Monday, April 26, 2010

America And Supreme Court Nominations

Quinnipiac conducted a recent poll of how Americans currently view Supreme Court nominees and the issues surrounding them, and it yielded some interesting results. Some are even counter-intuitive. The poll was conducted after Justice John Paul Stevens announced his pending retirement and before President Obama has made any final decision on who the nominee will be.

There has been a great deal of speculation about how Obama will make that decision. Perhaps the poll will help him out. For instance, 53% of the respondents "are very or somewhat confident that the president will make the right decision." I don't know how to square that with his other favorable/unfavorable ratings in the polls from the last few weeks. 42% of the respondents thought the nominee will be "more liberal than they would like," while a mere 8% said the nominee would be "less liberal than they would like." 46% "trust the president's decision," while 43% trust the Senate Republicans. Frankly, I don't trust any of them, but I wasn't in the poll.

60% of the respondents supported Roe v Wade, including 42% of Republicans and, oddly, 39% of self-identified conservatives. The poll failed to ask what percentage of the respondents actually have any idea exactly what Roe v Wade decided. 79% agree with Obama that Citizens United was wrongly decided when it struck corporate and union limitations on campaign contributions. That included 82% of Democrats, 79% of independents, 78% of Republicans and 69% of self-identified conservatives. I can't decide if that result comes from very good public relations by the liberal press, or a simple lack of understanding of the legal reasoning behind the decision, a fine point that even constitutional scholars disagree on.

49% of respondents favor original intent/original words/strict construction judicial philosophy. That figure is up from 40% in 2008. 42% think the court should take "changing times and current realities" into account. That's down from 52% in 2008. Still, 78% don't think "judicial norms" have been the only test, and that political views have wrongfully entered into the court decisions. That percentage includes 82% of Republicans, 72% of Democrats, 80% of independents, 77% of self-identified liberals and 80% of self-identified conservatives. Which sounds to me like nobody is very happy with recent decisions.

It also appears that the Republicans should flex their muscles only if Obama appoints a true extremist to Steven's chair. As with the Citizens United case, there is a 47% agreement that a nominee's views on heated issues like abortion and gay marriage should be part of the vetting process, while 43% said it should not. 48% said that senators who disagree with the nominee's views would be justified in filibustering the nominee, while 41% say that a filibuster would not be justified. It's apparent that Republicans should choose the filibuster battlefield very carefully since an aggressive opposition to the nominee based on one or two contentious issues could look highly political and unfair.

Summing it up, the results of the poll are very hard to reconcile with any clear strategy for the President or the Senate. The best conclusion I can come up with is that since the respondents largely agree that the President will appoint someone about as liberal as Stevens, and don't seem terribly bothered by it, Republicans would be well-advised to vet the nominees very carefully and thoroughly, and vote the nominee up or down. Only in the event that the nominee is, or seriously appears to be, an extreme far-left living constitutionalist who will ignore precedent and regularly thwart the will of the people and their representatives should they pull the nuclear option of the filibuster.

12 comments:

patti said...

we are at a time and place that demands we pay close attention to all that barry does, and that the repubs aren't too worked up because stevens is a lib and he'll most likely be replaced with one, makes me crazy. wake the hell up. stuff like this will follow republicans to the polls as well. we must be vigilant on all fronts; we must wake the hell up.

AndrewPrice said...

The problem is that the court has been politicized. In an ideal world, I would want a court that is entirely immune from politics, that made decisions based strickly on the law itself, i.e. the Constitution, the words of the statute itself, and the legislative history if necessary.

But that's not the world we live in. The left in particular views the court as simply another avenue for getting its policies into place. So I have now come to believe that the right should do the same thing. We need judges who are going to actively roll back liberalism and strike down government excess -- not just judges who follow the Constituion because too much deference to the government has made its way into Constitutional case law.

LawHawkSF said...

Patti: I agree. This president is about as sneaky as any I've ever seen. Several presidents have foolishly appointed "moderates" to the court, only to have them make a surprising far left turn. I'm pretty sure that Obama is looking for nominees who he knows will make that immediate turn to the left.

LawHawkSF said...

Andrew: There have always been a few contentious battles over Supreme Court nominees. But the Democrats turned the process into a political circus, starting with Judge Bork. I tend to agree with you that Republicans have not responded in kind, but with this president in particular, they probably should. I don't want truly political judges, but we do indeed need to roll back the distortions of the Constitution which comprise current jurisprudence.

StanH said...

Bork’em! Make the process as laborious as possible, and by doing so might make Barry moderate slightly?

LawHawkSF said...

StanH: Well, that would certainly be one tactic. The problem right now is that Republicans are still a minority. That means the only way to stop a nominee is the filibuster, and as long as there are Lindsey Graham-types, it would be difficult. Right now, the Borking should be confined to full and perhaps even moderately vicious vetting, then an up or down vote. If I thought a filibuster would have a snowball's chance in hell, I'd be recommending it. If the Republicans really do their homework, they can probably find enough leftist dirt on his nominees to get the public behind convincing Obama to pick someone else.

AndrewPrice said...

Lawhawk, I trace it back to Bork as well, though I trace the Supreme Court's activist role back to the 1960s when they issued a whole series of decisions that had nothing to do with the law and instead deal purely with liberal wish lists.

LawHawkSF said...

Andrew: You're absolutely correct, and I didn't make that entirely clear. The full politicization of the nomination process started with Bork, but the judicial re-writing of the Constitution started with the Warren Court.

Tennessee Jed said...

Hawk - I pretty much weigh in the same as Andrew's first comment. I would love a non-politicized court. That is, of course, a theoretical and may never have been truly possible. I suppose an interpretation of what is within the "main stream" of judicial thought will always be somewhat in the eye of the beholder.

As a result, if the left wants to "bork" conservative candidates, I say the right has to respond in kind. That said, one always has to pick their battles wisely.

LawHawkSF said...

Tennessee: As we've discussed before, the perfect is the enemy of the good. The Supreme Court (and the individual justices) have never been perfect, but as Andrew and I have both said, it wasn't until the Warren Court that the constitution became a tool for social engineering and many of the justices became politicians rather than reasoning judges.

I can't conceive of a candidate that Obama could nominate who would not need vigorous vetting. Whether that should include the risk of a filibuster or not is, as you say, a matter of picking your battles.

Writer X said...

I can't imagine Obama choosing anyone who isn't already an extreme far-left living constitutionalist who would ignore precedent simply because he's shown that he's not interested in either.

Individualist said...

"while a mere 8% said the nominee would be "less liberal than they would like"

I would say a mere 8% may need their meds adjusted.

How long is the wait in the Obamacare line for that.....

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