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Bench Memos

NRO’s home for judicial news and analysis.

Counting to Five



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Bob Novak’s effort to explain the long-term strategy underlying NARAL’s vicious anti-Roberts ad may be correct, but Novak stumbles badly when he asserts that replacing Chief Justice Rehnquist with Michael Luttig, Edith Jones, or Priscilla Owen “would cement a conservative majority.”

Let’s count to five together. For this purpose, I will assume what I think and hope to be true: that Roberts and Luttig/Jones/Owen would be stellar justices. One – Scalia. Two – Thomas. Three – Roberts. Four – Luttig/Jones/Owen. Five — ???

As I have previously explained, Justice Kennedy is the other Justice O’Connor. Indeed, this past year he moved decidedly to her left in major cases. No Court that depends on Kennedy for a fifth vote can be said to have “cement[ed] a conservative majority.”

I do not mean to deny that Kennedy occasionally casts votes that could be classified (in crude political terms) as conservative. But the author of opinions like Roper v. Simmons, Lawrence v. Texas, and Planned Parenthood v. Casey (co-author, more precisely, of the joint opinion in that case) cannot fairly be labeled conservative. The label “moderate conservative” is also inapt–rather like averaging out the highs and lows of a manic depressive and calling him stable.

Realistically, the effort to build a Court that is faithful to the Constitution can be expected to take five to seven years and will require the replacement of Stevens, Kennedy, Souter, Ginsburg, or Breyer. It’s no time now for irrational exuberance.

Lest one feed the scare tactics of the Left, it would also be helpful to make clear that the primary effect of a so-called “conservative majority” would be to leave hotly contested social issues to the political processes for decision, not to entrench a conservative position in the Constitution. No matter what their policy preferences, all Americans who understand what citizenship means should welcome that.



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