WaPo's warped logic on future SCOTUS nominations

The Washington Post warns today that while an Obama presidency would likely keep the USSC “balanced” in the almost-sure event that one or more of the USSC’s liberal justices retire during the next presidential term, a McCain presidency would “shift to a consistently conservative majority” ready to tackle issues important to “the right”:

For much of its term, the Supreme Court muted last year’s noisy dissents, warmed to Chief Justice John G. Roberts Jr.’s vision of narrow, incremental decisions and continued a slow but hardly steady move to the right.

But as justices finished their work last week, two overarching truths about the court remained unchanged: It is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.

A victory by the presumptive Democratic nominee, Barack Obama, would probably mean preserving the uneasy but roughly balanced status quo, since the justices who are considered most likely to retire are liberal. A win for his Republican counterpart, John McCain, could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right.

First, the article just assumes that McCain will nominate reliably conservative justices to the USSC, which I’m not so sure of. He could try to pull what Bush did the first time around with Harriet Miers and ignore the right’s protests that the nominee isn’t the right pick for the USSC. That said, I’ll roll with the WaPo’s assumptions just to show the absurdity of its assumptions about the future balance of the court.

Right now, the court’s new “swing vote” justice is Anthony Kennedy, whereas Sandra Day O Connor was before her retirement. He’s liberal, but on rare occasion will side with the conservative side of the court. Yet the WaPo’s logic suggests that assuming two more liberal justices (probably not Kennedy) retire during the next president’s term, that the court would remain “balanced” if it were liberal Barack Obama nominating the next two justices and implies that the court would not turn into a liberal judicial branch, yet if McCain were doing the nominating that the court would turn into a branch of the Republican party?

Let’s get real here: If Obama were to get elected president and have the opportunity to nominate two justices to fill vacancies on the USSC, does anyone really think he’s going to nominate anyone who doesn’t have solid liberal credentials? Why wouldn’t he? He’d have what will likely be a stronger Democrat majority in the Senate, where justices have to be confirmed, meaning they’d sail through with little to no Democrat opposition, whereas McCain (obviously) would have a tougher time getting through anyone who has even the slightest hint of a conservative lean.

This scare tactic-filled, illogically written piece reads more like something you’d see on the pages of BarackObama.com, and just goes to show that while the WaPo’s editorial page continue to, more often than not, show fair and balanced analyses of current day events, the daily sections of the paper still have a long way to go.

Cross-posted to Right Wing News, where I am helping guestblog for John Hawkins on Sundays.

Anthony (Los Angeles) says:

June 29, 2008 at 2:14 pm

To be honest, I take McCain at his word that he’ll nominate originalist justices. Whether he can get them through the Senate is another thing altogether.

It used to be, until the Bork nomination, that a President was granted his choice of appointments unless there was something seriously wrong with them ethically (Abe Fortas, for example.) Now the Democrats have abandoned that comity to play partisan politics with nominations. Just look at the Hell Clarence Thomas was put through.

The Republicans have stuck to the principle of comity: Justice Ginsburg, perhaps the most liberal justice, sailed through 95-0, I think. Compare that with how Alito and Roberts were treated, both of whom are superb legal scholars.

Should a President McCain nominate Appellate Judge Janice Rogers Brown (Please, Lord! ), does anyone really think she’ll get the same courtesy show Ginsburg?

I didn’t think so.

Leslie says:

June 30, 2008 at 9:51 am

ST avers:

Right now, the court’s new “swing vote” justice is Anthony Kennedy, whereas Sandra Day O Connor was before her retirement. He’s liberal, but on rare occasion will side with the conservative side of the court.

I would have said Kennedy’s a pragmatist, not a liberal. I find it refreshing that he actually approaches things with an open mind and makes his decisions on the facts, not the ideology. I’d like to see more like him.