Posts Tagged ‘brennan’

When Thinking About Obama’s Supreme Court Nominee, Just Remember the Law of 5

April 9, 2010

As I said in post last year when Justice Souter announced his retirement, I warned that putting a liberal Scalia on the bench would be an epic mistake.  In that post, I said the most important rule to remember is the “Law of 5,” referring to the proposition that Justice Brennan lived by–“You can do anything with 5 votes.”  What we have seen in the past decade is Justice Stevens take on the role once performed by Justice Brennan.  With a Court evenly dividend between the “liberal” and “conservative” Justice with Justice Kennedy in the middle on many votes, Justice Stevens used the “political” skills acquired over a career of 34 years to convince Justice Kennedy to side with the liberals rather than with the conservatives many times.  Using those skills, Justice Stevens was able to shape areas such as the War on Terrorism, Death Penalty jurisprudence and the environment.  He did this by making compromises on the legal basis for many decisions, narrowing the results others or using his power to assign the opinions to Kennedy to get Kennedy’s vote.

Did he win all of these battles?  No, just look at cases such as Bush v Gore or Citizens United v FEC.  But he did get a majority for more liberal results more times than could be thought possible given the fact that for most of the past 20 years,  7 of the 9 Justices (including himself) were appointed by Republican Presidents.  It is this skill over all others and over any specific ideology that will be missed most by liberals.  And it is the skill to convince 4 others to join you that President Obama should keep front and center as he makes his decision on whom to nominate.

No Liberal Scalias

May 6, 2009

With President Obama set to name his first nominee to the Supreme Court Democrats and liberals are debating whether the President should name a “Liberal Scalia?”  On February 3, 2009, Dahlia Lithwick wrote on slate.com, “Indeed, the most consistent aspect of the liberal grousing about the court is that there is no left-wing counterpart for Justice Antonin Scalia.”

But appointing a liberal Scalia would be a mistake of epic proportion.  There is no doubt Justice Scalia is incredibly smart, and a very gifted writer.  In person, he is one of the funniest people I have heard speak.  His intellect and writing skills make his opinions some of the most memorable you will read.  Readability of writing and clarity of legal principles is what many liberals desire.

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