I personally would like to see another Sandra Day O'Connor. For nearly 20 years she was arguably the most powerful person in the country, and nearly every controversial decision came down to her vote.

Kennedy is cool, but he used to fall much more squarely in the conservative camp (a notable exception being the Planned Parenthood case). When O'Connor left, it was then that he took his place as the pivotal vote. I don't know if it was a conscious choice, or if it was just the way the cards fell, but his philosophy took a drastic turn when O'Connor left.

I totally agree with your point though.

A very good post, Bird. We as a society seem to have forgotten the purpose of the Supreme Court and how it should operate. The idea of electing a president based on how he will influence the court is to miss the point entirely. It is a shame that the majority of the citizenry have willfully become ignorant of how the government is to work and the history of civil affairs let alone history itself.

I'm going to admit something here - I'm confused.

"The idea of electing a president based on how he will influence the court is to miss the point entirely."

I disagree. The power to nominate members of the judiciary is extremely important. I am not sure what point I'm missing -

Quoting Andrew: "For nearly 20 years [Sandra Day O'Conner] was arguably the most powerful person in the country"

I don't know if that's the case, but if it is, we darn sure better elect a President who will select good judges. They are extremely powerful and they shape our country's future.

I also think there is such a thing as a good judge versus a bad judge. I would agree that a bad judge "kowtows" to a political party. But I think that's somewhat beside the point.

A good judge doesn't find hidden "penumbras and emanations" in the constitution. He or she judges the law based on how it adheres to the constitution, whether he or she approves of said law or not. Of course, this goes both ways (conservative and liberal).

A really good judge also is smart enough to know when a law falls outside the clear mandates of the constitution and lets the states decide.

For example, I don't know how I feel about the child rape case (other than complete disgust at the crime) but that's a good example to me where they should just let the states set their own law.

I want a judge who doesn't let his or her feelings interfere with a clear-eyed interpretation of what the Constitution actually says.

That's the kind of judge I want, and so I'm going to look at the judicial philosophies of the presidential candidates carefully. It's extremely important.

The power to nominate members of the judiciary is extremely important.

I wish it was an issue candidates were forced to talk about more, but it's rarely an issue brought up at debates. It really is one of the most lasting legacies a President can leave.

For example, I don't know how I feel about the child rape case (other than complete disgust at the crime) but that's a good example to me where they should just let the states set their own law.

I want a judge who doesn't let his or her feelings interfere with a clear-eyed interpretation of what the Constitution actually says.

Part of the problem is that the Constitution is very vague, often intentionally. The Eighth Amendment protects citizens against "cruel and unusual" punishment, but it doesn't specify what that actually entails. Maybe they made the right decision, maybe they didn't, but it isn't clear cut one way or the other (I know you didn't say that). I do, however think that the Court has a right to set limits on what States can do to prisoners, and it is one written clearly into the Constitution (4th, 5th, 6th, 8th, 14th Amendments).

Glad you wrote this post in the sense that I've been thinking about how important the Supreme Court is too. Great minds think alike....well, mostly exccept that I do think idealogy matters. I hear what you are saying "in theory", having someone that does what they think is right regardless of the political consequences can be a good thing, as long as they are right. :)

I think they were wrong on at least two of these recent landmark cases.

We seem to have two kinds of jurists now a days - the constructionists and those who believe that the constitution is a "living document". It just so happens that most conservatives seem to be "constructionists" and most liberals seem to be "revisionists". So I don't care whether a justice is a republican or democrat, near as much as I want them to be a constructionist.

The next president is really important in my opinion, for this reason most. Also, I've noticed that democratic presidents appoint revisionists 100% of the time, whereas republican presidents apoint constructionists only 50% at the time. Reagan and Bush I both appointed at least one "conservative" and one "liberal". It seems like Bush II got it right 100%, this time.

And whoever said it, (Andrew?) is exactly right. The candidates ought to be talking about their judicial philosophy in picking supreme court judges. (This is why I wish Fred Thompson were our nominee. Drat. That guy knows his constitution, and his federalism. I'm just hoping now that President McCain will appoint Fred to lead his Supreme Court Justice Selection Committee.)

Well, it probably mattered more in the primaries. At this point, it won't matter as much because now we're down to major idealogical differences. Nuance doesn't matter much at this stage.

Democrats would destroy any nominee that even sort of questioned Roe v. Wade. Republicans try to act like they are above such a "litmus test".

Why is it OK for the dem's to have litmus tests, but not Repub's? I smell double standard.

And why is it that republicans confirm judicial nominees of the opposing party based on the qualifications of the nominee, but Democrats try to torpedoe nominees of the opposing party based on idealogy?

And we let them get away with it!!!!

Thanks again for the post Bird. I needed some ranting space.

It should be noted that John McCain is largely responsible for getting both Roberts and Alito confirmed by the Senate with his bipartisan "Gang of 14" who refused to filibuster any nominee as long as they were clearly qualified.

The only candidate I think was "torpedoed" in the last 20 years or so (besides Harriet Miers) was Clarence Thomas for alleged sexual harassment. His hearings were so brutal that he basically wants nothing to do with Congress and very little to do with the media.

Clinton's nomination process was an absolute fiasco. He couldn't make up his mind, his potential nominees couldn't make up their mind, and he wasn't particularly satisfied with either of his eventual appointees (Breyer and Ginsberg). Democrats have a tendency to make things a lot harder than they have to be sometimes (just look at the three-ringed circus that was the primary).

I don't know where I stand on the Constitution, whether it is "living" or whether it was written to be interpreted the same in all times. I think the document is absolutely brilliant, but I do struggle with the terms. Brown v. the Board be considered "activist" or even "revisionists", since in the Constitution, the States are given power over education. The Constitution, as it was written, does not prevent racial or sex-based discrimination. Those battles were won in the courts.

So yeah, it's a tricky subject.

What I mean is that somewhere along the line, and here I'm going to show my ignorance, I'm guessing after President Johnson. The appointment of justices became more of a partisan exercise instead of an exercise in upholding and protecting the constitution with the most qualified judges. At this point it is too late to go back to finding qualified judges that are beholden to the people and the upholding and protection of the constitution. I think this is a HUGE fundamental shift.
Now we must have a well balanced duality so that protection of the constitution will continue without the law running wildly one way or the other.
I hope this clears up my position.

Andrew, do you remember where the word "Borked" came from?

Bif, instead of only in the last few presidents, I suggest the candidate's probable choice of a Supreme became important in the mid 1800's. One may date the idea of Supremes legislating law to then.

We certainly would not wish a math prof that operated that way, nor the doctor about to perform surgery on us.

Ideology, schedology, Bird. What I want to know is whether a candidate for the Supremes believes in rule by law or rule by fiat, by what the law says or by what they wish it said.

"Andrew, do you remember where the word "Borked" came from?"

Not sure if this gives you any perspective on who you're arguing with, Roy, but Andrew wasn't even born yet at that time. He's just one of the most knowledgeable 18 year olds you'll ever meet.

Could you turn down the heat just a bit?

Bif, instead of only in the last few presidents, I suggest the candidate's probable choice of a Supreme became important in the mid 1800's. One may date the idea of Supremes legislating law to then.

The "idea of Supremes legislating law" goes back a lot further than that. John Marshall's tenure as chief justice -- beginning in 1801 -- gave the Federalists a great (though temporary) advantage in shaping the new republic. (Marshall's key decisions were highly controversial.) It was far from obvious, when Marshall took his post, that the Supreme Court would be able to rule statutes (including state laws) unconstitutional.

That function gives the Supreme Court enormous power -- and provides a powerful check both on the other two branches of federal government and on the states. In my opinion, it does not count as "legislating," any more than the president's veto does, but in any case, I'd say it is necessary if the constitution is supposed to mean anything as our supreme law. Otherwise, Congress and the President would simply be able to say the Constitution means what they want it to mean -- and then the Constitution would be really politicized.

Sorry -- that first paragraph is a quotation. My choice of italics tags didn't work.

Actually, the problem with Kennedy is precisely that he acts too much like an elected official, letting the politics matter far too much in his decisions; as such, his views aren't "iconoclastic," merely inconsistent.

What I want is justices who are as apolitical as possible, deciding cases on the basis of the law and the Constitution, regardless of whether the results are "liberal" or "conservative"; I want justices who will tilt the balance of power back away from the Court to the Congress. In that regard, I think the likes of Roberts and Alito are pretty good models.

Andrew, do you remember where the word "Borked" came from?

Yeah, Robert Bork in 1987. 21 years ago. My window was 20 years. Thanks though.

Bill said:
Could you turn down the heat just a bit?

Sure. Tho I think Andrew does ok in the kitchen. Check out the flame height a few comments below.

Jonathan said:
I'd say it (Supremes veto power over exec and legis branches via apply Marbury) is necessary if the constitution is supposed to mean anything as our supreme law. Otherwise, Congress and the President would simply be able to say the Constitution means what they want it to mean -- and then the Constitution would be really politicized.

Problem is that result becomes that law means what they (restricted to 5 with tenure) want it to mean rather than what they (= 1 whom legis regularly overrules and has at most 4 yrs if people not happy, or = 500 plus who have to pretty good agreement in order to get majority not to mention what it takes to get veto proof majority). Which "they system" do you mathematicians think is more likely to produce radical change (read as 'something other than checks and balances')? How about you sociologists?

Andrew, I read you as suggesting picking on Supreme nominees happened equally regardless of their persuasion. You cited Miers and Thomas as both being "torpedoed". I agree with your evalution of what happened to Thomas: brutal. And having nothing to do with his legal expertise. Not so even remotely with Miers.

IIRC Roberts and Alito faced some pretty tough sledding. Wasn't Roberts nearly borked?

In short, I'm suggesting history shows that Shrode (in 5) provides a better summary of how the political parties have treated Supreme nominees.