May 4, 2009
Who Will Replace Souter? 10 Known Knowns
Legal Analyst Andrew Cohen Pleads Ignorance But Shares Rules Of The Game, And Makes His Pick
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U.S. Supreme Court Justice David Souter was the nation's 105th justice. (AP Photo/Jim Cole)
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President Barack Obama, in a unexpected visit to the White House pressroom Friday, May 1, 2009, tells reporters that he just got off the phone with Supreme Court Justice David Souter and they talked about Souter's retirement. (AP Photo/Ron Edmonds)
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Interactive The Supreme Court History, traditions and key cases, plus what it takes to get on the bench.
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Blog Court Watch CBSNews.com Legal Analyst Andrew Cohen's new blog on the big issues and analyzes important cases of the day.
Here's an idea; Let's go find the eight people in America who bet on "Mine That Bird" to win the Kentucky Derby and ask
The crapshoot that was the 135th Derby is easily the equivalent of the know-nothing crapshoot of speculation about whom the next Justice will be.
The people who know who the pick is going to be aren't talking and the people who are talking (people like me) don't know. Don't forget that one essential truth as you are reading, listening or watching to coverage of the lead-up to the nomination (whenever that will be).
In the meantime, to paraphrase Donald Rumsfeld, let's briefly go over the few "known facts" to offer a few confident predictions.
1. There will be a huge confirmation battle no matter whom the President nominates and it will have virtually nothing to do with the academic credentials or intellectual abilities of the nominee. Conservative groups were already railing Friday against what they're calling the current "liberal, activist" Supreme Court (what say you about that, Messrs. Roberts, Alito, Scalia, Thomas and Kennedy?), so it' clear where this will go even if the President selects, as some suggest he will, a "on-ideologue" (whatever that means).
2. The White House will factor into its selection the virtual certainty that there will be one or even two more opportunities during the next four years to replace justices on the Court. This will enable the President to reassure the constituency that "loses" this round (i.e. Hispanics, if a woman is chosen) that their turn will come soon enough. This will likely reduce intra-party friction even as it complicates the "bank shot" for the President.
3. There is a material difference between being a political conservative and a legal conservative, just as there is a difference between a political liberal and a legal one. Justice Souter was despised on the right because he wasn't a political conservative - though he was a legal one. Justice Scalia is adored by the right because he is a political conservative, even though he isn't always a legal one. Be careful of these sorts of convenient but inaccurate labels when the nominee is announced.
4. Unless the President suddenly loses his mind, the White House will select someone who is extraordinarily bright, hard-working, honest, and dedicated to public service. The current crop of candidates is very deep and talented - which happens when one party goes 15 years between Supreme Court appointments. In other words, this isn’t "Celebrity Apprentice," and it will be very hard for the White House to screw things up.
5. No matter whom the President selects, the Court's ideological make-up will not change dramatically. In fact it is unlikely to change at all. The White House is going to select a "moderate-liberal" jurist to replace a "moderate liberal" jurist, and it will be a wash just as the transfer from conservative Chief Justice William H. Rehnquist to conservative Chief Justice John G. Roberts, Jr. was a wash a few years ago. The Court currently is, and will remain post-Souter (short-term, anyway), a conservative-moderate Court with Justice Anthony M. Kennedy as its pivot. We'll still see those familiar 5-4 rulings on contentious issues.
6. To illustrate that point, the Court will have turned over by fully one-third in just the past four years. Gone are Justices O'Connor and Souter and Chief Justice Rehnquist. In their place are Justice Alito, Chief Justice Roberts and the Obama appointee. Unless that appointee is Michael Moore (and it won't be), the Court will be at least as conservative in 2010 as it was in 2005. And this will remain so if liberal Justices Ruth Bader Ginsburg and John Paul Stevens retire before the President's first term expires.
7. American people will be better able than ever before to gauge for themselves the nominee's experience and philosophy. Even more so than in January 2006, when Justice Alito was confirmed, our ability to research and share information via the Internet means that no one who really cares about the process - and the result - is excused from being ignorant or duped. Don't just read or watch what analysts and commentators say about this person, do a little research yourself!
8. The nominee will invariably fail to adequately answer a great many good questions during his or her confirmation hearing. This time, the Republicans will howl that the answers are too incomplete and that the candidate is hiding something - precisely as the Democrats howled that nominees Roberts and Alito weren't leveling with them during their confirmation hearings a few years ago.
9. Accordingly, to be true to its theme of governmental "transparency," the White House should encourage its nominee to be expansive with his or her answers during the confirmation hearing. No more stone-walling. Even the so-called "Ginsburg Rule" (by which subsequent nominees have refused to specifically answer questions about legal issues and topics which they contend may come before them as justices) ought to be limited. Someone, some party, has to break the destructive cycle by which these life-tenured people get to skirt candor in the name of discretion and expedience.
10. In the end, no matter how loud the howls inside the Committee and in the echo chambers beyond, the nominee will be approved by the Senate and become the next Justice of the United States Supreme Court. We all know how this story ends. We just have to sit through all the chapters to get there.
My pick: Michigan Gov. Jennifer Granholm. Woman? Check. Not a sitting judge? Check. Smart? Check. Consensus-builder? Check. Hard for Republicans to bork? Check. Then again, what do I know? I picked "I Want Revenge" to win the Derby. He didn't even make it into the race.
By Andrew Cohen
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More From CourtWatch
Michelle Obama tells how her role as the First Lady has changed her perspective.
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See all 72 CommentsIf only you were a nationally recognized figure rather than an anonymous poster making inconsistent claims with an audience of 2, it might matter. But go with it.
They and the CONS wanted an anti-government nominee when the Bush Crime Family was in power and they want a pro-corporation, anti-middle class nominee when a progressive in in the White House. In short they want everything. Go figure.
she says she needs a job
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Some believe that demographic group is ALREADY represented, Dude!
Think about it.
What if they decide not to retire, what if by some unfortunate accident (plane crash) he doesn't complete his term (I know that thought will upset all you non-Obama supporters out there)?!
No! I think you name your best pick based on the factors you deem important---NOW! And,
don't assume you can name other persons later! The American public expects you to name
your best pick up front---not your second, third, or fourth pick! That doesn't even make sense!
So many games to be played on these boards, right RU? I've seen them all, yours included. The essence of your message is: "I hope that playing the part of something the Conservative Democrats want to distance themselves from will make them run back into the arms of the rebutlickers":
Many can play that game.
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What exists now is more than adequate to keep me away from them permanently and aligned with the largest opposition party.
Posted by mortar29
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Then can you explain Terry Schiavo?
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Thank God she never made it!
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Yes, imagine the additional lasting stink on the shoulders of the republicans if Bush had prevailed pushing that thru.
http://www.youtube.com/watch?v=_VAfJyzN3ak
Posted by mortar29 at 12:26 PM : May 4, 2009
If the GOP was in any way able to lead the country competently or honestly, they'd still be in power instead of eating sour grapes and blaming the press for their downfall.
The GOP will have to remake itself if it hopes to make a comeback.
As of yet they just keep moving further and further to the extreme right.
--mortar29
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Sorry, but I must sincerely disagree here. It is true the Constitution never mentions the word privacy, but privacy is clearly defined in Article IV as being "secure in there persons, houses, papers, and effects, against unreasonable searches and seizures..." How else could one define privacy?
I find it rather disturbing that the argument is whether or not the constitution implies a right to privacy. A "strict constructionalist" would say that since it is not concretely spelled out in black-and-white, it therefore does not exist.
Reasonable people will interpret Article IX to provide it. And, most--if not all--of us would expect our highest court to protect this right!
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