Just as she was giving libertarians reason to cheer with powerful dissents in Raich and Kelo, Sandra Day O'Connor is calling it quits. Who should fill her spot on the bench? Reason consulted with a lineup of sharp legal thinkers in our July issue.
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Comments to "New at Reason":
Drew | July 1, 2005, 1:50pm | #
Email President Bush and ask him to nominate Ron Paul for her seat. What? Have you got something better to do?president@whitehouse.gov
phocion | July 1, 2005, 2:24pm | #
Has Ron Paul even passed the bar?I like the guy and all, but I like making petitions that are at least within the realm of possibility.
Jesse Walker | July 1, 2005, 2:29pm | #
NaG: The survey describes them as "libertarians in whole or in part."isaac Bartram | July 1, 2005, 2:31pm | #
Has Ron Paul even passed the bar?Ron Paul is a physician, not a lawyer. There is no requirement that a supreme court justice be a lawyer.
Still some judicial experience would seem desirable IMO.
As much as I like Rep. Paul I must say I'm not sure he's a good pick, even if there was a chance in hell he could get confirmed.
Thomas Paine's Goiter | July 1, 2005, 2:35pm | #
From another thread:The best possible nominee would be Ron Paul. Second to him, I'll take Steve Williams, sitting on the DC Circuit.
MayDay, Kozinsky isn't a bad choice either, and of those that are approvable, he's probably #1.
Thomas Paine's Goiter | July 1, 2005, 2:36pm | #
Has Ron Paul even passed the bar?Who cares? As long as the person has a deep mastery of the constituion, they're qualified in my book.
Shit - I'd LOVE to see Walter Williams too!
sam | July 1, 2005, 2:49pm | #
my vote's with volokh, cause he's cool, and his last name embodies all that is badass in the realm of last names.-sam
Brian | July 1, 2005, 2:53pm | #
I guess we're gonna see what happens to the Republican party when the prize they've been holding out to the fundies for 25-30 years, overturning Roe and maybe Griswold, finally becomes a possibility.Dubs could find a reasonable conservative republican who could get 80-90 votes . . . but I imagine he'll pick a kook and try to ram it through 51/49.
Thomas Paine's Goiter | July 1, 2005, 2:56pm | #
I guess we're gonna see what happens to the Republican party when the prize they've been holding out to the fundies for 25-30 years, overturning Roe and maybe Griswold, finally becomes a possibility.Even though this should be pretty far down the list of issues for this country, bring it up and it's obvious that it's #1. Even though we have many other SC decisions that have infringed on our rights, fucking abortions are the #1 issue in this country. How fucked are we?
R C Dean | July 1, 2005, 3:11pm | #
Dubs could find a reasonable conservative republican who could get 80-90 votesOliver Wendell Holmes his own judicial self couldn't get 80 - 90 votes in this Senate if he was nominated by Chimpler.
The Dems and their various support groups have way too much invested in opposing President McHitlerburton to suddenly say "eh, that's a pretty reasonable pick for the Supreme Court, we'll just wave it through" no matter who it is.
This will be a fight because a fight is what they want.
Thomas Paine's Goiter | July 1, 2005, 3:22pm | #
my vote's with volokh, cause he's cool, and his last name embodies all that is badass in the realm of last names.Sam, I'm out of touch. What are the new rules in cool last names?
Isaac Bartram | July 1, 2005, 3:22pm | #
R C DeanOliver Wendell Holmes his own judicial self couldn't get 80 - 90 votes in this Senate if he was nominated by Chimpler.
What do you make of this story?
http://www.thestate.com/mld/thestate/12010136.htm
I commented on it in the previous O'Connor retirement thread.
I'm interested in your take. An olive branch? or WTF???
M1EK | July 1, 2005, 3:32pm | #
I find it amazing that Julian would be enthusiastic about a piece which laid claim to Napolitano as a great libertarian thinker.Has anybody else listened to him guest-host O'Reilly? My car radio couldn't pick up much more than that station at my old job, so when I drove around at lunch, I got to hear him a few times.
Hint: He's a friggin' neocon; and what's worse, one who is willing to pander to religious nuts.
Ruth Bader Ginsburg, one of the most flamingly liberal, pathetic pieces of tree bark ever to take an oath of office, general council for the AC-fuckin'-LU, was confirmed 97-3. If that piece of excrement can get confirmed then it will be the height of hypocrisy for the left to start filibustering Bush's nominee. Prediction: agents of the left are going to outdo themselves over the next few months itself in demonstrating their contempt for the Constitution.
| July 1, 2005, 3:50pm | #
Ruth Bader Ginsburg, one of the most flamingly liberal, pathetic pieces of tree bark ever to take an oath of office...You mean the judge who when she sat on the DC Court of Appeals concurred with Robert Bork more times than Clarence thomas did.
panurge | July 1, 2005, 4:02pm | #
My guess is that Bush is going to nominate a moderate-conservative to the position. In doing so, he won't scare someone like John Paul Stevens away from stepping down, and thus he will have a stronger opportunity to seriously alter SCOTUS in the future.He'll save his far right nominees for later, especially if it means being able to give him/her (or Scalia or Thomas) the CJ position. The fact that it was O'Connor who stepped down instead of Rehnquest seems to have thrown DC into a tizzy, and it will take Bush and his pals a little longer than expected to name a candidate. (The White House released a statement saying to not expect anything until the end of next week.)
No, this must be a different Ginsburg I'm talking about. The one that voted with the majority on Raich and Kelo.
panurge | July 1, 2005, 4:11pm | #
To follow up on what I said a post ago, I think Bush is more interested in nominating someone who agrees with him on issues like holding detainees and the USA Patriot Act. If it comes down to someone who strongly supports him on those issues or someone who wants to overturn Roe, mark my words Bush will pick the former.And if he can find someone who agrees with him on both counts, he'll probably go with the other anyway because he won't want to risk a backlash from moderate Republicans.
Labels mean nothing | July 1, 2005, 4:16pm | #
Same one, Swill. How do you think Bork would've voted on Raich and Kelo?Gil | July 1, 2005, 4:17pm | #
Volokh would be awesome.But, he's probably too young, and has written too many things on his blog that could be used against him, to have much of a chance to be confirmed.
I'd like Kozinski, or Posner (if he promises to serve until he's 100), or Richard Epstein, or (if this is considered a female seat) perhaps one of the recently confirmed judges: Brown or Owen.
Kozinski or Epstein are probably the two best "legitamite" canidates from a libertarian perspective, but the left would stop at nothing to keep them off the Court.
I'm hoping that Rehnquist will resign in the next week. Then W can nominate Thomas as CJ, and Janice Rogers Brown for the O'Connor slot. We know there's going to be a big fight anyway, but since Brown just went through her hearings that should help minimize the sturm-und-drang.
thoreau | July 1, 2005, 4:58pm | #
Back I am! But not very frequently until Comcast activates my internet access. Right now I'm enjoying wireless from a coffee shop.On the matter at hand: We all know that the nominee will be judged first and foremost on one issue. Since I have no real hope of an ideal nominee from Bush, why not just reduce the pain and be honest about the process? Force the nominee to give a firm position on Roe v. Wade, and then the Senators can vote based on that issue. In the end that's what they'll all be voting about anyway, and we all know it, so let's cut to the chase and get it over with.
I know, I'm dreaming.
I'll describe my very arduous cross country trip later (the screenplay will be titled "The UHaul Diaries: A Tale of Market and Mechanical Failures"), but suffice it to say that I love Arizona and New Mexico for their scenery. Oklahoma is literally a red state in the best sense of the word (beautiful red soil). Indiana is smelly, and after driving on those roads I will never, ever, EVER complain about road construction again. (Well, I might complain if the government contractors are inefficient, yadda yadda yadda, but I will never ever complain about having to slow down because a road is being fixed. Fix them cheaply, fix them efficiently, but God Damn It Fix Them!) UHaul saved my ass. And rational economic calculations really suck when the most efficient answer is to sell your car for $100.
Back to unpacking.
Oh, and as the result of a meandering conversation with my wife over the course of 4 days, I've decided that some day I will run for office with the slogan "thoreau for mayor: Let the grass grow!" (And no, I don't mean that kind of grass, although the double meaning is nice.)
Swill | July 1, 2005, 5:01pm | #
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.''How do you think Bork would've voted on Raich and Kelo?
Cannot say for sure. Does not matter. I would expect him to respect his oath of office, just like I expect everyone else to.
Labels may mean nothing, but actions must count for something.
Paul | July 1, 2005, 5:01pm | #
Siva Vaidhyanathan is on crack. Just thought I'd get that in. Fer chrissakes, if anyone could eliminate 'meaning' from the constitution, it would be her favorite nominee.Paul
kmw | July 1, 2005, 5:02pm | #
The longer Rehnquist waits, the bigger the chance that he'll just drop dead instead of retire.I think it'd be funny to have Brown nominated to replace O'Connor. The Democrats would again piss and moan, and in the end she'd get confirmed again.
Proving to the world once again that the Democrats are dickless wonders. I don't know how people can call the "nuke showdown" a victory for the moderates. The nominees they opposed got in. How exactly did they win?
Labels mean nothing | July 1, 2005, 5:32pm | #
SwillYou can bet that Bork would have voted with the majority. And W will give us someone like Bork. An authoritarian fuck.
the Bushies might talk a line about property rights and freedom but what they want is to advance their agenda, which is a large scale plan of Right Wing Social Engineering.
Right Wing - Left Wing. Invade the Bedroom - Invade the Boardroom. What you end up with is SELF-RIGHTEOUS BUSY-BODIES.
bork also swore an oath to uphold the constitution when he was deputy AG for nixon...then did nixon's dirty work by firing archibald cox, instead of refusing on principle like richardson and ruckelshaus did. just following orders, i guess.
Iron Lungfish | July 1, 2005, 6:08pm | #
Even though we have many other SC decisions that have infringed on our rights, fucking abortions are the #1 issue in this country. How fucked are we?A little over half the population owns ovaries. Go figure.
M1EK | July 1, 2005, 6:16pm | #
Swill,Head on back to the New Republic, please. Your comments about Ginsburg are completely bogus - Clinton settled on her ON ADVICE FROM ORRIN HATCH.
M1EK | July 1, 2005, 6:17pm | #
"Even though we have many other SC decisions that have infringed on our rights, fucking abortions are the #1 issue in this country. How fucked are we?"Not as fucked as you, if you don't understand why the people who have wombs consider this their number one issue.
kmw | July 1, 2005, 6:40pm | #
oh, uh... You do realize that the Supreme Court has very little to do with whether abortions are legal, don't you?But don't let me stop an otherwise good rant.
Eric the .5b | July 1, 2005, 7:37pm | #
Thoreau - welcome back.Gene Berkman | July 1, 2005, 7:52pm | #
I have to say Sandra Day O'Connor was the best by far of the current court. Besides her dissent on Kelo, she wrote on dissent in the Medical Marijuana case that was excellent. She wrote the decision granting due process rights to someone Bush claimed was an "enemy combatant." And she provided a swing vote to save Roe v Wade in 1989. She will be missed.Best pick to replace her clearly would be Judge Alex Kosinski. He ruled against the government ban on hemp foods, so he would have liberal support as well as libertarians and some conservatives.
Richard Posner would also be good, based on the books he has written. But if he is on the high court, he might not have time to write more good books.
bigbigslacker | July 1, 2005, 8:12pm | #
Nobody with a womb thinks abortion is murder? In the end, this small l Libertarian is pro-abortion, but hate it when we skip over the issue of the rights of the 3rd party and try to argue the issue entirely from the perspective of "a woman's right to choose" and assume pro-lifers must be anti-choice fascists rather than protectors of the perceived innocent. I don't personally condemn a person who kills their cheating spouse, but I can't applaud them and argue for its unconditional legality at the federal level. Most rapists are men, but that shouldn't exclude women from the "jury of peers".(HMMM, fetus=cheating spouse, rapists,...I think this thought was going somewhere, but I kind of lost track somewhere. Maybe not. Time for another brew and stick to reading-only for the rest of the eve)
bigbigslacker | July 1, 2005, 8:34pm | #
let me respond to myself: "shut up, your drunk!"Mona | July 2, 2005, 12:49am | #
M1EKNot as fucked as you, if you don't understand why the people who have wombs consider this their number one issue.How completely arrogant and demeaning. I have a womb, and abortion is not remotely my number one issue. Of far more concern to me are holdings such as those in Raich and Kelo.
I'm squeamish abot abortion -- very -- but also understand that it is here to stay as a legal procedure. Even if Roe were overturned tomorrow, all that would do is pitch the issue back to the states, the vast majoriuty of which would not criminalize first trimester abortions. (They were legal in, among other states, CA and NY when Roe was handed down and the trend toward liberalizing abortion laws elsewhere was moving apace.) But for the next few months we are going to endlessly hear that coat hangers loom, and millions of women's lives hang in the balance on this appointment. As far as I am concerned, this is the left's version of Schiavo -- "the culture of death is here!" -- hysteria.
WRT the poster who thinks Bork would have joined the majority in Kelo. I am 95% certain that is incorrect. There is no way to retain fidelity to the "public use" language in the takings clause and end up with Kelo. I think he might have gone with the majority in Raich, as Scalia did, but would not be surprised if he didn't.
The anti-Roe jurists were, save for Scalia in Raich, on the side of liberty, federalism and property rights in Raich and Kelo. There is a reason for that congruence. So keep other Roe critics like them off the High Court at your peril.
I'd love to have Professor Epstein on the Supreme Court, but too-many statist Republicans will buckle. Kozinski is excellent, but like Posner, probably too outspoken in their opinions and blogs. Same for Volokh, who also has no judicial or private practice experience, and he's too young. It'll probably be Edith Jones of the 5th Circuit. If Rehnquist steps down, we'll get Luttig from the 4th Circuit. And if Stevens reties, then probably a hispanic like Alberto Gonzales or Emilio Garza.
M1EK | July 2, 2005, 12:11pm | #
Insert "most" in front of "womb owners" to placate Mona.But most of the rest of her post is bullshit. A few highly blue states would relegalize abortion; many purple states and all red states would NOT, and even then the Dubyites would seek to not just make it a state issue but criminalize it all over the land.
Try telling a woman in northern Mississippi that her 'choice' is to travel a thousand miles to Florida (assuming they don't cave) or New York.
And for those of you who think the rights of the fetus should be considered here, I eagerly await your practical proposal on how exactly to do this without a monstrous intrusion into the lives of the womb owners. No honest libertarian should want a law on the books which makes drug prohibition look like a harmless brouhaha.
Mona | July 2, 2005, 12:48pm | #
M1EK again errs: Insert "most" in front of "womb owners" to placate Mona.This is not so. The overwhelming majority of pro-life activists are female. My mother has long been involved in that movement, and 80% of the rank and file activists are female. Further -- and I have tried in vain to locate online this study that I read some 15 years ago -- the single cohort most in favor of abortion is upper-class white males.
In any event, even many red states would legalize first trimester abortions. The poll data is there; most Americans want abortion legal in the first trimester, and they vote in state elections. For those handful of states who would criminalize it, yes, women in those states would have to travel to have an abortion. Such is life in a democracy that respects federalism. NARAL, Planned Parenthood & etc. could surely establish travel expense funds for such women.
You go on to say: And for those of you who think the rights of the fetus should be considered here, I eagerly await your practical proposal on how exactly to do this without a monstrous intrusion into the lives of the womb owners.
Didn't go on before Roe, and wouldn't if it were reversed. There were no hunts to see what was going on women's wombs. There are libertarians who oppose legal abortion, such as Ron Paul. They believe that since govt legitimately protects human life, and since the fetus is a human life, the govt legitimately protects the fetus. If you want to purge such as Paul from libertarian ranks, fine. But not all of us will go with you.
Finally, Alex Kozinski, the Bulgarian born judge, a son of Holocaust survivors and who fled communism and so who knows a thing or three about tyranny, is one of the few libertarian-conservatives on the far left 9th Circuit Court of Appeals. He has taken positions that could be characterized as pro-life and is on many people's short list for an O'Connor or Rehnquist replacement. But you'd figure any "true libertarian" should oppose him, and presumably that the Democrats would be correct to prevent his ascending to the High Court. I disagree, and I think most reasonable libertarians would.
M1EK | July 2, 2005, 1:05pm | #
Mona:1. "Most pro-life activist are women", even if true, does not disprove "most women are pro-choice". Try again.
2. "There were no hunts to see what was going on women's wombs." - this is a monstrous understatement of the state of affairs for non-rich women seeking abortions pre-Roe. I suggest you read up, or, if you're not just ignorant and are actively seeking to misinform, just cut it out.
Mona | July 2, 2005, 1:45pm | #
M1EK continues with the evasive rhetoric: 1. "Most pro-life activist are women", even if true, does not disprove "most women are pro-choice". Try again.I think that's probably true, at this point. However, your original claim was: Not as fucked as you, if you don't understand why the people who have wombs consider this their number one issue. Most women do not consider abortion their number one issue, leastwise, no polling data that I have seen confirm your claim.
Further, that most women would wish for abortion to be legal in the first trimester is precisely why overturning Roe would not mean that abortion would be criminalized in most states. Women, like men, vote in state elections.
You continue: 2. "There were no hunts to see what was going on women's wombs." - this is a monstrous understatement of the state of affairs for non-rich women seeking abortions pre-Roe. I suggest you read up, or, if you're not just ignorant and are actively seeking to misinform, just cut it out.
Really? I came of age pre-Roe, and recall no womb police. Neither does any woman my age or older that I know. Deaths from illegal abortions had been steadily declining, in some part because abortion technology was improving. (And coat hangers would not be the illegal tool of choice if abortion were criminalized anywhere again; there would be a black market in suction aspiration devices; but few states would criminalize abortion anyway, and folks could travel out-of-state, as a young, indigent member of my immediate family did some six years ago for reasons of anonymity.) But do enlighten me.
As I said before, this hysteria about "women's lives and womb police!" is the flip side of the "Save Terri! and stop the culture of death" mania.
Xrlq | July 2, 2005, 6:26pm | #
Jesse Walker:NaG: The survey describes them as "libertarians in whole or in part."That's setting the bar pretty damned low, to include just about anyone who isn't a perfect statist. I don't think I know anyone who couldn't be described as "libertarian in part." Do you?
Particularly galling was Reason's inclusion of Nat Hentoff, who waxed poetic about how "we are Americans because of the Bill of Rights" almost in the same breath as he advocated the nomination of Jack Weinstein, a far-left judge who has done his damnedest to help activists sue part of the Bill of Rights out of existence.
thoreau | July 2, 2005, 9:06pm | #
I nominate Ron Paul for Supreme Court, but not for the reason that most libertarians give:We all know what the primary issue will be, and so what we need is somebody with in-depth knowledge of obstetrics. Ron Paul is an obstetrician and so he's obviously qualified to sit on the Supreme Court!
(Yes, I know what his stance is on abortion, and I know that many libertarians disagree with that stance for one reason or another, but my suggestion was mostly tongue-in-cheek.)
Lowdog | July 2, 2005, 9:45pm | #
Hey, fuck it, I wrote Bush and suggested Ron Paul. It'll never happen, but I can forgive him giving abortion rights back to the states if he'll continue backing the constitution.Which is the same thing, really, right?
thoreau | July 2, 2005, 9:56pm | #
Lowdog-I've suggested before that we create a 4th branch of government: The Obstetric Branch. This branch of government would have sole authority over abortion. It would be an assembly with, oh, maybe 50,000 members or so. This huge size would basically be to ensure that the really hard-core activists on both sides are sequestered in DC rather than protesting in front of clinics. This branch of government would be given sole authority over abortion, but it would only be able to make decisions by a huge super-majority, ensuring that it never actually does anything.
thoreau | July 2, 2005, 9:59pm | #
Hmm, maybe we could do something similar for other branches of government: Make super-majority requirements for Congress to do anything. And make the Presidency a 20-member body, with the stipulation that the executive branch can't do anything without a huge super-majority either.And the Supremes can't rule on anything unless it's 9-0.
Who's up for this?
Not me. If tax cuts required a supermajority, the top marginal rate would be at pre-Kennedy levels, concealed carry would be legal in about three states, and God only knows what else.
M1EK | July 4, 2005, 10:27am | #
"Further, that most women would wish for abortion to be legal in the first trimester is precisely why overturning Roe would not mean that abortion would be criminalized in most states. Women, like men, vote in state elections."I have to wonder who, exactly, you are that you could be so incredibly naive as to think that 'most states' (which, by the way, voted heavily Bush) wouldn't criminalize abortion. Women in those states are split; and the men are 99% pro-life. In what world do you do _your_ math?
Mona | July 5, 2005, 1:08am | #
M1EK claimsWomen in those states are split; and the men are 99% pro-life. In what world do you do _your_ math?Citation, please?
M1EK | July 5, 2005, 9:07am | #
One general and one specific.http://rightrainbow.com/archives/2004/12/mississippi_dow.html
"The polling you cite is national. You see different results if you look at state-by-state figures. For example, the Mississippi Legislature would presumably not be so aggressively pro-life if the voters of that state thought highly of abortion on demand.
If Roe is ever overturned and the question of abortion's legality returned to the legislatures, it would be the state-by-state polling data, and not the national data, that would matter. You're right that even in the absence of Roe, abortion will never again be uniformly illegal in the United States. But it would be illegal, or at least highly restricted, in much of red state America."
http://64.233.179.104/search?q=cache:jdVWTBT39skJ:www.ssrc.msstate.edu/Publications/srrs99-1.pdf+%22mississippi+poll%22+abortion&hl=en
(by the way, it's darn hard to find a citation with a specific poll result on this stuff - this took me 20 minutes).
"Abortion should be legal for women who are married and don't want any more children. Agree 22% Disagree 72%"
James Anderson Merritt | July 5, 2005, 3:05pm | #
I'm thinking that abortion rights might morph into an eminent domain issue. Statistically, the post-natal pay more taxes than they consume in services. Thus, the state has a compelling interest in making sure more future taxpayers are born. If the state can find someone to manage a woman's womb better than she can, why not condemn it and turn it over to the government-appointed conservator, so as to (literally) increase the tax base?And what are YOU laughing about, chuckles? Like this kind of thing can never happen? Let me ask you: What do you get when you combine eminent domain with abortion law? Something like Lebensborn, wouldn't you say?
Yeah, my tongue is in my cheek, but remember: absurdist comedy of 50 years ago (not to mention dystopian fiction) has become "surrealistic" reality today. Nothing is so far out that some authoritarian nut won't run with it, given half a chance.