Bench Memos

NRO’s home for judicial news and analysis.

What Won’t Happen Here


I’m kind of glad that the editors of NRO didn’t ask me to participate in their symposium on the Stevens vacancy because the questions addressed to the participants–whom will the president nominate to succeed Justice Stevens, and what will be the political fallout on and off the bench?–are impossible for me to answer.  I am aware of the “short list” of possible nominees, but I wouldn’t venture to handicap what the president will do, and I wouldn’t be surprised if I were . . . surprised.  I agree that there are opportunities for Republicans as the midterm elections approach, and pitfalls for the president and Senate Democrats in the near term–but I also see what Rick Garnett notes, a durable victory to be gained by the left merely in the ability to place a young successor in Stevens’ seat, even if there is little or no change in the Court’s trajectory.

At the risk of sounding cynical, what I’ll do here instead is list a few things that I’m confident won’t happen.

1.  The president and his advisers will not send up a nominee who could actually be defeated in an up-or-down vote in the current Senate, nor someone so insufficiently vetted that some subsequent discovery or dissatisfaction will cause his or her withdrawal.  In short, no Harriet Miers out of this White House.

2.  The Senate Republicans will mount no serious effort at filibustering the nomination.  And, of course, they shouldn’t.  I doubt they will even talk about it to any extent that requires our attention.  The only justification for senatorial sand in the gears would be an unseemly Democratic rush to the final confirmation vote without sufficient time for debate.  Democrats will want a vote sooner rather than later, but they will not act so hastily as to give Republicans much purchase in complaining about the timetable.

3.  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.”  The prestige press will proclaim the nominee a “moderate” and will get an assist from lefties who profess, sincerely or not, to be disappointed (see the preview of this argument already made by Ruth Marcus in today’s Washington Post, who predicts on the basis of nothing much at all that Stevens will be replaced with someone more “conservative”).

4.  No Republican senator will express an altogether consistent view in opposition to the large role the Supreme Court has arrogated to itself in our constitutional order in the last century and a quarter.  It hasn’t happened yet, so I don’t expect to be pleasantly surprised on this score.

In sum, this set-piece battle, while highly important to both parties, to the future of our Constitution, and to the fate of justice itself (especially justice to the unborn, to the family, and to people of faith–all victims of Justice Stevens’ jurisprudence), is bound for the most part to eventuate in the maintenance of a grim status quo.  This is not a reason to withdraw from girding oneself for combat, and resolving to fight for the right with the best arguments available to us.  But I think it is a realistic assessment of what lies ahead.


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