The (Possible) Mother of All Battles: What If a Conservative Supreme Court Justice Retires?

This is not a prediction. I don't know how to see into the future, and I've long lamented the besetting journalistic sin of confidently asserting what's going to happen.

So call it a possibility -- one that, should it develop, is going to make the political wars of the recent past look like models of bipartisan civility.

This possibility rests on two assumptions: First, that Republicans will make significant gains in the Senate this November; Second, that between January of next year and Election Day 2012, one of the five conservative Supreme Court justices will leave the court.

The first assumption is a probability; the second, nothing more than a hypothetical. If it becomes reality, start moving the furniture out of the room.

First, some background: since George W. Bush's re-election in 2004, there have been for departures from the Supreme Court bench. In three cases -- and here I'm using an oversimplified yardstick -- there was no real ideological shift. Conservative Chief Justice Rehnquist was replaced by conservative Chief Justice John Roberts; liberal David Souter was replaced by liberal Sonia Sotomayor, and liberal John Paul Stevens will be replaced by liberal Elena Kagan (barring a last-minute hitch).

However, in one case -- the replacement of Sandra Day O'Connor by Samuel Alto -- the change meant a measurable shift to the right -- on issues ranging form corporate campaign spending to gun rights to abortion restrictions.

Now imagine it's 2011, and the Senate has become more Republican than it is now; And imagine that Clarence Thomas or Antonin Scalia -- or Roberts or Alito or even Anthony Kennedy (the "swing justice") -- has to leave the bench.

AP

For conservatives, anyone likely to be picked by President Obama's will represent a dramatic shift on the Court. Why? Because many of the Court's recent controversial decisions -- on gun rights, late-term abortions, corporate campaign spending -- were 5-4 votes. The impact of an Obama-chosen justice replacing a conservative on the Court would be far, far more consequential than Sotomayor for Souter or Kagan for Stevens.

And that means that the confirmation struggle is likely to go "nuclear."

It means that the arguments that arose when George W. Bush was president will be heard again -- but with both sides arguing the opposite of what they espoused five years ago.

Back then, Democrats asserted that a judicial filibuster -- forcing Mr. Bush to gain 60, rather than 51 votes -- was a critical tool to protecting the Court. Republicans said the judicial filibuster had no place in the Senate, and urged Vice President Cheney (the presiding officer) to rule such filibusters out of order. (The conflict was postponed by a bipartisan agreement to shun the device except in rare cases.)

If there is a liberal nominee posed to replace a conservative, we are sure to hear Republicans arguing for the merits of a filibuster, while Democrats attack it as an invalid tactic. We will hear Republicans arguing that ideology is indeed a legitimate ground for voting against a nominee qualified by experience; while Democrats, who once asserted precisely that point, will argue that qualifications and competence are what matters.

We may even hear conservative academics argue, as one prominent liberal law school professor did after the disputed 2000 election, that the Congress should simply leave the position vacant until voters decide in 2012 who should be nominating justices. Indeed, the closer we are to the 2012 election when and if a conservative justice retires, the more intense the political fight will be.

It's worth noting that the only time in recent history that a president did not get a nominee through a Senate controlled by his party was when President Johnson tried to elevate Justice Abe Fortas to Chief Justice in 1968. A coalition of Republicans and conservative Democrats, looking at the strong possibility of a Nixon victory that fall, blocked the confirmation.

The potential for gridlock and conflict becomes even greater if we imagine a Republican takeover of the Senate in November; meaning that the Judiciary Committee, and the Senate calendar, would come under the control of Republicans, In that case, try to imagine what kind of nominee Mr. Obama could get confirmed.

Give up? So do I?

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Jeff Greenfield is CBS News' senior political correspondent. You can read more of his posts in Hotsheet here.

[thy-only_king]

What If a Conservative Supreme Court Justice Retires?

We will force them to work until Obama is out of office.
Keep them on life support if needed.

[perish2]

The nominees are fine and the country will survive if we get some left wing judges to go with the activist crazees we have now like Ginsburg. Not ever meaning any one harm, but, isn't she about due for the long sleep? thankfully, we have both parties represented on a regular basis so the court never gets too one sided. I do wish though that the members would retire a little more often. I hate to talk term limits but it might just be good form to not keep the position forever. they could wait until their party was in the executive to retire. I don't care as long as they retire.

[Chipshot2]

Canada's population is roughly 11% that of the US. You are about right on that one. As to the US buying our energy, that is true enough but we could find other customers (China for example) if you would rather buy elsewhere. Canada is your largest and most stable supplier. Hugo Chavez in Venezuela supplies the US with lots of oil but he is hardly stable. Iran is not exactly friendly and the gulf states are only a step removed from fundementalist Islamic domination. Their relationship with terrorists is a dirty secret. Trade is a two way street in which both sides benefit.The US economy needs stable energy supplies as it can only partly supply itself.

You could also use a history lesson. The US did not get into the Second World War willingly. It took the Japanese attack on Pearl Harbour to do that. Then it was Adolf Hitler who declared war on the US on December 11, 1941. President Roosevelt knew that US pulic opinion would not accept war in Europe unless coerced and Hitler graciously obliged. Canada meanwhile had been in the war since September 1939 and Canadians had been fighting in Hong Kong and Singapore as well as in the Royal Air Force (some American volunteers did too) and the Atlantic helping to keep the sea lanes free. Canadian troops fought in Italy, France, Belgium and Holland. Almost 20,000 Canadians who fought in the RAF and the merchant marine were killed during the war as well as tens of thousands of regular troops. You did not save us.The war was won by forces of many countries and easily the largest contribution was from the Soviet Union which lost 20 million people in fighting the Germans to a halt and then ultimately all the way back to Berlin. You did not save them either although American trucks and supplies played a significant role in the eastern war.

As to whipping us, I cannot see where this comment has any fact. The only conflicts between our countries came decades before Canada became a nation in 1867. In 1775 Generals Montgomery & Benedict Arnold invaded Canada as part of the American revolutionary war against Britain. After occupying Montreal, the forces split and Arnold tried to take Quebec City. Alas for him he did this in December and January when the weather is nasty and he was repulsed. The rest of the war was fought on American soil and against British regular forces allied with native forces. This turned out better for the revolutionary army and you became independant.

The other conflict was the war of 1812-1814 which was also against Britain although largely fought in Canada. General Hull lost Detroit General (later President) Harrison was defeated at Queenston Heights and Lundy's Lane (near Niagara Falls) by a mixed force of British regulars, Canadian auxilliaries from Quebec and native forces under Tecumseh. Harrison subsequently took and burned York (later Toronto) but retreated to Us soil. British forces burned Washington in retaliation. The Star Spangled Banner was written during the valiant but futile defence of Baltimore & Washington. The only significant American victory was at New Orleans where sharpshooters under Colonel (later President Jackson) inflicted a bloody defeat on a British army that attacked a well fortified US position. Alas this victory came several weeks after the war had ended as news carried slowly in those days. the war itself was essentially a draw with no territory changing hands and the end of the war against Napoleon ended the need for British ships to interdict the Atlantic or impress US sailors.

Other than these two conflicts, neither of them against Canada as Canada did not yet exist, there has been no war between our two countries ergo no whipping ever happened. That is just pure jingoistic nonsense from someone who evidently has very little real knowledge of history.

[Chipshot2]

In Canada our Supreme Court is appointed from a short list of qualified candidates submitted by the Canadian Law Society and so seldom generates any real controversy. It is true that Canadian politics tend to be more or less close to centre with neither right or left wings having much real clout and this helps to make appointments to be done without much sparring.

I find the American process wherein candidates tend to be very conservative under a Republican administration and very liberal under a Democratic one (Sandra Day O'Connor was an exceptional case)and then undergoing a severe partisan grilling and intrusive questions about beliefs and opinions from senators to be very disturbing. The result is that the merits of any particular case become subject to the ideology of the majority of the court and a decision that is confirmed now may be overturned later simply because the balance on the court has shifted and not because the facts or merits of the case have significantly changed.
You see this clearly in the number of 5-4 decisions in which one can confidently predict which justices have voted on each side without knowing the actual votes. This is very disturbing because it means that the decisions are tainted by partisan considerations and may therefore not be just at all.

I am not taking sides or making any comment on the issues themselves. I am simply pointing out that, when the votes are predictable then something is badly askew. Decisions should be based on the Constitution, the law, legal precedents and the merits of a particular case. If they are based on the ideological positions and prejudices of the justices then the decisions themselves are worthless. The Supreme Court, as should any court, must be an impartial arbiter.In my opinion it has long since ceased to be that.

[perish2]

Canada has about one tenth the U.S. population and their entire economy is being floated by sales of oil and gas to the U.S. Canada would be speaking German if it wasn't for the U.S because without us Hitler would have walked right in. The same with communism. We whipped Canada once just like we whipped Mexico and when we want Canada's opinion we will whip it out of them again. I do kind of like Dan Ackroyd though. But you can take back Michael Myers!

[noloyalisti]

We rightly should impeach ALL the justices (that would be ALL the conservative activist judges) who voted to give corporations human rights.

We know who they represent!

[cassjr1947]

I believe the Neoclowns just take what the Democrats used to get elected and just change the name from Bush to Obama. When will they find something original? Their Party is in shambles and they choose to trash talk the Democrats out of office. The only win for them would be to fatten up their wallets. They are drooling over Big Oil and Huge Corporate monies both in political donations and the "Graft in cash". If you vote for a Neoclown... break out the red nose as you will wish to accent the deadly face you see in the mirror.

[perish2]

All the biggest corporate donations are to demorats. all corruption and cronyism and crime going on now is all demorat. They control everything and have the power to do whatever they want. They are the "party of the rich" yat they still have all these sycophants that never check the facts to see that it is all them. They spent nearly $200 million more in the last election. They have muliples of wealth over the Republicans in government. In the 80's they tried to destroy any judicial nominees that didn't think like the demorats said they should think. They are truly the party of users and abusers. Rich fat cats on top telling all the poorest that they care and the other guy is a bad person. And the poor fools eat up all the classism and racism while never even noticing that the demorats who control them are far worse than any others.

[noloyalisti]

The conservative justices they are on the side of calling elections for war criminals (Bushoccio), and that corporations should have even more power to run everything at the expense of democracy.

So the conservatives have shown they are not for human, civil and equal rights which is bad for EVERYONE.

[samael2014]

"Give up? So do I."

What, in trying to determine how you're political bias can serve as a basis for drawing a "conclusion" that the issues and reality regarding Senate confirmation are of equal political and idealogical bias? Yes, if you're part of the team on CBSnews that has declared our Supreme Court to exist of "liberals", "moderate conservatives" and "conservatives" -- ABSOFREAKINGLUTELY, I give up -- that is in trying to understand that you don't see the continuous bias towards slanting a court that is by any perspective -- certainly a world-wide idealogical perspective (which is absolutely the baseline for idealogy for individual members of the Supreme Court, because idealogy that serves any purpose whatsoever in determining whether our laws are consistent, and our U.S. Constitution is protected, must be idealogically neutral from ANY political bias within the United States). So there is no freaking way in hell, you can even call the current Supreme Court predominantly liberal to moderate conservative by any neutral U.S. political perspective, and this court is dominantly extreme right wing from most world perspectives.

So, yes... but why would anybody like Jeff Greenfield even ask?

I mean listen to some of the other $hit this guy tries to establish.

"Back then, Democrats asserted that a judicial filibuster -- forcing Mr. Bush to gain 60, rather than 51 votes -- was a critical tool to protecting the Court. Republicans said the judicial filibuster had no place in the Senate, and urged Vice President Cheney (the presiding officer) to rule such filibusters out of order. (The conflict was postponed by a bipartisan agreement to shun the device except in rare cases.) "

I'm not sure if you're even listening to what you yourself are asserting, following a threat by Cheney to rule such filibusters out of order -- I know, flabbergasting coming from a Republican; the actual agreement was to shun the device except in rare cases.

So how in the HELL would any further attempt by either party to filibuster a Senate majority confirmation be acceptable leverage by either party. It was clearly refused to Democrats at a particular time in history, with a resolution being an agreement that it be "shunned", so how could this possibly be used as leverage by Republicans at freaking all after completely blocking the attempt by Democrats? What possible indication is there, that this is a bi-partisan issue asserted and blocked by either party at different times?

You can't simply say Democrats assert something and aren't allowed it, as being the same as Republican's demanding this as an actual tactic, based on Democrats asserting this and being denied it at a previous time. What kind of jackass would draw this kind of comparison. Particular when you consider the Republican record for filibustering in general?

It's not like you have an equal concentration of abusers on both sides of the political spectrum here? So why would a "free press" "journalist", try to make this seem like a bi-partisan issue?

Yes, indeed it's worth noting that the only time a President didn't get a judicial appointee confirmation was a Democrat at the height of civil right legislation. And that this was blocked by Republicans in consort with Conservative Democrats primarily from the South.

And, it's a FREAKING WONDER why this wasn't mentioned at the beginning of an article attempting to assert some claim about attempting to hi-jack the confirmation process with a technique like a filibuster is somehow equally something likely to be abused by Democrats (who were flatly denied this) and Republican's who are the HISTORIC MASTERS of using filibuster intentionally side-track and/or derail the democratic process and majority rule.

What another ******* "report" from the clear and level headed perspective of one who views the court as primarily liberals who fail to sway "moderate conservatives" on issues like gun control, corporate rights as an individual citizen, and other right-wing objectives that leaves a majority of U.S. citizens and the rest of the world dazed and stunned, from a U.S. Constitution perspective.

[perish2]

Apparently you never heard the term, "Borked"! A fact suspiciously left out of your cute little tirade. What about Clarence "Let's destroy this man over the stupidest arguments of sexual harrassment" Thomas? When it comes to judicial nominations the democrats should lower their heads and ask for forgiveness for being such manipulative lying partisan criminals!

[Cattzen]

The Republicans are nothing but the Party of "NO!"

no more, but now less...

[NoWayJose9999]

The sooner the better since these conservative rats have made a mockery of our constitution.

[jaimo62]

Are you joking? For the record, the Constitution doesn't support 95% of what your President wants to do to this great Nation of ours.

[Govgirl]

This statement alone is all the evidence I need that you have never actually READ the Constitution.

[prohb]

This article is a clear example of what I would call negative provacative journalism or "provojournalism". It was only written to hopefully generate hundreds of wild blog rants....better yet if the extreams from all sides weigh in. Is that how media bosses judge you writers now????
And I know you are are actually looking forward to (and hoping for) this "mother of all battles"........

[Heretic1010]

I read a quote recently that I think applies here:

"Absolute freedom of the press to discuss public questions is a foundation stone of American liberty."

The key here is ?discuss public questions?. Maybe you see this sort of article as nothing more than a thin and cheap method of stirring artificial controversy as a means of self-promotion. This is the same tired criticism leveled by those short-sighted individuals who fail to recognize and understand the value of public discourse, to modern society, to the history of our country, and to the liberties most of us take for granted.

What could possibly be wrong with a journalist discussing an honest-to-goodness issue, one we as Americans really SHOULD be discussing? Would you rather the author of this article write about the latest in breaking news regarding the cast of "The Jersey Shore"?

If the author of this article ?only? wrote it to ?hopefully generate hundreds of wild blog rants?, I?ll take my hat off to him. I would rather see an open and public exchange of ideas and perspectives than suffer through more of the ?infotainment? that passes for news in this day and age.

So please; take you narrow-minded whining elsewhere. The grown-ups would like to have a discussion about things that actually matter.