Future of SCOTUS

The New York Times has an article on what Washington would look like in the next 2 years if the Democrats were to win one, or both, houses of Congress in a month. There is a mention about halfway through the article discussing how such a situation would affect judicial appointments, with bravado being offered from Patrick Leahy, suggesting that no ideological partisans would make it to the Supreme Court.

I think things would be more drastic than that. Conservatives have a phobia about "moderate" judges. After all, they may turn out like David Souter, who most now believe is a complete lost cause, or Anthony Kennedy, who is close. Instead, tea leaves must be read to ensure that future Justices are "really" conservative.

There's a big problem, however. Justices, like anyone else, often revise their opinions after they've been banging around the echo chamber that is Washington for awhile. Harry Blackmun rather famously became one of the Court's staunchest liberals. Souter and Kennedy both started off as relatively "Conservative" (and really, that term doesn't perfectly work in the weird world of judges, but it's close enough) only to start drifting, Souter quickly and Kennedy in fits and starts.

Hence we get picks like John Roberts (who seems to be a phenomenol Justice, but whose jurisprudence is not particularly well-known due to his seeming high regard for stare decisis, the doctrine of leaving previous decisions in place rather than over-turning them unless obviously wrong, and maybe not even then) and Samuel Alito, clearly Conservative in a general sense but not an avowed partisan.

Even picks like Roberts and Alito would, I suspect, fail to pass muster in a Democratic-controlled Senate over the next two years, however. The reason? Democrats will hold out for a candidate acceptable to them (and they will not compromise). They will do so with the knowledge that they have a good chance of taking over the Presidency in 2008 and getting one of their own on the bench.

The result? I suspect that if a vacancy is created in the next 2 years, either because of a death or retirement (highly unlikely unless a serious illness was involved), President Bush's only chance to fill it would be through a recess appointment. The atmosphere won't allow for anything else. And then things will get really interesting following the 2008 Presidential election.