Outside Counsel

I guess judicial appointments aren't really the sort of hot-button issue with most people as they are with me, or with other lawyers. If they were, Bush/Gore would never have been a close call. I still have a hard time figuring out how anyone could have believed that there was little that distinguished the two of them, but that's what the polls said. If judicial appointments were higher on the list of issues for the majority of people certainly they would have realized that this was something where the two men were sharply at odds, wouldn't you think?

Now comes the news that Chief Justice Rehnquist is sick. Are there three scarier words in the language than "Chief Justice Scalia"? I wonder if this will bring the question to the front of the pack? Of course, it is impossible to know what the effect of that would be-- I suspect that for those for whom reproductive choice-- pro or con-- is an important issue, being motivated to vote goes without saying. The people who base their vote on this issue alone, seem to vote in every election, so perhaps it amounts to a wash. Dahlia Lithwick thinks that it isn't even a wash: since Bush would replace the Chief with a conservative, his re-election would have no effect; and Kerry can't really campaign on the proposition that he'll replace Rehnquist with a more moderate justice because this would appear to be advocating judicial activism. This begs the question, I think: it isn't about one justice, it is about the Court as a whole, and the potential number of vacancies. Beyond that, of course, is the fact that, on reproductive rights at least, judicial conservatism and stare decisis would seem to mean that even Scalia (and Scalia's other vote) would be obliged to respect the law as it stands. Of course we know that's not likely-- if Bush v. Gore stands for any proposition, it stands for the proposition that when the stakes are high enough everyone's jurisprudence is outcome driven.

I wonder about the fact that none of the Supremes stepped down over the last four years. The two that were widely thought to be likely to after Bush v. Gore was decided were Rehnquist, (old, long history of health problems) and O'Connor (also old, also has had health issues, and was thought to be tired of the contentious tone in the Court). Do you think that they all, or each, decided to stay on until there was a legitimate election?