Supreme Court Vacancy

The retirement of Justice Sandra Day O’Connor has left the Supreme Court with its first vacancy in 11 years. Justice O’Connor has for years been considered one of the “moderate” justices, whose vote is often the critical 5th vote on a court that regularly divides 5-4. Groups on both sides of the political spectrum had already firmly entrenched themselves for the nomination/confirmation process, anticipating the retirement of conservative Chief Justice Rehnquist. Now the battle will be even fiercer, because the President will not simply be replacing one “solid” conservative with another, but he can actually change the entire balance of power on the nation’s highest court.

I know it is entirely naïve, but I would like to see appointments based upon the qualifications and history of a candidate rather than his or her adherence to a certain political position. President Bush has commented that the court lacks a “Judicial Giant”, someone in the mold of Oliver Wendell Holmes, or Benjamin Cardozo. For example, Richard Posner of the University of Chicago was a judge on the 7th Circuit for nearly 20 years, and is one of the best known legal minds in America. It would be nice to see Bush nominate someone such as Posner for the vacancy, rather than picking an administration insider. (Here is a link to Posner’s blog: http://www.becker-posner-blog.com/)

Unfortunately, now might not be the time to appoint a true “moderate” to the court. The recent eminent domain decision is the most recent example that leads me to believe the next appointment(s) to the court need to be judges who have a more strict interpretation of the Constitution. As much as we like to consider that there is a “living” Constitution, the fact of the matter is that the Constitution is a document that has a discoverable meaning as it was written. The fact that five justices were able to “read in” that almost any incidental benefit to the public qualifies as a “public use” under the Constitution is very disturbing. Whoever is appointed to replace Justice O’Connor needs to be someone who is not going to change the meaning of the Constitution to fit with their own vision of how society should be ordered. Congress is our legislative body, and such a change should originate with them.

The new justice needs to make sure that the court knows its role in our democracy, and doesn’t try to usurp the powers of the legislature. If that means that we have to appoint a more conservative justice, than so be it.