The O’Connor Replacement Issue

1. Compromise — By my count, Reagan had two nominees that turned out not be very conservative at all. Nixon had one who became the king of abortion rights advocates. Ford had ultra-lib John Paul Stevens. Bush had another total lefty with Souter. I think we can stop the compromise and just appoint one who thinks the right way, judicially speaking.

When Clinton appointed the former chief counsel of the ACLU, we didn’t complain much, did we? She sailed on through with nary a remark about extreme leftists.

2. Bill Kristol is CONNECTED — He told us a week ago that O’Connor would be the one retiring. He’s looking pretty potent right about now.

3. The decline of gender politics. Since a bevy of Bush minority and women candidates have been knocked around for ideological reasons, you don’t see anybody talking about how the Pres. must appoint a woman. The Dems are far more concerned they get another Souter instead of a conservative African-American lady. The liberal plantation is alive and well.

4. The EXCEPTION: Being Hispanic still matters a lot because of the explosion that demographic. I predict Judge Gonzales is coming on board.

5. If I had my pick, I’d go with Michael McConnell or Alex Kozinski. Heavy duty intellects both and pleasantly non-left (though Kosinzki is more libertarian if I recall).


22 thoughts on “The O’Connor Replacement Issue

  1. No kidding Bill Kristol is connected. It’s not all that impressive. His father, Irving, was at the American Enterprise Institute in the ’70s with Antonin Scalia. Woo, big surprise a Kristol got the scoop.

    Are you seriously contending that opposing people based on ideology when they are women or minorities is tantamount to oppression? That’s ridiculous and inflammatory and has no basis in rational thought.

  2. What we mean when we talk about the liberal plantation is that women and African-Americans are apparently not permitted to hold views consonant with free markets and transcendent morality. Thus, Clarence Thomas loses his status as a black man and gets called an Uncle Tom by a bunch of white liberals.

  3. This is a load of horse-hockey. Only extremists call Clarence Thomas an Uncle Tom, and they do so because a “Constitution in Exile” fully applied would open the way for overturning civil rights legislation. It’s the same with Janice Rogers Brown (whom I assume is the African-American woman you refer to).

    The “Constitution-in-Exile” has nothing to do with “transcendent morality” or free-market capitalism, and you know it.

  4. On another note, I completely agree with the choice of McConnell. He is an excellent legal scholar with a full appreciation for precedent, restraint, and is not an afficianado of the “Constitution-in-Exile.”

  5. If you and I can agree on McConnell, then by Jove he should be the one!!!

    By the way, you’re going to have to discuss the Constitution in Exile. My three years of law school didn’t cover that one. Are you referring to the concerns about excessive expansion of the Interstate Commerce Clause?

  6. In a nutshell, yes.

    The “Constitution-in-exile” is an extreme “constructivist” judicial activist philosophy wishing for the days of impotent government, child labor, and miscegenation laws (among many, many others). Not because they have problems with children going to school instead of sewing buttons or miscegenation, but because they’d rather have an absolutist stance on government power than a decent world. It should attract you Reform Clubbers, since it is an extreme “free-market,” deregulation stance. Of course, this is an extremely simplistic summation.

    In which case, the recent Senate decision to axe PUHCA should have y’all jumping for joy.

  7. James Elliot writes, “The ‘Constitution-in-exile’ is an extreme ‘constructivist’ judicial activist philosophy wishing for the days of impotent government, child labor, and miscegenation laws (among many, many others).” Obviously none of the regular writer on this site is for anything like that.

    I am in agreement with Volokh’s view that there really is no such movement: In a very good and even-handed analysis of the discussion, Volokh writes, “I don’t see the direct connection between originalism and restoring a constitution in exile. I see the former as a mode of constitutional interpretation, and one that leaves open a reconciliation with stare decisis. The latter apparently would dismiss stare decisis and attempt to reconstruct a very particular constitutional order.” Volokh concludes that there is no actual, active movement to impose such a thing. If there is, they have done a marvelous job of hiding themselves. I believe that you may safely stop worrying about it.

    As to Clarence Thomas, do you have any quote from him explicitly endorsing a restoration of a “Constitution in Exile”? If not, perhaps it would be best simply to refer to him as an Originalist and argue against his actual position?

  8. Mr. Elliott never made the claim that there is such a movement. Please don’t try to cloud the argument. One can support a philosophy without there being an organized “movement” to do so.

    The term was invented by Douglas Ginsberg, by the way.

  9. I see we have a literalist in the house, Mr. Karnick. As you well know, my reference to child labor and miscegenation is directly related to the movement to return to a pre-1920s interpretation of the Commerce Clause, which made such acts as child labor and miscegenation possible. It is an admonition against absolutists legal philosophies.

    We know for a fact that the Founders intended for the Constitution to be a living document, and that not only was an interpetivist judiciary intended, but it was designed as such so that the Constitution could evolve with evolving society while still clinging to certain, timeless rules and values. Both James Madison and his mentor, Thomas Jefferson, believed that future generations should not be bound by the decisions and mores of their forebearers.

    As for the “Constitution in Exile”, you can read Ginsburg for the original ideas, and some interesting takes by Cass Sunstein of UChicago or Jeffrey Rosen at GW. As you probably well know, being a well read and intelligent fellow, “Constitution in Exile” is not a movement per se, but its adherents and sympathizers can be sussed out by evaluating their judicial judgments in light of the principles of Ginsburg and a pre-Herbert Hoover Supreme Court. When you do this, you see that justices such as Scalia, Thomas, Janice Rogers Brown, and so on all advance legal decisions based on these principles to varying degrees. It is not a matter of “originalist” versus “interpetativist.” As Scalia and other “originalists” have demonstrated, they are perfectly willing to throw federalism or constructivism to the winds when it benefits their conservative ideology.

    This is why moderates, even classical conservatives such as O’Connor, are so valuable.

  10. That should read “anti-miscegenation laws” not “miscegenation.” Darn my hurrying brain and its desire to scribble its thoughts!

  11. This is a very interesting discussion. I think that you would be wrong to assume that we Reform Clubbers have any interest in bringing in the kind of constitution to which you refer.

    A common complaint among the sort of people with whom I associate is that the Supreme Court wrongly found penumbras and emanations that created an absolute right of contract in the late 19th and early 20th century (see Lochner v. New York) and then (after much bitching from New Deal types and a later reversal) went on to create the same sort of absolute right to an abortion again based on emanations and penumbras. That ain’t about a constitution in exile. It’s about a “party of five” imposing their policy preferences when they are no more competent to form policy than a legislature.

  12. Mr. Elliott, I have indeed read Ginsburg’s and Sunstein’s articles, and I just read them again. Ihe Constitution in Exile movement appears to me to be a giant chimera. Nobody of any substance whatever is advocating anything like it, and Ginsburg certainly never did so. Nor do Scalia, Thomas, etc. What Hunter says in the immediately previous comment is highly apposite and applies to those jurists as well, in my view.

  13. Politically, I think that you put forward Janice Rogers Brown. Let the Liberals attack a black woman on a bigger screen than the Circuit Court nomination.

    You save Gonzales to replace a dyed-in-the-wool liberal like Stevens.

  14. “Politically, I think that you put forward Janice Rogers Brown. Let the Liberals attack a black woman on a bigger screen than the Circuit Court nomination.”

    I very much doubt the administration would want to call that kind of attention to her, despite their bluster her record is far from impressive.

    Then again they somehow got Thomas on the bench- I’ll never understand that one, shouldn’t a person have to actually be a judge for some time before being made a high judge?

  15. The answer to that last question is no. We’ve had other justices who never served as judges. The most prominent was liberal favorite Earl Warren. He was governor of California before he became the chief justice of the court.

    Warren was famous for deciding cases on a policy basis. He told his clerks how the decision should come out and then told them to find a legal justification for it.

  16. So Hunter, since this is a “should” argument, wouldn’t you say the answer, based on the evidence you just provided, would be “yes”?

  17. “Warren was famous for deciding cases on a policy basis. He told his clerks how the decision should come out and then told them to find a legal justification for it.”

    Wouldn’t that support my point that maybe a person should actually be a judge for a while before being appointed to the highest Judge position?

  18. That one sort of does, Tlaloc, though it won’t win you any liberal buddies at cocktail parties to say so. Good old Earl Warren is big stuff with your crowd.

  19. You’re an anarchist who strangely sides with socialists who wish to forcibly confiscate funds and property from those over whom they rule. That doesn’t fit anarchism too well, does it?

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