February 1, 2005

Law, Soc professors analyze the future of the Supreme Court

Students with plans to take the Supreme Court Justices out to dinner and the movies should remember to get the senior citizen discount. Every current justice, from Chief Justice Rehnquist, age 80, to Justice Clarence Thomas, the youngest at 56 years, would qualify for a senior discount.

Discussing these eminent elders last Friday, January 28 were three University experts in American politics, who spoke to students over soda and pizza slices. John Mark Hansen, dean of the Social Sciences Division, Gerald Rosenberg, associate professor of Political Science and Lecturer in the Law School, and Geoffrey R. Stone, noted Law School professor gathered for a panel entitled, "The Bush Presidency and the Future of the Supreme Court," sponsored by the College chapter of the American Civil Liberties Union.

Rosenberg began the panel, saying that when it comes to the Supreme Court, most Americans "don't know much and they care less." He focused on three aspects that politicians consider when searching for judicial candidates: how they'll influence the law, the reward they represent to constituent groups, and the possibility of removing political competition, like Eisenhower did when he nominated former California governor Earl Warren.

Nominations are often partisan decisions. Presidents "pick people traditionally who have been active in their party," said Rosenberg, explaining that 97 percent of all appointees have been of the same party as the President. He made clear that nominees must be palatable to both sides in Congress and the American public, since a fight over the appointment takes time and expends political capital.

Previous appointments to the Court have been individuals with political experience, like Warren, who "was not burdened by any judicial experience" and Byron White, who happened to befriend John F. Kennedy as young man, Rosenberg said. Rosenberg pointed out that there has been a recent trend to appoint federal judges to the Supreme Court, like current justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, former University law professor Antonin Scalia, David Souter, and Chicago alumnus John Paul Stevens.

Rosenberg also discussed the position of Chief Justice, speaking about rumors of elevating Scalia or Thomas to the position. "Historically, only three associate justices have been elevated." He also suggested that putting an associate justice as head of the Court creates rivalry.

Hansen focused on the Senate politics of a judicial nomination. "The process of nomination is a sequential process," he said.

Hansen portrayed the nomination process as one that involves much strategy because the people that initiate the process "are going to anticipate the actions of the later actors." He explained that a president first decides if the likely outcome of his nomination is worth the effort that goes into attempting to appoint a new justice.

With 55 Republicans, 44 Democrats, and one independent in the Senate today, Hansen made clear that Bush has the numbers needed to confirm his nominations. "The Democrats can get the votes of the four most unreliable Republicans and still not get the majority," Hansen said.

Hansen explained that the politics surrounding the nomination process will depend upon whose vacancy is being filled. An appointment to replace the conservative Rehnquist would not change the current 5-4 balance of the Court, but the replacement of Ginsburg or O'Connor almost certainly would, Hansen said.

Stone focused on the 5-4 voting pattern of the justices, and how the Court might change with a Bush appointment. He characterized it as already "very conservative," saying "no justice on the current Supreme Court qualifies as a liberal."

Stone talked about the images of justices as conservative and liberal. "The caricature put forth by Republicans is that they want strict constructionists and the Democrats want liberals," he said.

Stone argued conservatives are just as activist as liberals on many issues, including abortion, affirmative action, campaign finance reform, religion, the war on terror, and gay rights. He said he believes that a Bush appointment could shift the balance of the Court and radically change the way these issues are currently dealt with in the Courts.

After their formal remarks, the three took questions from the audience. One student asked about rumors of Republican efforts to do away with the filibuster, which could smooth over the appointment process to the Supreme Court. Hansen, who called such a threat a "political tactic," said it was unlikely either party would agree to do away with the filibuster.

Another student asked about the Patriot Act. Stone said the legislation raises serious First and Fourth Amendment issues. "The President has the authority to arrest an American citizen on American soil, incommunicado, by designation of enemy combatant," he said. "I don't throw terms like ‘Gestapo-like tactic' around lightly."

The panel concluded as Stone discussed possible changes to the Court structure, and who might be nominated to fill vacancies. "Nine is an appropriate size for the Court," said Stone, who said it is not likely to be expanded.

He said the next Supreme Court justice might very well be a political unknown. "The less of a record you have, the less there is to attack," Stone said. "Souter, Thomas, O'Connor—a nobody-imagined."