Friday, May 01, 2009

Souter's retirement: don't worry

A quick note about the news late last night that Justice David Souter is stepping down...

> He's been a reliable and utterly unremarkable member of the "liberal wing" of the Court. On the issues that matter most to prolifers and conservatives, he's been no help at all. So his replacement cannot make that any worse.

> In theory, President Obama could pick someone less of a cipher, and that could, perhaps, be a plus for the pro-abortion side, but it's hard to see how. The swing vote is Justice Kennedy, who seems to gravitate to other, brighter lights on the Court, but also tends to seek "balance." It's hard to see how a new pick makes any real change.

> All the angst from prolifers is that, oh no, we've lost our chance! Not really. It means we have to wait a bit longer for that seat to open up, and that's just as well, because what hope do we realistically have of anyone good taking it? Why assume the president elected in 2012 is going to be any good? It just doesn't matter for the time being. (On the other hand, losing one of our good justices would matter.)

> A lot of thinking on this is what a friend calls "trick play" thinking: we can trick our way into getting what we want. So, for example, we can get the President and the Senate to overturn Roe--by approving nominees--when they manifestly won't do it legislatively...which, contrary to what most think, can be done--but it's hard, hence the preference for the trick play. Well, guess what: it hasn't worked. I think if we stopped going for the trick play, and actually did the hard work on the legislative front, we'd make more, real progress. Prolifers have good support in Congress, not enough, but better than is realized, and when we mobilize prolife opinion and bring it to bear on Congress, we can make a real difference, particularly in gumming up the works enough to stop bad legislation.

> So I think this is not something to worry about; but there are opportunities. Prolifers will be very interested, and this will have the good effect of helping mobilize more of our folks to take an interest in these matters. That's good. Also, there will be a tug-of-war between those around the President who want someone more "mainstream" vs. the "true believers." Fine, whichever way that turns out, it's good. Either we get someone who votes better; or we get someone who makes no actual difference, yet serves to illustrate vividly the problem. Win-win.

> The downside is that Justice Souter, being minimally effective and a non-spokesman for his side, might be replaced by someone who actually is a litttle more interesting and useful. But that's a very marginal matter. The prolife cause has Scalia who even his worst critics concede is brilliant and eloquent--and we still haven't prevailed. In the end, it's who has the votes. They already have this vote, so maybe they'll get a marginally more interesting person to cast it.

> The real benefit of this I've saved to describe last: this will consume time and energy on the part of the White House and the Senate for several months. That's very good. The time and energy spent on this, the next few months, is time and energy not spent on other things, that actually could make things worse in the here-and-now. If it means action on other stuff gets delayed a few months, that could really be very useful in the long run.

4 comments:

Milites Domini said...

Thank you for your analysis, Father. ...praying everyday for Obama's and all sinners' conversion. God bless you.

Peggy said...

Good analysis. What many people are overlooking is the importance of state legislatures. We need states to get brave and adopt pro-life laws. Let these go to SCOTUS. There will be no overturning of Roe without a state law to challenge Roe. The states have taken it all sitting down and abdicated responsibility. Maybe Rick Perry should put his money where his mouth is and push for pro=life laws in TX. Where is the SD law at this time?

Greta said...

Father, I agree with everything but of course if you have someone a under 50 replace souter that simply means they will potentially be their supporting abortion for decades.

On another interesting twist, saw this on a legal blog site

This is from a blog site of William A. Jacobson
Associate Clinical Professor of Law, Cornell Law School

Specter Defection Will Haunt Democrats On Souter Replacement and more

News is breaking that Supreme Court Justice David Souter is retiring. There will be a fight over his replacement, for sure. And Arlen Specter switching may have given Republicans a trump card to block an unacceptable replacement.

Everyone, including me, has been blogging about how Specter defecting to the Democrats puts the Democrats close to a filibuster proof majority in the Senate, potentially allowing Obama to push through his agenda. And this seems true on most subjects.

But ironically, Specter's defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here's the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter's retirement was in play:

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?
the Senate Judiciary Committee rule:

IV. BRINGING A MATTER TO A VOTE
The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he's just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I'm sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.

Anonymous said...

While time and energy are being spent on a selection, let us take this time to do a lot of covert action of our own. Let us pray that someone somewhere can make people understand what is happening to our country since we allowed God to be pushed aside.

As Fr. Corapi said, if we stand for nothing we fall for everything picking popularity over morality and prestige over principal.

Let us pray that our eyes will see what God wants us to see. Our lips speak what God wants us to say. Our hearts know God is with us and will give us the grace to do His will instead of our own.