Your Lying Eyes

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20 July 2005

Roberts v O'Connor

At this point, it seems quite likely that, barring any skeletons jumping out of the closet, John G. Roberts will replace Sandra Day O'Connor on the Supreme Court. So what does this mean?

Some on the right are concerned that he will end up being another Stevens or Souter, both named by Republican presidents but who turned out very liberal. I don't think so. He seems likely to be more like Rehnquist than Scalia or Thomas - safely conservative but unlikely to do anything too dramatic. But O'Connor was also conservative while still being a thorn in the side of the right. So let's take a look.

Last term, the court delivered 21 close opinions (5-4 or 5-3 when Rehnquist was out), one of which (Granholm) we'll ignore since it did not divide at all along ideological lines. How did O'Connor vote on these? On 10 of the cases she voted with the conservatives and she voted with the liberals on the other 10. Typical - you'd think she planned it this way. Looking a little closer at the cases, not all of them divided neatly ideologically - in 3 cases some mixing occurred (but not like Granholm). If we ignore these as well, that leaves it at 9 conservative to 8 liberal votes for O'Connor. Of those 8 liberal votes, 5 were in the majority. So if we assume that Roberts would have been consistently conservative had he been on the court last year instead of O'Connor, that would have given conservatives only 5 more decisions.

And what were these decisions? Here's a rundown:

McCreary County, KY. v. ACLU: Ten Commandments, 1st Amendment, establishment clause, displays
Rompilla v. PA Dept. of Corrections): Capital case, habeas corpus, sentencing, ineffective counsel
Small v. U.S.: Firearms ban, felons
Jackson v. Birmingham Board of Education: Title IX, private cause of action, gender discrimination, retaliation
U.S. v. Booker: Enhanced sentencing, judge/jury findings, 6th Amendment, Blakely

Nothing too dramatic here. While Roberts should help even out the balance a bit on a court that tilts somewhat to the left, liberals have no reason to fear any substantial lurch rightward in the court's decisions.


Anonymous Anonymous said...

Well done

July 21, 2005 10:30 AM  
Blogger ziel said...

I'm deleting all anonymous posts - unless of course they simply say "Well done"

July 21, 2005 8:52 PM  
Anonymous Anonymous said...

your comment that we libs have no reason to fear a rightward lurch give little solace, especially if he becomes more like Scalia or "Uncle" Thomas as you say is likely.

July 22, 2005 9:42 AM  
Anonymous Anonymous said...

My point is that even if he were another Scalia or "Doubting" Thomas, given that O'Connor only delivered just 5 decisions to the liberals last year (and none of them particularly earth-shattering), his lone vote is not going to matter that much. Unless Stevens retires, it's unlikely Bush will have an opportunity to fundamentally change the court.

July 22, 2005 12:36 PM  
Anonymous Anonymous said...

I'm deleting all anonymous posts - unless of course they simply say "Well done"


July 22, 2005 1:03 PM  
Anonymous Anonymous said...

I guess there is no place for a First Amendment argument on a Blog since it is, by definition, an oligarchy (sp?) with Ziel as the Supreme.
No complaints, just an observation about one man's ability to judge the "readworthiness" of another's comments.

July 22, 2005 7:17 PM  
Anonymous Anonymous said...

My previos comment notwithstanding, I do thing people should be willing to identify themselves, at least with a nickname, so that we can direct comments to someone. Anonymous is a pretty big field.

July 22, 2005 7:19 PM  
Anonymous Anonymous said...

I can't imagine too many people having too much problem with Roberts. He fills the right's wish for a conservative but it's going to be tough for the left to get much support for serious opposition. Even New york Chuck can't muster much opposition. He's not a nominee that they'll want to draw a line in the sand against, knowing that they are likely to have nominees in the future who have "leanings" versus "convictions".
I think it is a clear Bush strategy. My prediction (though I doubt I'd get long odds on this)is that Renquist was "encouraged" to make his "I'm staying" declaration but may have a sudden change of heart once Roberts is confirmed. Then we'll have the Scalia/Thomas to Chief battle which Bush will try to temper through suggesting the appointment of a woman, Hispanic or purported centerist to fill that spot.
An attempt to overturn Roe would result in a public debate that would identify the country as centerist (at least on that issue) to the extent that we don't like abortion but do believe it should be legal (much like gangsta rap)and I don't think Bush wants that "hard right" defeat.
Roberts appears to be a fine man and he's got my vote (though I expect he'll get some shit from my rep on the committee - Mary Landrieu (sp).)
In the end, I think this is the calm before the storm.

July 22, 2005 7:53 PM  
Blogger ziel said...

Harlem - I think he is the perfect candidate for Bush to have nominated. Why he couldn't have done this with the UN Ambassodorship is beyond me. There have to be a hundred hard-line conservative foreign policy guys in D.C. without Bolton's baggage he could have named.
Maybe he's learning. I keep hoping. Perhaps we'll see some signs of withdrawal from Iraq soon.

July 23, 2005 1:04 AM  

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