Sunday, July 03, 2005

There Shall Be Weeping and Gnashing of Teeth (or not)

Both radical religious reactionaries and overzealous liberal activists are claiming the fate of our nation hinges on who President Bush will appoint to replace Supreme Court Justice Sandra Day O'Connor (and, likely soon after, Chief Justice of the Supreme Court William Rehnquist). Should we believe the hype? In a LA Times opinion piece, GWU Law Professor Orin Kerr suggests Bush's appointments likely will not result in the immediate rise nor ruin of progressive nor conservative jurisprudence, but will instead preserve the status quo. Kerr reminds us that a solid liberal bloc of four justices still resides on the court: Stevens, Souter, Ginsburg, and Breyer. Even if a conservative in the mold of Scalia or Thomas, as Bush has promised to appoint, replaces O'Connor, he believes that "Kennedy (for whom I clerked) would remain as a key swing vote." Thus, one need not expect a profound rightward shift in the balance of the court. Offering further relief to moderates and liberals, Kerr notes:
Kennedy often votes with the more liberal justices to form a liberal majority in major cases. He has voted to uphold Roe vs. Wade, and he wrote the opinions that struck down sodomy laws and invalidated the death penalty for juveniles. All these decisions would remain intact.
To read more of Kerr's analysis, including how he thinks Rehnquist's retirement may affect the court (no cause for alarm here either perhaps), click here.

Of course, even though the potential consequences of Bush's Supreme Court nomination(s) may be far less grave than perceived, the confirmation of his nominee(s) will be no less bloody; the sensational comments and overaggressive posturing of groups on both the right and the left will make sure of that. Some conservatives--particularly those akin to Jerry Falwell, James Dobson, and Pat Robertson--insist "true believers" like themselves face a battle of literally biblical proportion. Adding to the fray we have liberals like People For The American Way President Ralph Neas claiming the high court, after Bush makes his appointments, will have the power and the will to roll back civil liberties in America to what they were nearly a century ago. Neas even dares to insinuate that "progressive legislation, like child labor laws," may be overturned! And after this fashion shall the debate continue, with extreme reactions from one side provoking equal but opposite reactions from the other.

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