Holding court

The United States Supreme Court has changed a lot over the decades, but here are two major turning points in modern history: Justice Harry Blackmun writing into the Constitution a right to privacy that somehow subsumes a right to terminate life in a mother’s womb; and the shameful confirmation hearings of Judge Robert Bork that turned into a defamation of a fine judge’s work and good man’s reputation. And created the new lexicon of the political process by which we all know what it means ‘to Bork’ a candidate….

Take a look at the photo in this news article, and recall that turning point in our political process of confirming candidates for the High Court.

The confirmation battle over the replacement for Supreme Court Justice John Paul Stevens, who announced his retirement Friday, could become one of the most heated US political struggles of the summer.

Well, doubtful. President Obama has the Congress sewn up in a Democratic majority, and Republicans gain nothing by filibustering his candidate. However, speculation has become a sort of parlour game, so we get pieces like this, noting that

over the last 30 years or so Supreme Court nominations have developed into an intense form of US political theater. Parties and interest groups use them to tussle over everything from hot button issues such as abortion to the general ideology that divides them – as well as the qualifications of the nominee.

They shouldn’t diminish that with throwaway lines. Abortion is more than a hot button issue, considering the human lives lost. And it’s more than a “tussle” when the competing ideologies battle to win legal battles based upon constiutional rights and natural law that informs authentic human rights.

Justice Stevens said that he would step down when the court finishes its work on this session to allow enough time for his replacement to be confirmed before the next term begins in October.

That’s interesting right there, because unlike Justice Sandra Day O’Connor, who said she was stepping down but would stay on until her successor was named and confirmed….Justice Stevens put a finality to his term when this session ends. Thus giving Mr. Obama the summer to get a candidate confirmed and in place for the Fall session, as he claimed he would. More pressure on him to deliver. As some have said, he thus has ‘one shot’ at this, to make that deadline.

President Obama said Friday that he would quickly move to name a successor who would be similar to Stevens.

This will be “someone who, like Justice Stevens, knows that in a democracy powerful interests must not be allowed to drown out the voices of ordinary citizens,” Obama said.

Okay, but if Obama were really intersted in the voices of ordinary citizens, noted NRO’s Ed Whelan,

If the president genuinely cares about not having the voices of ordinary citizens drowned out, he would favor a third way, the path of judicial restraint…

A century ago, it was liberals who advocated judicial restraint and who opposed the freewheeling use of “substantive due process” to invalidate progressive economic and social legislation. Unfortunately, since the 1960s, most liberals have become aggressive advocates of the sort of lawless judicial activism epitomized by Roe v. Wade. Rulings like Roe poison American politics by removing contentious issues from the give-and-take compromise that the ordinary processes of representative government entail.

After the ‘Borking’ of a Supreme Court nominee before the scathing Senate confirmation hearings, subsequent candidates have

been less willing to be forthcoming with blunt answers to questions about their ideological beliefs.

So they’ve learned deftly to evade.

The nominee will be neither candid nor specific in answer to senators’ questions, either about precedents and patterns of jurisprudence, or about overall judicial “philosophy” in interpreting the Constitution.  We will certainly learn nothing new about his or her views, and may even know less after the hearings than before.  The playbook here was written in the Sotomayor nomination.  Disingenuous disavowals will be made of any past statements that openly embraced “progressive” outcomes or the “living Constitution.”

But that is what, at core, Obama believes in, strongly. A ‘living, breathing’ Constitution in need of updating and applicaiton to the lives of ordinary American citizens in these times, never mind the times in which that founding document was written.

So for Court watchers, it’s about to get very intersting again as we enter that all too rare process of naming a Justice to a lifetime tenure on the Court that ultimately determines the fabric of American life. This is what elections are most about….courts and judges.