Supreme Court Vacancies: Who will Bush appoint?

Supreme Court Vacancies: Who will Bush appoint?

by Mariah Wojdacz, December 2009

Now that Justice Sandra Day O'Connor announced she will step down from the High Court and Chief Justice William Rehnquist and Justice John Paul Stevens are both expected to resign before the end of the summer, it appears that President Bush may get to appoint not one, not two, but three Supreme Court justices. Who will he nominate? Will Democrats filibuster? Will Republicans go nuclear? Let the battle for the Courts begin!

All congressional vacations have been cancelled in light of these recent developments, and already both liberals and conservatives in the Senate have declared the compromise over judicial filibusters null and void. Washington is in for a long, hot summer.

At a July 6 press conference, Bush described the kind of candidates he will nominate:"I'll pick people who, one, can do the job, and people who are honest, people who are bright and people who will strictly interpret the Constitution and not use the bench to legislate from." The president also asked senators not to pay attention to various 527 groups who want to influence the confirmation hearings, saying people who are not involved in the process shouldn't have a voice.

Democratic Senators Chuck Schumer and Harry Reid are already calling for Bush to nominate a "moderate," on the grounds that most Americans do not want another conservative like Antonin Scalia. But according to several pre-vacancy polls compiled by David Hill, nearly two-thirds of Americans cannot name a single Supreme Court Justice and a scant 9 percent named Scalia. How concerned should the president be about public opinion, when the public is so uninformed about the current court?

The public's lack of knowledge about the individual justices does not equate to lack of concern regarding Supreme Court rulings or overall philosophy. According to Hill, a nationwide Gallup poll released just before O'Connor resigned asked Americans if they wanted the next Supreme Court vacancy to be filled with a justice who would make the court more liberal, more conservative, or one that would keep it the same. Of 1,006 adults, 41 percent said they wanted the court to become more conservative, while only 30 percent wanted the court to be more liberal. Twenty-four percent said they would want to preserve the current philosophical balance.

Hill also cites a nationwide Rasmussen survey from early June, in which 46 percent of 2000 adults accused the Supreme Court of being too hostile toward religion. Only 23 percent said they felt the court had has been too friendly toward religion.

What do these pre-vacancy polls tell us? If Democrats want the president to nominate someone who will please the majority of Americans, then they should encourage him to nominate a conservative.

During both presidential campaigns, Bush promised that if a vacancy came up, he would nominate a conservative, someone in line with Scalia or Thomas. Justice Scalia is no moderate. He gave a speech earlier this year in which he said there is no such thing as a moderate judge; that judges either stick to the constitution as it was written or they violate it. According to Scalia, there is no in-between: "What is a moderate interpretation of the [Constitution]? Halfway between what it really means and what you'd like it to mean? There is no such thing as a moderate interpretation the text."

Therefore, since Bush considers Scalia his model justice, he must appoint a justice who adheres to an originalist philosophy. Scalia explains this concept as interpreting the Constitution as it was written, not as a document that lives and breaths and changes, which can be molded to mean anything at all.

When Bush says the process should not be influenced by the American public, he seems to forget that the American public put him in the position to nominate a justice in the first place. The Supreme Court became a primary campaign issue, and many voters who cast ballots for Bush did so because of his promise to preserve the integrity of our Supreme Court, thereby preserving our Constitution. Did President Clinton consult senate Republicans when he nominated judges to federal circuit courts? What would his party have said if he had?

Many conservatives worry that Bush and the Republican senators will back down from this fight, and with good reason. Supreme Court nominees are appointed for life. The decisions they hand down potentially affect every citizen. According to conservatives, Democrats and Republicans alike seem to forget that the Republicans won the presidency and both the House and Senate. Now conservatives expect them to stand up and fulfill their campaign promises. Under our American system of representative government, that is exactly what Bush and the Republicans should do.