Sandra Day and the Looming Fog

Thanks to Sandra Day O’Connor’s surprise retirement (though at age 75, it couldn’t have been too surprising), the Senate faces yet another contentious confirmation battle. As was the case with John Bolton, Janice Rogers Brown et al, there is likely to be a lot of overblown histrionics and rhetorical saber-rattling. This time, however, the voice of undue obstruction will probably come from the right.

While Democrats have already thrown in the towel and conceded (quite wisely, I might add) the fact that the next Supreme Court justice will be a conservative, right wing activists are already up in arms about the nomination. Conservatives have all but preemptively blockaded Attorney General Alberto Gonzales, claiming he doesn’t veer right enough on issues like abortion and affirmative action.

This objection underscores the conservative paradox with regard to constitutionality. If the goal of conservatives is to quell judicial activism and uphold the Constitution, they cannot support a candidate with a stated anti-abortion/anti-gay/anti-drug agenda. Since the Constitution is virtually mum on those issues, using the federal judiciary to set policy would be as egregious a form of judicial activism as the Warren court decisions, though conservatives aren’t likely to see it as such.

Furthermore, objecting to a moderate conservative at this stage of the game makes zero sense for practical reasons. As O’Connor was a moderate, replacing her with a moderate conservative wouldn’t ruffle any feathers. Replacing her with a rightwing activist, however, would cause a lengthy confirmation battle and pose problems when Justice Rehnquist finally decides to step down.

Given the recent turmoil in congress, it’s surprising that the Democrats (with the perennial exception of Ted Kennedy) have been the ones to show greater maturity as the nomination process begins. Chuck Schumer has spoken highly of several of the potential nominees and Harry Reid recommended Mel Martinez firsthand. Whether or not this newfound diplomacy holds will be something to keep an eye on for the future.

One name that isn’t being mentioned is Richard Epstein. A Chicago law professor, Epstein has a vision of jurisprudence that would likely result in overturning the recent Raich and Kelo abominations as well as a score of other bad decisions.

Regardless of who gets the nomination (and, more importantly, who gets confirmed), this will likely be a turning point in the history of the court. While O’Connor was a pragmatist in approach, she was guided by federal ideals. The rest of the Rehnquist court, however, was marked by spineless inconsistency (Souter, Kennedy) and judicial activism from the left (Ginsburg, Stevens, Breyer) and right (Scalia). The time is right for a judge of principle to take the bench, provided the senate and the president can agree on what the principle would be.