February 10, 2008

But...But...What About the SUPREME COURT!?!?!?

Despite the fact that most conservatives disagree with John McCain about the First Amendment, the Second Amendment, immigration, tax policy, waterboarding, Gitmo, wiretapping terrorists, the constitutional rights of enemy combatants, and...well, just about everything else, we are told by our elites that we must close ranks and fall in behind John McCain because of the criticality of a handful of issues. One of the critical issues cited in support of this argument is the makeup of the United States Supreme Court.

The Pitch:

We've all heard the pitch. The court, we are told, "hangs in the balance." There is presently a consistent 4-4 left-right balance on the court, with a swing vote (Kennedy) who votes more often than not with the conservatives. At least two Supreme Court justices are almost certain to be replaced this next go-round. Republican Presidents, as we know, appoint conservative justices, while Democrat Presidents appoint the liberal justices. The implication is, I think, that if even two justices retire under a Democrat President, our 5-4 majority could become a 6-3 minority. The stakes, in short, are just too high.

Sounds pretty scary, don't it?

The Reality:

Problem is, a good part of "the pitch" is bullshit.


For starters, there is no consistent, 4-4 left-right voting pattern in the Supreme Court. In many cases, the court's rulings are unanimous. Some decisions split across the left-right line, others don't. Out of a group of 72 decisions studied last year, only 24 came down to a 5-4 vote of any type. Of the 72 decisions, only 13 fit the "5 conservatives to 4 liberals" pattern. Other decisions, including some of the most political and controversial decisions, come down to some other mix.

Every term sees examples of "strange bedfellows" on the court. Hamdi v. Rumsfeld was all over the place. The awful Raich v. Gonzales decision split in a bizarre way, with Kennedy and Scalia joining the four liberals. (Contra to this, the Kelo v. New London case was a 5-4 left-right decision in which a more conservative replacement for Kennedy would probably have made for the right decision.)

It's not that there's not any difference between the justices, of course. It's just that the differences are far from being as "cut and dried" as the elites would have us believe.

Who's Retiring?

It is true that there's a decent chance that one or two justices will retire in the next four years, but unfortunately for the liberals, the likely retirees aren't named Thomas, Scalia, Roberts or Alito. The two oldest justices are Stevens (age 87) and Ginsburg (age 74), both generally considered two of the most liberal justices. As far as I know, not a single one of the conservatives is considered a particularly likely retirement in the next four years. Thus, the next President might very well have the opportunity to replace a justice or two, but it's unlikely to affect the existing conservative wing of the court.

In other words, we're in a very different position from where we were in 2000 or 2004, when the next President was likely to be replacing both a conservative (Rehnquist) and a swing vote (O'Connor) during his term.

More importantly, we're in a very different position now than we will be in 2012. Both Antonin Scalia and Anthony Kennedy will hit 80 years of age before the end of the 2012-2016 term. Whoever is elected President in 2012 term will be much more likely to affect the makeup of the conservative end of the court than the next President will.

Trusting the Maverick

The argument for McCain built on judicial appointments assumes that John McCain will do something good in that area (such as nominating Janice Rogers Brown) instead of something horrible (such as nominating Teddy Kennedy). This, my friends, is a very shaky foundation on which to build one's case.

Solidly conservative Presidents can't be counted on to nominate solid justices, and the track record of Republican moderates is even worse. George W. Bush tried to give us Harriet Miers. George, Sr. gave us the liberal David Souter. Reagan gave us O'Connor and Kennedy. Ford gave us the very liberal John Paul Stevens. Of the four "liberals" on the current court, only two (Ginsburg and Breyer) were nominated by a Democrat.

Given this historical reality, is there really a high likelihood that our stubborn Maverick John McCain, darling of the New York Times and Washington Post, even understands the meaning of "justices in the mold of Thomas and Scalia," much less is prepared to follow through with that plan in the face of withering media criticism? Not much, folks.

And no, I'm not saying that Hillary Clinton or Barack Obama would nominate better justices than McCain. What I'm saying is that the chance that John McCain's judicial appointments will be huge disappointments is well nigh 100%, and the idea that John "Thumb in Yer Eye" McCain can be counted on to bow to the will of conservatives on anything, including judicial appointments, is poppycock.

By Ragnar Danneskjold, Typical Bitter Gun-Clinger at 06:20 PM | Comments |