January 5, 2005
Clarence Thomas As Chief Justice ::
legal — tagged judges, legal, politics and SCOTUS
5:47 pm
The 109th Congress convenes for the first time today. It’s most likely not a coincidence that yesterday I noticed a lot of speculation of who the next Supreme Court Chief Justice will be. Here’s a rundown of the more interesting legal blog posts on the subject:
- Blue Mass. Group: Dems need to clean up their act on Clarence Thomas
- Election Law, which is skeptical of a Clarence Thomas appointment
- Legal Theory Blog, which is a response to Election Law’s skepticism.
Also see a good response to now-Senate Minority Leader Harry Reid’s description of Clarence Thomas as an “embarrassment” to the Court. The post also provides a good profile of Thomas’ legal theory. The central idea is that Thomas is not a dimwit or even an intellectual lightweight — he is instead a radical legal thinker, whose stances not only threaten the Constitution, but — because of their radicalism — are inconsistent with conservative principles as well.
More broadly than the Clarence Thomas issue, the oddest part of the Democratic obstinance to a prospective Supreme Court appointment is the party’s lack of purpose to their obstinance. What do I mean? Let’s say that the Chief Justice retires, and Bush appoints Clarence Thomas to be the next Chief Justice. Thomas loses his confirmation in the Senate, either because there is not a majority of votes (unlikely) or because of a Senate filibuster. Then President Bush appoints Justice Scalia to be the next Chief Justice, but he either does not accept the appointment, or he loses in the Senate as well. Under the professed goals of the Senate Democrats (to prevent the appointment of judges “out of the legal mainstream”), it seems that they have one won. But then what?
Well, obviously, President Bush will appoint another jurist to the Supreme Court. Do the Democrats filibuster that one as well, or do they let him slide? What if the appointee is more conservative than Scalia or Thomas? Then the Democrats and all liberally-minded people — are possibly in worse shape than they were before. Not only do the Democrats look bad, but the Supreme Court moved further to the right than it may have otherwise if the Democrats had approached the confirmation process with a bit more foresight. (Note also that one of the benefits of their being appointed is that we know their legal philosophies and, with that, their capacities for bad — and good — legal decisions.)
Additionally, Senate Democrats up for reelection in 2006 will go into their campaigns with a strike against them. Their Republican opponents will easily be able to brand them as being obstinate, anti-democratic, and unwilling to take a leadership role. (Basically, they would be able to reprint their campaign playbook from 2004 or, for that matter, 2002). In short, on this issue of judicial appointments, the Democrats should really be thinking more about a long-term strategy.
Finally, of all the suggestions for the next Chief Justice of the Supreme Court, I find SCOTUS Blog’s the most compelling. Specifically, they recently did an in-depth profile of Judge John Roberts, who, though I don’t agree with a lot of his jurisprudence, would make an excellent CJ appointment.
Judge Rakoff and the Death Penalty ::
legal — tagged capital punishment, conlaw and legal
5:30 pm
Both Talk Left and the ACS blog have pointed to this New York Times profile of Judge Jed S. Rakoff, who has gained noteriety for declaring the death penalty fundamentally unconstitutional. His reasoning is the most simple and straightforward I have seen of any judge — he argues quite simply that capital punishment violates due process because a defendant cannot effectively pursue a subsequent claim of innocence if he (or she) is dead.
Judge Rakoff’s reasoning depends on the the possibility of innocent people being executed. Death Penalty proponents may argue that the phenomenon of “innoncence on death row” is a mere theory, and the constitutionality of capital punishment should be determined the actual fallibility of capital punishment. But Judge Rakoff’s research revealed “32 cases of exonerated prisoners who, he concluded, were ‘factually innocent’ — 12 were cleared through DNA testing and 20 through other means.” So the problem of an innocent person being sentenced to death is actually quite real, not just a hypothetical scenario. Even though his opinion was ultimately reversed by the second circuit, I will be interested to see what effect Judge Rakoff’s stance will have on the death penalty debate.
