Bench Memos

Re: Why Hewitt Is Wrong

Another respect in which Hugh Hewitt’s op-ed is mistaken is his assertion that it would take a “miracle of Senate efficiency” to keep Justice O’Connor from casting a vote in the New Hampshire abortion case to be argued in late November. As I have explained, a justice cannot take part in the final disposition of a case unless she is still on the court at the time the opinion is rendered. It is highly unlikely that the New Hampshire case will be decided before spring 2006. Even ordinary Senate efficiency (if you’ll pardon the oxymoron) ought to suffice to have O’Connor’s replacement confirmed and appointed by then. Of course, the case may need to be re-argued, but that’s a trivial cost.

Like Jonathan, I admire Hugh Hewitt, but I’m more than puzzled by his reliance on highly speculative predictions about the electoral consequences of Miers’s withdrawal. When I spoke with him on his radio show two days ago, his predictions were premised on his view that withdrawal was not a possibility and that it would be bad for Senate Republicans to defeat the President’s nominee. Now that withdrawal has happened, I don’t see why nomination and confirmation of a Supreme Court candidate that all Republicans can celebrate wouldn’t provide the best possible scenario both for the Court and for electoral success in 2006 and 2008.

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