ConfirmThem

My guess is that they were just not ready to drop the hammer at this point because if they did, it would make it that much harder for Bush or another Republican president to appoint another anti-Roe justice.

One nation, in the courtrooms, with litigiousness and judicial activism for all.

I will bet you that Roberts and Alito did not join that concurrence so as to not spook Kennedy. Scalia and Thomas were already on record. If they had joined the concurrence, it might have scared Kennedy to be siding with 4 who would so dramatically change abortion jurisprudence.

In any event, I'd bet good money that Roberts and Alito agree with the concurrence but for one reason or another decided not to tip their hands at this point.

One nation, in the courtrooms, with litigiousness and judicial activism for all.

"My guess is that they were just not ready to drop the hammer at this point because if they did, it would make it that much harder for Bush or another Republican president to appoint another anti-Roe justice."

Yep.

[Aurel: This is reprinted from my post to an earlier thread. The comment you referred to in your PPS about Alito, "he does not directly overrule. Through indirection he eviscerates" was made by professor Neil Kinkopf of Georgia State University College of Law. It appeared in an Associated Press article by Donna Cassata ("Alito Poised to Join Supreme Court") on January 14, 2006.]

I recall a very perceptive comment that a law professor made in 2005 about Alito's jurisprudence: "He does not directly overrule. Through indirection he eviscerates." This case shows a subtle approach by Alito and Roberts (and Kennedy?) that will gut Roe without assaulting it directly and incurring the possibly dire political consequences of doing so. Hopefully, the shell can be discarded later since it is an abomination of unrestrained judicial activism.

Ironically, Casey (which itself gutted Roe, as Scalia pointed out so ably in his dissent) can itself be used in the near future to further weaken Roe. Since the "undue burden" standard is so legally unmoored and flexible, it can be everything and nothing. Hence a conservative majority can rule in case after case that virtually no procedure constitutes an "undue burden."

At the end of the day, however, Scalia was right: Casey must be overruled. We shall see what Roberts and Alito do then.

doesn't surprise me. As I understand it, no one was arguing in these cases that Roe or Casey should be overturned. Scalia and Thomas are on record stating that both cases have no constitutional foundation, so they were obliged to say so again or risk being accused of changing their positions.

Roberts and Alito are both from the "judicial humility" camp and will always avoid making any statements beyond what is necessary for the decision.

If the next SC justice is a conservative, assuming he or she replaces one of the known liberals, possibly tilting the scales to overruling Roe, there will be a bloodbath the likes of which we haven't even seen yet. Roberts and Alito "tipping their hands" would have no effect there. To the liberal, they are already in the overturn camp.

Any new justice would have to swear in blood that they would uphold Roe and all forms of abortion before the liberals would allow a vote. You could guarantee that every trick in the playbook would be used, including Borking, refusing to vote out of committee, filibustering, and anything else.

I think it's pretty clear that all consciences would be checked at the door, and there's no way another conservative justice could get confirmed with this Senate. It might have been tough prior to the 2006 elections, but no chance now.

I just want to tell Drgrishka1 what a good job he doing over at Dailykos schooling the libs over there on the Constitution. I encourage you all to check it and post as well. There are over 500 posts already on their PBA thread.

Although it may be that a nominee who has previously spoken out or written against abortion or Roe may not be confirmable at the present time, that does not mean that no conservative can currently get confirmed. A conservative with no record on abortion but a strong record of judicially restrained opinions or articles under his belt may indeed be confirmable if at the same time he has excellent academic/professional credentials and be either a female or minority. Needless to say, the White House needs to be VERY careful in its choice of a third SCOTUS nominee if that possibility arises - no flamethrowers or movement conservatives need apply.

She thinks Kennedy's gone squishy on Roe and Casey:

at page 19 of her dissent:

"The Court's hostility to the right Roe and Casey secured is not concealed."

and at page 20:

"And, most troubling, Casey's principles, confirming the continuing vitality of "the essential holding of Roe," are merely "assumed" for the moment, rather than "retained" or "reaffirmed"...

And suddenly she thinks the Court's abortion decisions should be rational:

page 24: "In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational."

Yeah, like the connection between Roe and the Constitution is rational, huh Ruthie?

though it might be a 51-49 type nailbiter.

http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1176887054027

http://www.pfaw.org/pfaw/general/default.aspx?oid=23905

"The replacement of moderate Justice Sandra Day O'Connor with ultraconservative Justice Samuel Alito has brought the Court to the brink of judicial disaster."

I don't think Martha-Ann Alito will be spending a whole lot of time with a man who accuses her husband of wrecking the federal judiciary.

Neas: "Today’s decision will energize a crucial public conversation with presidential candidates about the importance of future Supreme Court justices.” (Bobo's link)

Hmm, let's see what "today's decision" was... the Court's conservatives upheld a politically popular law that even lots of Dems voted for. The Court's libs wanted to strike it down. Neas must realize that a "public conversation" about future SCOTUS nominees in the context of the PBA ban will favor the Republican candidate. There's only one conclusion, and it's the title of this post. Welcome to the GOP, Mr. Neas!

Correct me if I'm wrong, but wouldn't Roberts and Alito both need to recuse themselves if they voiced an opinion to overturn Casey without hearing an argument?

Scalia and Thomas can do it because they dissented from the original position.

"I think it's pretty clear that all consciences would be checked at the door, and there's no way another conservative justice could get confirmed with this Senate. It might have been tough prior to the 2006 elections, but no chance now."

John Roberts would have gottent through this Senate easily.

Remember, between Casey, Nelson, and Landrieu (who's up for reelection), we only need 1 vote.

Had there only been a single vacancy in September, 2005, I believe the Democrats would have put up much more opposition to Roberts. I doubt very highly that Pat Leahy (and many other Democrats) would've supported Roberts had there not been another vacancy to fill. They certainly would not have held their fire on Roberts, as they pretty much did. I'm guessing that had the Chief been the only vacancy, Roberts probably would've been confirmed with 65-70 votes instead of 78, still easily however. (As was, half the Democrats opposed him, anyway.)In many ways, Democrats did John Roberts a tremendous favor by not acting on his nomination to the D.C. Circuit Court of Appeals in 1992 and delaying his confirmation to that Court between 2001 and 2003. Had Roberts been confirmed in 1992, he would have NEVER been nominated for Chief, as Bush was looking for a stealth candidate. Even if Democrats had confirmed Roberts quickly in 2001, that still may have been too much a paper trail for Bush's liking. It was truly unfair what the Democrats did to Roberts in 1992 and again from 2001-2003, but Roberts truly got the last laugh and will be laughing on the Court for the next 30+ years. He who laughs last, truly does laugh best!

This is certainly only speculation, but I believe had Miers been on the Court instead of Sam Alito, the Court would've voted to strike down the ban on partial birth abortion and would have reaffirmed Stenberg v. Carhart (2000). Harriet Miers, who thinks there is a "proportional representation requirement of the Equal Protection Clause", would have gone soft on the Partial Birth Abortion issue because she would have been unable resist the arguments of Ginsburg, Breyer, Stevens and Souter in this case (and many other liberal precedents with NO constitutional basis). Today is a major victory for those of us who fought Miers and demanded a justice the caliber of Alito.

Re: 9

Bush hasn't looked for a movement conservative or flame-thrower to put on the Court, yet. If he wanted to put a movement conservative on the Court, he would have picked Michael Luttig! Unfortunately, I believe Bush is tremendously skeptical of (if not in outright opposed to) putting a movement conservative on the Supreme Court. Bush's stance certainly won't change now with the Democrats controlling the U.S. Senate.

True, between Casey, Nelson, and Landrieu, we only need 1 vote, but that assumes we don't lose Specter, Collins, or Snowe. Personally, I'm not optimistic about that.

Alito

does not directly overrule. Through indirection he eviscerates.

O'Conner, Kennedy, and Souter.

That has resulted in Roe vs Wade being affirmed, Lawrence. Kelso, ad nasceum. We are probably about ten years out from homosexual marriage being a Constitutional right, maybe less than five given the logic of Lawrence.

Suggesting conservatives redouble their support for a failed strategy is insane, or insideous.

Taking such advice the "prudent" and "practical" course would have been to accept Harry Reid's nominee, aka as "Harry Miers," without a fight. Guess what, conservatives faught for a better nominee, and, at least marginally, received one.

Maybe a "flamethrower" could be confirmed! Or, maybe, the nomination and filibuster of a "movement conservative" could rally enough social conservatives to elect a real conservative President in 2008.

If conservatives fight they might lose. But, if they don't fight, they will lose. Maybe conservatives fighting and losing would be a loss for moderates as well.

If moderates are made to feel our pain, so much the better!

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand uncompromising conservative action dedicated to conservative victory.

"True, between Casey, Nelson, and Landrieu, we only need 1 vote, but that assumes we don't lose Specter, Collins, or Snowe. Personally, I'm not optimistic about that."

Hmph. I think if its a female who's not a bombthrower (ie Edith Jones), we can get both Snowe and Collins.

Specter isn't a problem. He owes Bush for the support in the 2004 primaries, and he was reasonably fair as chairman. More importantly, if we can get Casey, Specter will not vote no while a Dem from his state votes yes.

It can be done, if the President has the will.

John Roberts would have gotten through this Senate easily... Remember, between Casey, Nelson, and Landrieu (who's up for reelection), we only need 1 vote.

That's assuming a) the candidate made it through the Senate Judiciary Committee, not at all a given; b) no "hold" is placed on the nomination; c) no Senate filibuster takes place (and it takes 60 votes to override a filibuster, unless the Senate were to go "nuclear", which we know there's no chance of that happening; and d) there aren't any other Republican defections. Sorry, but I see very little chance of all of the above holding true for any non-squishy candidate.

Boy, would it be great to be able to nominate Janice Rogers Brown? Imagine the position it would put the liberals in to try to tarnish someone who just happens to be a woman and a black! (Note that the only reason I list those things is because it matters to the morons who play these numbers games. I care only about a particular nominee's approach to and interpretations of the law, and have no interest in any particular classifications a particular person might happen to belong. From what I've read, JRB looks to be an outstanding jurist.)

a) Senate rules mandate a vote on a SCOTUS nominee regardless of the committee outcome. Bork lost in committee, 9-5, but got to the floor.
b/c) A majority party will not filibuster.
d) See above post.

Janice Rogers Brown is pushing 60, so I don't think she will be nominated.