The Sky Rarely, If Ever, Completely Falls

Well, as Dan said, Chief Justice William H. Rehnquist has died. He was the second longest sitting Supreme Court Justice behind William O. Douglas, a Yakima, Washington man which gives me no small amount of pride. Rehnquist sat on the Court through a lot of major decisions, and though he was pretty consistently conservative, his opinions often indicated a commitment to the law and his legal reasoning that was often frustrating but always worthy of respect, especially in time when some of the justices seemed to contort their reasoning to match their ideology. I'm not saying he was perfect, but if I'm going to have a conservative on the Court I'd pick Rehnquist over most others.

But he is gone now, and people are looking forward. Like I would expect, many on the left are already declaring Doomsday. Ok, first things first, the world is not going to end. I know as well as anyone that a Court that has bad justices is a bad thing and can cause plenty of trouble for people. At the same time, the history of our court system is a history of things moving forward. Sure, at times we move a bit backward, but the trend is always forward. Nobody fears that the new Court will overrule Plessy v. Fergussen (recognizing the constitutionality of Jim Crow) because cognitively we've just moved beyond that sort of reasoning. We're not going back to slavery or any other idea that we would now consider rediculous but which at some point was hotly contested because we've moved forward beyond it. Roe is what, thirty years old? Yes, I know that it's an extremely important issue and I understand why people are afraid of the possibility of it being overturned, but we're still early in our development of this issue. I'm confident that in sixty years we'll think about Roe in the same way that we think about Plessy, as an outdated controversy from an ignorant time.

I don't mean to say that the appointment of bad justices doesn't have bad consequences. Certainly, in the short run there are going to be people injured by bad rulings, probably a sizable group of people, but the world isn't going to end. We're not "fucked" in the way some of the chicken littles of the internet are wont to tell us every time something bad happens. Eleven years is a long time for there to be no Supreme Court seats opening up, and historically the average is two per president (I'm pretty sure that's right). Any radical departure from progress will be righted as the Court roster turns over. Yes, again, I know that in the meantime people will be hurt and this is not much consolation to them, but the proclamations that we're on the edge of the abyss are just overly sensational.

As to the actual cases, Rehnquist dissented in both Roe v. Wade and Planned Parenthood v. Casey (the case that re-affirmed Roe in the early 90s). Certainly, Roberts' nomination should affect the way we think about Rehnquist's replacement, but on its face losing a Roe opponent isn't going to lead to an overturning of Roe. If anything, having two appointments at the same time means there's a good possibility, assuming the Democrats show some spine, that Bush will be forced to moderate his appointments.

I'm also not entirely convinced that Scalia will be put into the Chief chair. For one, thing, it's historically not typical. Usually the Chief seat is filled by new nomination and not promotion from within and Rehnquist's rise to that position was the exception, not the rule. Secondly, to go from Associate Justice to Chief Justice isn't a simple matter of moving chairs, it requires another whole confirmation process, so we'd have three confirmations going on at nearly the same time if Bush wants to elevate Scalia. I'm just not convinced he can afford to do this politically. Bush's approval rating is in the low 40s now, which is ten points behind Clinton's approval at the height of his impeachment, and combined with the failures in Iraq (polls are shifting sharply against him in his handling of the war) and the his newly botched handling of the Katrina fallout I don't think he can afford to look like he's stacking the Court.

I mean, it's one thing to accuse your opponents of requiring a litmus test when you're filling a moderate's seat with a likely conservative that refuses to take any stances on anything up to and including the age old "less filler/tastes great" debate. It's another thing entirely when you're nominating said probable conservative, another conservative, and elevating the most divisive sitting Justice to Chief. Again, this is all incumbant on the Democrats to do something about, but I do have some faith that given a mountain of ammo even the most innept party can make a decent case for seriously questioning the administration. Bush has been getting nothing but failures lately. He needs a win like Tim Allen's career needs a third Toy Story movie and nothing's going to tarnish filling two seats than a confirmation process that shows that your party is beholden to radicals. Like Drew said last night, the Republican party is begining, possibly slowly, to trend back towards the moderates and I'm not convinced that they're going to piss off moderates by obviously trying to stack the Court like we might fear.

"If you ever plan to motor west / Travel my way / Take the highway that's the best"