Tuesday, February 19, 2008

Who Will Name the Next Supreme Court Justice, and Whom Will He Name?

Conservative Republicans are suffering considerable anxiety about Sen. John McCain's likelihood of being Soutered should he have the opportunity to nominate a Supreme Court nominee.

As a judge of character, he hasn't inspired much confidence by welcoming Mark McKinnon, Juan Hernandez, Jerry Perenchio and Janet Murguia into his inner counsels, and it was McCain himself who said last month that "I'll rely on people to judge me by the company that I keep."

It was hard enough for Ronald Reagan and George H.W. Bush to identify reliable conservative judges to nominate to the Supreme Court. Even George W. Bush flirted with an ambiguous nomination, in Harriet Miers. Is McCain motivated to get it right?

He has said nice things about Janice Rogers Brown, a brilliant conservative jurist comparable in intellect to Robert Bork, and perhaps comparable also in her prospects of Senate confirmation. One has to wonder if McCain isn't just mentioning Brown as bait to gather vagrant conservatives back to the fold before the general election, knowing full well that he'll have to back off Brown and submit a more ambiguous nominee.

Ah, for the good old days when a president could send a nominee to the Hill with confidence that the Democrats there would bring it to a vote. They might be rejected, as LBJ and Nixon found out, but the Senators had to stand up and make their case against the nominee, and bring it to a vote promptly.

President Kennedy's only appointment to the Court was Byron White from Ft. Collins, Colorado. White was an All-American football player nicknamed "Whizzer," and a member of Phi Beta Kappa at the Univ. of Colorado, from which he graduated as valedictorian in 1938. He then went to Oxford as a Rhodes scholar (1939-40), and received his law degree at Yale in 1946 after serving in the Navy in World War II.

White served (1946-47) as law clerk for Chief Justice Frederick Vinson before going to Denver to practice corporate law. He supported Kennedy for the presidency in 1960, and was appointed deputy attorney general in 1961. In 1962, Kennedy nominated him to succeed Justice Charles Whittaker on the Supreme Court.

How would Barack Obama's first Supreme Court nomination compare to JFK's? Well, don't get your hopes up. In today's partisan cage-fighting, White would stand no chance of confirmation. He was one of two justices to dissent from the Roe v. Wade (1973) abortion decision, and in Bowers v. Hardwick (1986) he wrote a decision that upheld Georgia's sodomy statutes. And in an Obama presidency, White would have no chance of nomination in the first place. Obama never met an abortion he didn't like, including partial-birth (infanticidal) abortion.

If William Kunstler were still alive and young enough, I think he would be the ideal Obama appointment. Perhaps he'll settle for Lawrence Tribe or Bill Lann Lee, or shore up his credentials with Latinos by nominating Carlos Moreno. Of these, Moreno is the least partisan and least controversial. But here is my prediction: John Edwards.

Edwards would be a reliable vote for the edgy government programs that Obama has hinted at, and his antics might affect the collegial operation of the court such that some older members might elect to retire, further empowering Obama to fill the court with Balkanized, collectivist, pro-abortion, pro-gay Justices. By providing Edwards the venue of the Supreme Court for his class resentment themes, Obama would satisfy Edwards' enormous appetite for the spotlight but remove him as a 2012 primary challenger, thus freeing Obama to make strategic symbolic moves toward the center during his re-election campaign.

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