gnashing of teeth

There's been a lot of rending of garments and gnashing of teeth recently within the progressive community in regards to the upcoming replacement of Sandra "The Only Reason that Women Still Have Reproductive Rights" Day O'Connor. And rightly so. But I think it's important to keep a number of things in mind.

First, there is no such thing as strict constructionism. The Constitution contains countervailing dictates, either of which could be strictly construed. Do you strictly construct, "Congress shall make no law abridging the freedom of speech" or that Congress can do everything "necessary and proper" to run the country. What is strictly necessary, strictly speaking? Who knows.

The process of making judicial decisions is one of balancing the text of the Constitution with precedent and prevailing cultural mores. Then there is an extra dash thrown in that really gives the dish its flavor ... the judge's own personal ideology. For example, the supposedly states' rights loving Rehnquist Court was responsible for the overturning of the Florida Supreme Court's recount ruling. Why? Because they Republican. Yeah. Good times.

But even knowing party affiliation and personal opinion, it's impossible to know what someone is going to do once they get an irrevocable lifetime appointment to rule with impunity. Just ask President Eisenhower how that whole Earl Warren appointment turned out.

I think that the Democrats are making a mistake in demanding that they be able to ask a prospective nominee what her personal opinions are on issues such as abortion and gay marriage. We can't know a head of time how those preferences are going to translate into rulings, particularly over the course of several decades.

The best that we can hope for is that Bush will mess up and choose someone with a brain and a heart whose rulings may trend conservative but who will not be an outright disaster in the mold of Scalia and Thomas. Oddly enough, Alberto "The Geneva Convention is quaint" Gonzales may be that person and the conservative groups have already started their pr campaign against him.

They've got us over a barrel, though. Will we really be able to fillibuster our way to two new moderate justices? Unlikely ... so I guess it's time to get back to the rending of garments and gnashing of teeth. Oh yeah, and and to preparing to fight hard in the next election cycle because it is from the electoral results that these sorts of outcomes flow ... remember how we said that the real problem with Bush getting elected would be his appointments to the Court?

Well, welcome to now ...