Good questions.
Thomas might as well not be there, given his contributions (or lack thereof) to the Court. His presence does serve one purpose -- it actually provides a useful reminder of what to avoid in selecting lifetime appointees to the nation's highest court. And Thomas does underscore how politicized the selections have become since Nixon became President (not the approval process, the actual appointments by Presidents).
Prior to Nixon, Dems and Repubs alike tended to choose centrists, and appointees who did not always agree with them, in order to have a balance. For example, Eisenhower selected Warren and Brennan, who were moderates when they were selected and who came to be viewed as liberals (bearing in mind that the US supreme Court has been very conservative historically) and Harlan (clearly a conservative). Kennedy selected Byron White who went on to be anything but a liberal. LBJ selected Thurgood Marshall, but also selected Abe Fortas who is a big-time corporate lawyer and no raving liberal. Each party had liberal nominees and consrevative nominees, but few of the nominees was an ideologue.
Since Nixon, there has been an increased tendency on the part of GOP Presidents to appoint decidedly ideological conservatives to the bench, preferably young ones who will be there a LONG TIME. Scalia, Thomas, Rehnquist (not to mention Bork, was was rejected) are excellent examples of the trend toward more ideological appointments. My guess is that Dubya will appoint highly ideological conservatives to the bench, especially in light of this case (and his sense that anybody who sees it differently than he does is some kind of demon seed judicial activist).
As for the USSC passing the buck until the final bell rings, I think it very possible that this is exactly what they will do -- punt with vague instructions designed to drag this on for at least another week or two, thereby running out the clock, giving Bush his victory (and his partisan friends on the Court their desired outcome) while not requiring them to craft an opinion that lays waste to the doctrine of federalism and federal judicial restraint, which any decision in Bush's favor will inevitably do. But I can truthfully say, after today's oral argument, that it is unclear what they will do. Who knows, maybe they will actually step up and try to make the right to vote something other than a mockery. Unlikely, but possible.
Which is better than I thought going into it.
MST |
