By way of introduction and explanation of this post, allow me to explain the irony behind me working for the Center for Congressional and Presidential studies. Astute readers may realize that our center focuses on only two of the three branches of our federal government. The judiciary branch is conspicuously left out. This is of course fine for an academic center - you have to specialize in something, and what would we call ourselves if we studied all three branches? But it underlines a common tendency in many of my political science professors and colleagues - a tendency to ignore that pesky third branch of government. The judicial branch is best left to people who went to law school, and plus it's hard to get quantitative data out of studying cases, briefs or justices. Without numbers, you can't possibly engage in legitimate research, can you? Better to leave the judicial branch to lawyers and law reviews. This is the sentiment that I sense from many in my chosen academic field. I, however, have always considered the judicial branch to be one of my main academic interests - even if the focus won't do me any good when I'm on the job market. I therefore will frequently defend it's relevancy to the topics studied by this center and addressed in this blog. Sometimes, the Washington Post helps me out.
This article first caught my eye because of the headline: "Courtin' the Left and Right: Roberts Scare Seizes the Trail." I like the Post. I respect it greatly as a news source, and love living in a city now with such a good newspaper. But come on now, anonymous copy editor that wrote that headline, could you be any more cheesy and insensitive to boot? Anyway, the article summarizes the fallout among Members of Congress, presidential candidates, and political pundits after Chief Justice John Roberts had a seizure over the weekend.
First of all, many Supreme Court justices have served under much worse medical conditions than Roberts (Roberts' own predecessor, William Rehnquist, served while receiving radiation and chemotherapy treatments for thyroid cancer). As the article points out, Roberts is a "young whelp" compared to many of his fellow justices. This episode just serves to stir speculation, however unjustified, about what would happen if another vacancy opened up during Bush's presidency. The article's author predicts "all out war" if such a vacancy occurred, and the statements from Senators Schumer and Specter certainly support this prediction. Neither the article or the Senators, however, make any distinctions among justices in this speculation. In other words, it would be a much bigger deal if a justice from the liberal bloc on the Court (Ginsburg, Souter, Stevens, or Breyer), or if the current "swing vote" (Kennedy - though proving not to be as much of a swing as O'Connor was) were to retire. If Bush were replacing Scalia, Thomas, Roberts, or Alito, much less would be at stake.
Also interesting is the conviction that Sen. Specter conveys - like the country was hoodwinked by Roberts and Alito, and they won't be tricked again! Our colleague at AU offers some interesting analysis on this.
No matter what happens during the rest of Bush's term, the next President will likely have several opportunities to influence the Supreme Court's future decisions for decades to come. It's amazing how small of a campaign issue this has been so far. Presidents' terms of 4 or 8 years are relative flashes in the pan compared to the average term of a Supreme Court justice (approx. 25 years). And no matter how you slice it, in the end these justices have the final say on any policy, if they choose to do the saying. Perhaps as the campaign wears on, more will be said about this awesome judicial appointment power. For now, the speculation is mostly left to Supreme Court nerds like myself and SCOTUSblog (who have compiled lists of potential new nominees).