Posts Tagged ‘rule of 5’

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.

It’s Like the NYTimes Read My Blog

May 7, 2009

In today’s NYTimes, Adam Liptak, in an article about replacing Justice Souter, wrote:

The first rule of the Supreme Court, Justice Brennan would say, holding up his open hand, is to get to five — meaning persuading five of the nine justices. . . “The replacement to Souter is not going to make an ideological majority for progressives,” said Abner J. Mikva, a former federal judge who taught with Mr. Obama at the University of Chicago“The new justice has got to be someone who can persuade Kennedy and maybe even Alito.” Justice Anthony M. Kennedy is the court’s swing justice, and Justice Samuel A. Alito Jr., a conservative, is the court’s newest member.

Like I said before, the only thing that matters is 5.  While it would be nice to have a Justice who could write memorable opinions, if they are mostly dissenting opinions, it won’t matter.