ConfirmThem

There's no way that having Obama or Clinton in the White House would be better for the judiciary than having a GOP president. If the Senate refuses to confirm qualified SCOTUS nominees, then the President can just let the seats go vacant. Seven SCOTUS justices can decide a case just as well as nine of them.

If Democrats really want to filibuster for 3 years and effectively kill the judicial branch, that will come full circle on them in 2012.

And so what if the Senate is 59-41 Democratic? Clarence Thomas was confirmed under such conditions. More importantly, it can swing back in 2010.

FWIW, I think the next President will be a 1 termer, no matter who it is. But given that Stevens is essentially guaranteed to be gone, I'll take the victory now and see what happens.

Plus, what will happen to the appeals courts? With a Dem senate and a Dem president, they'll create a bunch of new seats. Bush and Clinton got about 30 picks per term.....Obama will get 50.

John Paul Stevens, Ruth Ginsburg, and David Souter all appear ready to retire under the next president. We can reshape the Supreme Court if we win the next election. If we lose, we lose that chance for another generation or more.

My point was that is not possible for us to "win" in 2008 from the point of view of judicial conservatism, given the Senate.

I don't think that the 3 liberal justices are ready to retire:

1: Stevens loves his job, continues to be in good health and most certainly does things his own way. He's seen how unhappy O'Connor has become as a result of stepping down. My guess is he may very well try to stay on through the next full term. My guess is he may very well die in office.

2: Ginsburg is indeed likely to retire during a Democratic president. It's inconceivable to me that she would voluntarily retire under a Republican president.

3: Souter is a mystery. Gossip has it that he dislikes the job and is looking forward to retirement. However, he has passed the point where he would become eligble for a full pension and has not retired (contrary to "Insider's" rumors he would). He may stay or he may go. He is certainly has the age to keep on the court for another decade or two.

The next Republican president may only fill 1 vacancy.

1) I think that a GOP president can get the right kind of conservative through. It may be someone closer to Kennedy than to Scalia, but I doubt it will be much further left.

2) Let's do the math. If even one of the lib's goes and we've got two Kennedys plus the other four, we're in good shape, especially with Roberts and Alito's style.

3) Even if we get NO Scotus nominees, we get a chance to fill a lot of district and CCA appointments in courts that are tettering on the brink (for instance the 4th circuit). And if we have someone smart enough to take (for instance) the best of Webb and Warner's list (or whichever state that applies to in the future) then we'll fill those seats. Not even Leahy can sit on CCA nominations for four years.

4) You are making a poor assumption when you say that we're likely to lose more seats in 2010. I think 2010 will be a GOP year for Senate seats based on the what has to be defended, etc.

Scalia would never retire under a Dem, but he will turn 75 during this next Presidential term. Anything's always possible healthwise.

We have only just now gotten to equilibrium for the first time in ages - 4 Conservatives and 4 Liberals and Kennedy. If a Dem wins in 2008 - even for just one term - it all but guarantees that is the BEST makeup we could see for the next 20 or so years

Well, I think they are ready to retire, under the right circumstances. I do agree that Ginsburg will wait for a Democrat, but I don't think the other two have any concern for the party that nominated them.

John Paul Stevens's view of the Constitution is 180 degrees from today's Republican party. Whether it's executive powers, abortion, or affirmative action, he realizes his successor would be the exact opposite of him. Vanity is a trait of all Justices and I doubt he want's to be reputiated by the next Republican nominee.

David Souter might have been a New Hampshire Republican, but I doubt he has much use for today's party. When the party that nominates him has the slogan, "No more Souters", it's unlikely he's a big fan of the party anymore. With an idol like Brennan, it seems unlikely he would want a Scalia like replacement.

That's just my view though.

Hopefully, aurel's question is simply a bit of overblown conservative rhetoric. I find it unbelievable that any real conservative would suggest a Republican win in 2008 would be detrimental to the continuation of a conservative federal judiciary. To say otherwise implies a real lack of logic. No matter who a new Republican president may be (Giuliani, McCain, Romney or Huckabee), his judicial nominees are bound to be 1001% more conservative than any nominee from an Obama or Clinton. Even with a Dem-controlled senate, some of the conservative judicial nominees (both COA and SCOTUS) of a Republican president in 2009 are bound to be confirmed. And people claim that I have little faith! I think aurel is being much more pessimistic than I am if he really thinks that a Dem should be elected in 2008!

Even if JPS, RBG, & DHS were replaced by Mahoney, Callahan & Ikuta, that's orders of magnitude better than replacing them with Sotomayor, Wood & Kagan.

And as the NYT article on JPS stated somewhat, it will be very hard for the Dems to find a confirmable nominee as liberal as JPS or more liberal than RBG or Souter.

No way around it, 11/08 will be a disaster in the Senate. Lotta birds comin' home to roost; and probably rightfully so. GOP needs a major wakeup call.

The key for McCain or Giuliani will be to hang tough and WORK with McConnell, Hatch, Cornyn when Stevens croaks. Send up one impeccable conservative after another. Don't worry about age, either. JRB, Easterbrook, Cruz, PClement, one right after the other. Let the Kos crowd scream as the 5-3 decisions pile up.

And frankly, Roberts & Alito were on the ground floor of "hollow out" strategy viz. Roe. I think Roberts esp. wants no part of a 5-4 decision overruling it outright. He knows what would likely happen in the following election. Note how he & Alito went nowhere near Thomas' concurrence in Gonzales-Carhart.

Ugly truth, but aside from PBA, parental notification & consent and maybe risk information, abortion restrictions lose nationwide. Battle's been lost, and really has been for awhile now. The Souter nomination killed it. Unreal. Still defies belief. Hell, imagine where we'd be if the Chief hadn't bluffed Sandy out.

But the main reason we can't risk Obama is twofold. He will be under ENORMOUS pressure to nominate someone to the left of Koh, and he'll have a honeymoon period to get away with it. Remember how easily he caved when he thought about voting for Roberts. Jack & Ruthie are fully aware of this. Dem POTUS who's written a book explicitly stating judges should legislate from the bench combined with 55+ Dem senators? C'mon.

I believe that despite turning 137 in March of '09, JPS has gone fully drunk with power and thinks no politician can be trusted to replace him, but I'd be amazed if RBG didn't retire 7/09 under Obama.

Secondly, I make it no better than 75% that AMK & the Big Four all make it to 7/13. Nino will be 77 & Tony nearly so. Thomas will be 65 and if he keeps aging as rapidly as he's appeared to, he'll resemble Thurgood Marshall circa 1990.

Nino ain't exactly in fighting trim either. Tony looks ascetic enough, but his father died suddenly in 1963 at presumably a fairly young age, so who knows about the genetics. Sam fortunately appears to have lost at least 30lbs since his hearings, but then we also have a certain Chief Justice who falls down every now & then.

Contrariwise, I think Nino might well take a long look at retiring under Giuliani, esp. if he thinks it might help the '10 or '12 elections. Kennedy is as gollumy as Stevens, but I could see him talking himself into some dramatic self-sacrifice under a GOPPOTUS, esp. if he were given some primo ambassadorship.

Can't risk it. No way no how. Obama replacing Scalia with a liberal equivalent of Roberts ends the whole game for at least a decade, and even under a best case scenario things would never return to even where they are now.

Keep fightin', John! Atta boy, Rudy! GOGOGO!

I think we still have some Eau du Insider floating around here (and I sniffed more than my share). Stevens has made it abundantly clear he's going nowhere unless Souter tells him he's slipping. Toobin got laughed out of town for his Crybaby Souter anecdotes. It's an echo chamber. Neither of them have a damn thing to do if they retired, plus it's the greatest job in the world.

That said, Stevens isn't stupid, he'll 89 in twelve weeks, and he just watched his older brother rot away in a hospice, plus he had plenty of exposure to the Douglas debacle. I just think he doesn't trust ANY president to replace him. I think he's also gone fatalistic, like WHR did. Past the tipping point.

Ruthie is an entirely different matter, IMO. I'd be speechless if she didn't leap into Obama & his 55 pals' arms during the honeymoon period. She's fully aware of who'd likely get picked to replace her and what that'd mean. She was politically savvy back when W was passed out in an Offcer's Club & Rove was fixing high school elections.

She can't have any illusions about her age or health. Plus, she's got plenty of family & outside interests, and she'd likely get a kick out of all the praise & tributes she'd get for "doing the right thing".

Then again, who knows. Nobody moans more about an easier job than a Justice, but Stewart, White & Burger are really the only ones I'm aware of in modern times to "do it right", but it was a different world back then too.

Setting O'connor aside, Rehnquist gambled the future of the judiciary on a few thousand votes on Ohio.

He was involved in the Nixon administration's vetting process and clearly knows the game as well as Ruthie. Yet he didn't bolt in 2003 under a GOP Senate and a GOP President.

I don't know about Ginsberg. Granted, she is ferociously loyal to her 'gender equality' cause, and probably doesn't have the same desire to wield power that undue burden O'connor did. But Justices have been known to surprise people.

Whatever Stevens is, he appears to have some limited respect for the institution he serves in. I don't think he pulls the Douglas routine.

The problem I see is that Obama won't nominate an equivalent of John Roberts (ie Breyer, who was inititally thought to not have a big enough heart, whatever that means). Clinton could have gone for the throat in 1994, but he didn't. Why? Because he clearly never cared about the feminist agenda. But with Howard Dean pulling Obama's strings, and Dailykos pulling Dean's, we aren't getting anyone close to reasonable.

The liberals overreached with the judiciary in the 60s, and suffered the backlash. There's no danger of that this time around.

From 1993-2000, did a single Democratic Senator vote against any of Clinton's CoA nominees? Excluding Robert Byrd and african americans, anyway.

for all the reasons everyone else has said.

Does anyone think RBG will last another 5 years, medically speaking? Stevens?

Don't write off Romney just yet!

And where do you get off on talking about Thomas aging so rapidly? Grey hair and some added weight. What male doesn't that describe at or before his age?!

I don't have many takers, I see, but I added a PS with some further arguments...

And as the NYT article on JPS stated somewhat, it will be very hard for the Dems to find a confirmable nominee as liberal as JPS or more liberal than RBG or Souter.

Confirmable or not, would it even be possible to find any nominee more liberal than that group? Nan Aron maybe?

I would buy your arguement if it were not for the fact that Stevens is old, Ginsburg is ailing, and Souter wants out of the job. If after 4 years of McCain in the White House, and he has replaced two of the three justices, and he decides due to age not to run for re-election, then I could agree with your arguement.

Having Bill Clinton in the White House for two years did, I agree, did wonderful things for the make up of the Congress (remember 1994?), but it also came with a high cost (Ginsburg and Beyer).

I would even buy your arguement if Stevens or Ginsburg retire tomorrow and Bush gets to put Estrada or Sykes on the court before 2009. But the price is too high (with three justices preparing to step down), to have a Democrat in the White House (especially with a Democratically controlled Senate)!

"PS: Not a lot of people seem to agree with me. Perhaps my point wasn't clear enough. We cannot win every election. That's just a fact we have to deal with. Republicans aren't going to win all presidential elections. Now, my thesis is that, given the inevitable Democratic majority of the Senate, 2008 might not be a bad Presidential election to lose because it leaves open the possibility of a strange comeback in 2012."

No, 1996 was one of those years, as it was readily apparent that there would be no SCOTUS vacancy in the upcoming term.

We are essentially guaranteed 1 vacancy, and possibly 2. If we get 2, I don't mind losing the 2012 election.

Democrats can't change the composition of the Court if they win this year, but they can put it out of reach for another generation. If a Republican (Thompson I hope) can win, we can reshape the Court for twenty years. Considering the Senate makeup, Miguel Estrada and Joy Clement, would drastically alter the Court and, as such, conservatism would reign with six and a half votes (Kennedy being the half vote).

Roberts
Scalia
Kennedy
Thomas
Ginsburg
Breyer
Alito
Etrada
J. Clement

Very conservative, but doable.

What are you smoking that you think Miguel Estrada would be confirmable in the 2009 Senate?!?!

I don't think Democrats would be able to block Estrada from a vote for the Supreme Court. The COA is another thing because no one pays attention to them but the devoted. I don't like identity politics, but I don't see how Democrats could possibly block the first Hispanic pick to the Court. I don't think the media would portray it in a favorable way and I don't think the public at large would either.

There is another reason I disagree.

I have been disgusted at how Democrats during the war with Iraq have almost celebrated the difficulties. They realize that if the war goes bad, it will help their party. Where do their priorities lay: with party or country.

I would not want Hillary or Obama in the White House and then begin thinking 'Oh, I hope there is inflation, recession and another terror attack on the US - that way the GOP can re-capture the WH in 2012 with a large majorty in the Senate.'

The reason why the WH tends to flip back and forth between parties is because the party 'out of office' tends to move toward the center. Think of how the GOP moved toward the left during the 60's and the Democrats moved to the right in the 80's.

look at how the Democrats of this decade have continued to drift over the cliff to the left.

They wouldn't be able to filibuster him, IMO. But that might not be necessary for them.