The Democrats and SCOTUS

Jim Lindgren’s post about the longevity of justices on the Volokh Conspiracy yesterday got me thinking about the role of the Supreme Court in the 2008 election. While it is true that Stevens appears to be in remarkably good health for a man of his age, statistically, it seems highly unlikely he will make it through another presidency, particularly if that president is re-elected in 2012. Therefore, the next president will most likely appoint his replacement.

Unfortunately, the Republican party right now has reached such a state that even the most moderate of their major candidates, Rudy, has made it clear he has no intention of making any moderate nominations. Frankly, the prospect of any more Republican nominees to the bench scares the hell out of me.

Much has already been written about this elsewhere, but Kennedy’s tie-breaking vote appears to be going to the conservative bloc eight or nine times out of ten. Though they aren’t overturning precedents at the rate Scalia-Thomas would like, they are effectively gutting them. Many of these cases feel a lot like back-tracking to me, the schools decision in particular.

Jennifer Rubin at The American Spectator thinks Rudy has made a shrewd move in signaling he will make conservative nominations. She also notes that the Democrats tend to not make an issue of judicial nominations. Maybe they should this time. I know the average American doesn’t follow SCOTUS, but the current term’s decisions have been somewhat alarming in my opinion, and it sure won’t get better if Stevens’s replacement comes from the far right.

UPDATE: Edward Lazarus over on FindLaw argues that all of the possible/probable retirements are liberals. I wouldn’t go that far, but certainly a majority are.


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