate cancer, will be 85 in the spring.
The prospect that one or more justices will step down in the next four years fires up — and also frightens — conservative and liberal activists.
Tilting the Court is very nearly the only damage a Kerry presidency would do at home.
MORE:
Americans Are Electing a Supreme Court Too (John C. Yoo, October 26, 2004, LA Times)
Even one new justice could profoundly affect a court that is closely divided on important social issues. And two new justices could shift national policy dramatically.Posted by Orrin Judd at October 26, 2004 08:54 AMSlim 5-4 majorities stand behind the decisions that have struck down prohibitions on partial-birth abortion, approved affirmative action programs in colleges and universities, allowed the use of vouchers at private religious schools and restricted use of the death penalty.
Only a one-vote margin has supported restricting Congress' regulatory power in favor of the states, which affects anti-discrimination, criminal and environmental laws.
A 5-4 majority last term agreed that the nation was at war after the Sept. 11 attacks and that the president and Congress could authorize the detention of "enemy combatants" in the war on terror.
A 6-3 margin defends the basic right to abortion first recognized in Roe vs. Wade and the expansion of gay rights in Lawrence vs. Texas that has spurred efforts for a constitutional amendment to prohibit same-sex marriage.
With a closely divided Senate a certainty, Supreme Court confirmation hearings in the next four years could make the outrages of the Robert Bork and Clarence Thomas hearings look tame. And the filibuster, used by Democrats to block Bush's lower-court nominees, may be only the beginning of procedural shenanigans.
Just how bloody a battle might be, however, depends on which justice resigns and which candidate wins. A Bush nominee replacing the reliably conservative Rehnquist wouldn't change the court's status quo or draw a massive fight. If John Kerry wins, however, his choice to replace Rehnquist would mean major change and, most likely, a knock-down, drag-out struggle.
A more politicized nomination and confirmation process is the Supreme Court's own doing. Over the last half-century, it has arrogated power — weakening the role of states and even Congress — when it comes to many political and moral questions. The only way for interest groups and citizens to change policy on abortion, affirmative action or gay rights is to change the justices on the Supreme Court.
Despite bruising confirmation proceedings, however, history shows that it is the president who still makes the decisive choice when it comes to the court. In the last century, the Senate has confirmed 89% of the president's nominees to the Supreme Court. Twelve of the last 14 nominees have taken their seats on the court.
Even in a 55 or 56 seat majority situation, it will be difficult to get extremists on the Court, so I don't quite understand all the fuss. Are Arlen Specter and James Dobson going to agree on a Supreme Court justice?
As long as Specter, Collins, Snowe and Chafee are there, the opposition to potential justices who don't respect the right to privacy implicit in the 9th Amendment will always be able to avoid cloture.
Posted by: Bart at October 26, 2004 10:40 AMThink Specter et al are going to vote against black, Latino & Vietnamese nominees?
Posted by: oj at October 26, 2004 11:53 AMAnd that by Bush supporting Spector's reelection guarantees Spector's ascendancy to the Chairmanship of the Judiciary committee.
Spector better play ball when the time comes.
Posted by: Benjamin at October 26, 2004 12:32 PMI don't know about that. Word on the street is that Specter's not being very helpful in PA right now. If Bush loses PA, but wins the election, Specter might find himself with fewer friends than he thought he had.
Posted by: Timothy at October 26, 2004 12:40 PMIf Bush appoints conservatives who are not obvious nutbars, he should have no trouble and get about 90% of what he wants out of the Court. He doesn't have to wimp out like his father and appoint non-entities of dubious sexuality like David Souter.
Chafee, Snowe, Collins and Specter have made their 'feisty independence' a political vote winner in their home states. Expect that to continue.
Posted by: Bart at October 26, 2004 12:52 PMSpecter will be in his last term - he probably doesn't care much. Unless he want to snarl on a more national level (like Schumer).
Posted by: jim hamlen at October 26, 2004 12:56 PMI realize he is 80, so anything is serious, but there are different kinds of thyroid cancer, some not much worse than a bad cold. Apparently, they are not saying (probably because they do not know; I think it takes a biopsy) which kind he has.
Posted by: Harry Eagar at October 26, 2004 02:07 PM(1) My Aunt had thyroid cancer op a few years ago; hers required a tracheotomy, like Rehnquist's did, but still, she cam through fine, got a good report, and has had no problems since then.
(2) Re: OJ's headline to this thread, the issue of the S.Ct. has been responsible for getting a lot of waverer's off the fence in the evqangelical community. If the real history of this election is ever written, the mostly below the radar screen effforts put into GOTV by the Evangelical and non-cafetria Catholic communities will take up a lot of the book. Even though there has been some medisa coverage, in my opinion they have missed most of what has been going on.
Posted by: Dan at October 26, 2004 02:26 PMBart is behind the times. The "right of privacy" moved from the 9th Amendment to the "concept of ordered liberty" in the 14th.
Posted by: Bob at October 26, 2004 03:45 PMBart:
There is no right to privacy.
Posted by: Vince at October 26, 2004 03:50 PM>There is no right to privacy.
It was invented specifically for Roe v Wade.
Posted by: Ken at October 26, 2004 08:20 PM>I realize he is 80, so anything is serious, but
>there are different kinds of thyroid cancer,
>some not much worse than a bad cold.
They were talking about this on my normal morning drive-time radio, and pointed out two things from the press releases:
1) The doctors did not immediately remove the thyroid, the usual treatment in thyroid cancer.
2) Justice Rehnquist was given a tracheotomy, which indicates the tumor was pinching off his windpipe.
Put these together and it sounds like the worst kind of thyroid cancer, which I understand grows almost fast enough to see with the naked eye and mets almost from the first cell. It's called "anaphlactic thyroid cancer" or something similar, and has a 95% kill rate (where other types have a 5% kill rate).
Posted by: Ken at October 26, 2004 08:25 PMActually, the "right" to privacy was first addressed in Griswold v. Connecticut (1965, I think).
It has been a long ride down.
Posted by: jim hamlen at October 26, 2004 09:04 PMI had the good kind, Ken, though we didn't know that until the thyroid was out.
And they don't 'operate immediately' if you mean the same night. In fact, I was given the option of no surgery at all but chose it as the more conservative approach.
Posted by: Harry Eagar at October 27, 2004 02:55 AM