Confirmation Friendly Fire
posted by Tuan Samahon
It is a meme by now that Republicans will reflexively oppose any nominee of President Obama to fill the Stevens vacancy.
Of course, that observation may too narrowly describe a reflexive response equally applicable to Republicans and Democrats, conservatives and liberals. Consider a few of the left’s prediction bloopers.
1. Margaret Drachsler, the National Organization of Women, expressed her “grave concern” about the nomination of John Paul Stevens to the Supreme Court. NOW opposed his confirmation. See Nomination of John Paul Stevens to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 94th Cong. 78 (1975). NOW apparently has since kissed and made up with Justice Stevens given its latest press release, which calls him a “real champion” of women’s rights.
2. Kate Michelman, Executive Director, National Abortion Rights Action League (NARAL), did no better with her statement during the Souter confirmation hearing. “[I]f confirmed, Judge Souter would destroy 17 years of precedent and cast the deciding vote to overrule Roe v. Wade.” See Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 101st Cong. 363 (1991). Ironically, Souter cast a deciding vote in Casey to preserve the core holding of Roe v. Wade.
3. Jeffrey Levi, then Executive Director of the National Gay and Lesbian Task Force, probably didn’t anticipate a Justice Anthony Kennedy would author Lawrence v. Texas, the opinion that overruled Bowers v. Hardwick, when he opposed Kennedy’s confirmation and said he had “a far too narrow definition of the universe of Americans entitled to the rights guaranteed under the Constitution.” See Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 100th Cong. 426-27 (1989).
Oops. I guess it’s a good thing the justices (apparently) don’t hold grudges.
Perhaps the prediction problem results from the difference between horizontal and vertical stare decisis. Supreme Court justices don’t have to observe the decree of a hierarchically superior court, just the persuasive pull of a prior Court and the need to drum up five willing voters.
Perhaps it is the problem of jurisprudential drift and the effect elite opinion makers have on justices over time.
Or perhaps it is the fact that law is not merely politics by other means and law does have some constraining power.