Wednesday, June 01, 2005

Rehnquist's Gambit

One wonders just what is going through the mind of Chief Justice William Rehnquist. He has hung on for quite some time despite significantly poor health as a result of thyroid cancer. But the end of June, when the Court goes into recess until the first Monday in October, may provide us with the future roadmap for the Court.

Rehnquist has had ample reason to hold on. The filibuster in the Senate lasting for over five years has been a prime concern. While the Democrats in the Senate have allowed a number of lower court nominees to pass through, they will not ever be so kind to any originalist appointee to the Supreme Court--irrespective of professional and moral fitness--because Planned Parenthood, NARAL, NOW, and the like will never support such a nominee. And Rehnquist knows that his retirement will likely involve two hearings: one to promote an associate justice to chief and another to appoint a new associate. And he knows that if Bush chooses to promote a justice, he will choose either Clarence Thomas or more likely Antonin Scalia. And the Senate Democrats hate both of them.

The rhetoric is as predictable as the sunrise: Bush has signaled, by appointing Thomas/Scalia to the Chief Justice position, that he intends to further divide America, promote extremism in the courts, overturn Roe v. Wade, take away the rights of minorities, force gays back into the closet, and kill a bunch of bunny rabbits. And they will say the same thing for a new associate, and rabidly so if that person is a minority.

Rehnquist knows that such things cannot be prevented with the Democrats behaving as they are, but he also knows that the Supreme Court can likely not conduct business with an even number of justices given that many decisions are 5-4 splits.

But time is a luxury in short supply. Indications are, and given the aggressive nature of his cancer treatment, that his condition is not good. So now would be the time to act.

Despite the "agreement" reached with Republicans the Democrats reserve the right to filibuster any nominee in "extraordinary circumstances". That highly subjective standard will most certainly be triggered by a Supreme Court nominee. Any change from Rehnquist will likely leave the court unchanged, or perhaps even slightly more liberal. Rehnquist is a predictable conservative/originalist, and the tendency of judges is to move from originalist to activist, conservative to liberal. Justice Stevens, appointed by Gerald Ford, technically a Republican, is one of the most liberal on the court. The same with David Souter. An appointee of the elder George Bush, he was fairly no-nonsense when appointed to the point that the left feared he would be another Bork, but has become a reliable vote for the left. And Anthony Kennedy, appointed by Reagan after Bork failed and another nominee was withdrawn, seems to be comfortably slipping into the realm of the activist, as most recently announced by his opinion in the Roper case where he pulled on various extra-legal sources to overturn the will of the various states. And then there's Harry Blackmun. Appointed by Richard Nixon, and with less than three years on the Supreme Court under his belt, wrote the infamous Roe v. Wade. So the right appointee is everything, and the safest thing is to is to do the most difficult thing by appointing a staunch originalist. Sparks will fly in the Senate, of course.

But perhaps now is as good a time as any, as we can kill two birds with one stone. By my reckoning, the Dems are winning no points with this filibuster, except with their extremist special interest constituents, specifically the abortion lobby. And obstruction needs to be accompanied by a very clear explanation to the American people. Because any party can maintain any filibuster for a very easily understandable and good reason. But that is not the case here.

The Democrats are obstructing because they dislike the political views of particular nominees. This should never be a consideration, but it is becoming clearer to the average American that the left and their Democrat cadres in the Senate are relying on courts to pass their anti-American, anti-family, and anti-market agenda since it could never pass Congress. Which is an interesting dilemma. Democrat senators favor someone else doing their job (lawmaking) because they disagree with the will of the very people who elected them. The people's Congressional majority would never dream of letting such leftist silliness become law, so they willingly rely upon a branch of government without the power to do so. So to a degree, this is advocating an overthrow of government by violation of the separation of powers, but I digress.

And a Supreme Court filibuster would most certainly clarify the issue for many Americans. But if that does happen, and we go into the fall of 2006 with Republicans and Democrats locking horns over this nominee, the Democrats will likely get every NARAL vote available. But they may find themselves on the morning after the election trying to come to terms with numbers in the low forties, or in the event of a real public outrage, high thirties.

But it's time for Rehnquist to make his decision. Which will be the shot heard 'round the world.

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