Supreme Court Vacancy: Analysis

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Sandra Day O'Connor's empty seat, poses a real conundrum for President Bush and the nation. Conservative nominees differ widely depending on the topic. President Bush has not been, and is not now, an across the board conservative. He has been a social conservative but, his deficit spending, hard line on Enron and other corporate fraudsters and thieves, and heavy federalism tendencies are contrary to what could be termed economic, business, and constructionist conservative ideology.

My bet is on his replacing O'Connor with a social conservative. The conundrum however, is that a social conservative may also lean against federalism and heavily toward states rights, as well as narrower and stricter adherence to literal Constitutional text as opposed to interpretation. Such a choice could work against corporate America, oppose globalization efforts, foster isolationism, and even lead to revocation of Roe V. Wade in favor of states passing their own abortion laws.

Another seat to likely open is Justice Rehnquist's. Both O'Connor and Rehnquist have been pragmatists in their rulings, deciding cases largely on the facts, precedents, and merits of the case, without regard for ideological allegiances or national trends. Replacement of these two pragmatic justices with social conservatives could move the court radically against federalism, subjecting business and corporations far more to state regulations and prosecutions, and away from Constitutional interpretations which foster multi-national corporations. Ironically, such replacements are likely to revoke tort reform, which Bush and the GOP worked so hard to pass to relieve business and professionals from facing steep punitive damages.

The conundrum is simply that conservatives in adjudication and interpretation of the Constitution if consistent, could work to cross purposes of the GOP party platform on a whole host of issues. In addition, conservative justices are very likely to return the Supreme Court's focus to the Separation of Powers focus, which the GOP has blurred and benefited by loosening Constitutional checks and balances. And the converse is also true. If replacement justices are constructionist, adhering to the literal text of the Constitution, socially conservative issues may suffer, as in Roe V. Wade, where abortion as an issue is not contained or even alluded to under the federal Constitution, which would relegate the issue to the states.

The most likely scenario that I can envision, is that Pres. Bush, rather than trying to sift through the intricacies of prognosticating future rulings by potential justices on ideological lines, will litmus test candidates on a couple of key issues and let the rest of the cards fall where they may. Perhaps the best option for Bush choosing nominees optimally for his politically agenda, would be to choose a social conservative for O'Connor's replacement to appease his GOP base for the 2006 election cycle, and Constitutional conservative, or pro-business conservative for Rehnquist's replacement. But, again, the conundrum would be that the two replacements would cancel each other's votes on many issues, since a social conservative is not necessarily a Constitutional conservative, and a Constitutional conservative is not necessarily a pro-business conservative.

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This page contains a single entry by David R. Remer published on July 1, 2005 5:13 PM.

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