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The Next United States Supreme Court Justice

December 10th, 2006 | by Randy |

Here is an interesting commentary discussing how George W. Bush should approach selecting the next United States Supreme Court Justice by Michael J. Gaynor.

Discuss amongst yourselves…

The Next United States Supreme Court Justice

President George W. Bush did not nominate anyone to serve on the United States Supreme Court during his first term, but in 2005 there were two vacancies (as a result of the death of Chief Justice William Rehnquist and the resignation of Associate Justice Sandra Day O’Connor) and President Bush nominated and, with the advice and consent of the United States Senate, appointed superb successors, Chief Justice John Roberts and Associate Justice Samuel A. Alito, Jr., to full those vacancies.

Unfortunately, there is still not a true strict constructionist majority among the United States Supreme Court Justices.

Evidence: the Supreme Court declined to review the anti-creche/pro-menorah 2 to 1 Second Circuit decision, a decision that the people who founded America, framed its Construction and formulated and ratified the religious clauses of the First Amendment would find even more objectionable that Everson v. Board of Education, the 1947 Supreme Court decision that disregarded American history and mangled those clauses as a call for a separation of church and state that not only excluded a religious test for public office, but mandated governmental neutrality between religion and irreligion and prohibited governmental support for religion generally.

Fortunately, President Bush may have an opportunity to appoint another highly qualified strict constructionist to replace a judicial activist who blithely ignores the Constitution’s prescribed amendment procedure and effectively amends the Constitution under the guise of interpreting it.

Secular extremists and their Democrat allies fought so hard this year to wrest control of the United States Senate from the Republicans in the hope that the success would dissuade President Bush from nominating another strict constructionist if the opportunity arises.

The Republicans lost the battle, but President Bush can still win the war by making another strict constructionist appointment.

M. Edward Whelan III, president of the Ethics and Public Policy Center, director of its Constitution, Courts and Culture program and a constitutional law and judicial confirmation process, posted a bench memo titled “Still Plenty of Room to Confirm Strong Justices” on Election Night 2006, assuring readers that despair was not in order and promising to explain.

Mr. Whelan: “Even if Democrats do take control, President Bush will still have plenty of room to get another excellent Supreme Court justice—or even two or three more—confirmed. I will spell out my thoughts on this more fully soon, but, at least on the topic of Supreme Court confirmations, there’s simply no cause for despair.”

Neither despair nor disappointment would be the word I would have chosen to describe my reaction to Republican loss of Senate control. That word would have been disgust, as in the failure to campaign strongly on the judges issue and the investment of resources in the failed re-election campaign of Republican in Name Only Senator Lincoln Chafee of Rhode Island instead of the salvageable campaign of Republican Senator Conrad Burns of Montana are grounds for disgust.
The next day, while there still was hope that Republicans would still control the Senate during the next Congress, the persuasive Wendy E. Long, general counsel of the Judicial Confirmation Network, made the case that Mr. Whelan had promised, but postponed, in a bench memo titled “Five Reasons To be Happy About Judicial Prospects.”

Mrs. Long: “We don’t know yet — and may not know for some time — whether the Senate will be red or blue for the next two years.

“But Ed is exactly right that even if the Senate goes Democrat, President Bush will still be well positioned for the Senate to confirm an outstanding judicial conservative should he have another Supreme Court nomination to make in the next two years. There are a few reasons why this is so:

“One, Justice Thomas was confirmed, 52-48, in 1991, when there were 57 Democrats and 43 Republicans in the Senate. The Judiciary Committee voted him out on a partisan 7-7 split. The liberal special interest groups made sure there was lots of cover for Democrats to vote against him. But he was confirmed, with 11 Democrats voting in favor of him.

“Two, regrettably, the issue of the courts and liberal judicial activism was not made the focus of these midterm elections. If the issue had been a centerpiece of tough campaigns, the result might have been different, because the vast majority of Americans believe strongly that our courts, especially the Supreme Court, must return to the limited role in our society that the Constitution prescribes. We didn’t capitalize on it in the campaigns, but the enthusiasm and deep commitment to the issue is still out there.

“Three, if the Democrats are foolish enough to try to filibuster outstanding judicial conservative nominees, they can go on record opposing cloture and being obstructionists. There is no filibuster-proof nominee who is worth his or her salt. But it’s up to the Democrats how far they want to block and obstruct the nomination process and good people. If they do, they will surely pay in 2008.

“Four, the Democrats who won in this election ran as moderates. Their conduct on judges will be a perfect test of whether they were being honest with the American people. Chuck Schumer seems confident they will join the liberal left filibuster wing of the Democrat party. He thinks they are in his pocket. Maybe so. Or maybe these self-styled moderates will remember how they got to the Senate and will stand up to the liberal left.

“Five, Ted Kennedy and his pals can no longer argue that Republicans are ‘controlling all three branches of the federal government’ as a reason why President Bush’s nominees should not be confirmed. If Democrats control Congress, all the more reason to confirm those solid judicial conservatives to the Court.”

I find myself in full agreement with Mrs. Long generally and some of her points in her don’t-feel-suicidal piece very well taken. I fully agree that “[t]here is no filibuster-proof nominee who is worth his or her salt” and the judges issue should have been made “the centerpiece of tough campaigns.” Yet I think Democrats ARE “foolish enough to try to filibuster outstanding judicial conservative nominees” and I recall that Southern Democrat Senators provided the votes that confirmed Justice Clarence Thomas, there are few of their kind in the Senate these days. I think that Democrats, having won control of the Senate by being obstructionists, are not likely to flinch when charged with obstructing a controversial Supreme Court confirmation that the secular extremists and pro-abortion Democrat supporters fear mightily. (Democrats find strict constructionists controversial.)

Further, although Senate Democrats who won ran as moderates, I think they are not likely to antagonize the senior pro-abortion Democrats, who will do their worst to demonize any strict constructionist nominee and pose as protectors of constitutional rights with the help of much of the media. More importantly, I fear that President Bush will decide that a battle for another Supreme Court strict constructionist is a political war he cannot afford and nominate someone not “worth his or her salt.” Probably “her salt.”

Mr. Whelan then wrote a National Review article titled “Strong justices can still be confirmed,” conceding that Republican loss of Senate control is “bad news,” but insisting that there still can be “another excellent Supreme Court justice — or even two or three more — confirmed” during the remainder of President Bush’s second term.

Mr. Whelan: ”Skeptical? Consider the last Republican appointee to the Court to be confirmed by a Democrat-controlled Senate — Clarence Thomas in 1991. That Senate had 57 Democrats and only 43 Republicans, and the swirl of allegations gave Democrats plenty of cover to vote against the nomination. Still, 11 Democrats voted for Thomas, and he was confirmed by a 52-48 margin.”

Mrs. Long’s first point. But the democrat Party has changed, for the worse.

Mr. Whelan: ”A lot has changed since 1991, but the changes cut in both directions. The Democrats have gotten more unified — and nastier — on judicial confirmations since then, but the high-profile politics of a Supreme Court nomination enhances the case for confirmation of a strong pick. Opponents can’t rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won’t go unanswered.”

I’m sure the “borking” of a strong Supreme Court nominee will elicit appropriate response, but Democrats have gotten used to blocking votes on judicial nominees during the Bush II Administration as well as lying about judicial nominees. Ask Judge Boyle, among many.

Mr. Whelan: ”More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum. Opponents of a strong nominee will have to be ready to pay a high price for their opposition. Plus, President Bush, having appointed two white males to the Court, still has the diversity card to play, so a nominee who is a committed proponent of judicial restraint and also a female or a minority would have added political punch.”

True! But Democrats will offer a list of other females and minorities whom they find acceptable and insist they are not being sexist or racist, but protecting women and minorities from one of them who would “set back the clock.”

Mr. Whelan: ”Forty-one of 45 Democrats voted against Justice Alito’s nomination. But the four Democrats who voted for him — Byrd, Conrad, Johnson, and Ben Nelson — would be decent bets to vote for the next strong conservative nominee. To be sure, the votes of Byrd, Conrad, and Nelson may have been influenced by the fact that they were up for re-election this year. But since their re-election prospects were never in serious peril, that factor would not seem a major one.”

Three of the four were just re-elected and all of them voted for Justice Alito, so they could plausibly describe a vote against another Supreme Court nominee as a carefully considered judgment by a judicious Senator who already voted for each President Bush Supreme Court nominee on whom the Senate vote, but is not a rubber stamp and found this one not to up to the high long of Supreme Court confirmation.

Mr. Whelan: ”Besides, of course, other Democrats are now looking ahead to re-election in 2008. Along with Johnson (South Dakota), Senators Baucus (Montana), Landrieu (Louisiana), and Pryor (Arkansas) will be running in “red” states in 2008. Especially if they face the prospect of hefty Republican opponents, they won’t be eager to be siding with Teddy Kennedy as he rants against the nominee.

I hope so. But would they vote to end a filibuster?

Mr. Whelan: ”Senator-Elect Casey of Pennsylvania is an eighth Democrat whom the White House could reasonably look to for a ‘yes’ vote on confirmation. Casey might as well dance on the grave of his father (a hero of mine) if he would vote against a nominee who could provide the decisive vote to restore abortion policy to the democratic processes.”

I think his fellow Democrats would keep him in line. He’s NOT his father. He’s not as independent-minded as the man he replaced in the Senate, Rick Santorum, and the other Pennsylvania Senator, Arlen Specter, might not be willing to vote for “a nominee who could provide the decisive vote to restore abortion policy to the democratic processes,” making it easier for Senator Casey to oppose confirmation despite the abortion issue.

Mr. Whelan: ”In sum, a high-quality conservative nominee with a good public presence — and with the support of the broader conservative coalition that coalesced around Chief Justice Roberts and Justice Alito — should be able to hold all, or virtually all, the 49 Republicans and to pick off the one or more Democrats needed for confirmation. Vice President Cheney’s tie breaking vote shouldn’t even be needed.”

IF THERE IS AN UP-OR-DOWN VOTE.

Mr. Whelan: ”This prospect may well incite Democrats to prevent a straight up-or-down floor vote, by bottling the nomination up in committee or by filibustering it. But either approach is a high-risk tactic that could fuel a powerful backlash as it exposes the extremism of the Democrats. In any event, it would make no sense for President Bush to aim for a nominee who would draw support from the highly partisan Democrats on the Judiciary Committee or attract the 60 votes needed to defeat a filibuster. That path would lead to another Justice Souter. Far better to fight the fight, with a real prospect of victory, than to surrender abjectly.”

WITH THAT, I FULLY AGREE! How about President Bush recess appointing a respected strict constructionst. Perhaps Robert Bork, to serve until a permanent successor is confirmed? That might speed up confirmation of someone worth his or her salt!

Mr. Whelan: ”Quality nominees to the federal courts of appeals will face much tougher odds than a quality Supreme Court nominee, because it’s far easier for Democrats to obstruct these nominees without arousing the public’s attention. It’s worth noting, though, that the situation in the Senate for appellate-court nominees has already been so bad that it can’t get all that much worse. Over the past four years, Senate Democrats have used the extraordinary power that Senate rules and practices confer on the minority party to engage in an unprecedented campaign of obstruction. Senate Republicans, in other words, have never enjoyed actual meaningful control of the Senate on these nominations (or anything else) during that period. The increase in Democratic influence is thus far less than the shift in formal control would suggest.”

True. It was bad before, and it’s a bit worse.

Mr. Whelan: ”For district-court nominees, the change in the Senate means relatively little. Nearly all of these nominees are essentially senatorial picks (including, in many cases, picks by Senate Democrats), and the tradition of senatorial courtesy — reinforced by the Democrats’ desire not to appear too obstinate — should keep these nominees moving.”

True. Fortunately.

Mr. Whelan: ”Bottom line: The situation on judicial nominations will obviously get more difficult, but in the event of a Supreme Court vacancy there’s ample reason to believe that President Bush can deepen his mark on presidential history by getting another outstanding justice confirmed.”

Whether President Bush gets it or not, he should fight hard for it instead of nominate someone whom Senator Charles Schumer of New York will support.

A few weeks later, Mr. Whelan posted a bench memo titled “Straight Up-Or-Down Vote on Next Supreme Court Nominee,” reiterating his position and rebutting a pessimistic U.S. News & World Report article on the chance of a strong conservative nominee being confirmed to the Supreme Court: “This U.S. News & World Report article on the next Supreme Court vacancy is badly off the mark. The reporter is apparently so wedded to her preconceived notion that President Bush will have difficulty getting a strong conservative nominee confirmed that she doesn’t think carefully about what she herself is reporting. (And, Leonard Leo tells me, she quoted only the snippet of his comments that she could use to support her thesis and ignored his repeated point that there are plenty of votes to confirm another outstanding justice.)

“The most significant quotation in the article is from a liberal commentator: ‘The issue of filibuster … is off the table, and [Supreme Court] nominees now will go through the regular order: from Judiciary Committee, to the Senate floor, and to a vote.’ Let’s briefly flesh out the two halves of this quote.

“First: The justifications for the existence of the filibuster rest on defense of the minority party’s rights. The filibuster, in other words, is a tool of the minority party. So far as I can tell, on only one occasion has the filibuster ever been supported by the majority leader in the Senate to try to defeat a judicial nominee (by the Democrats against Edward Carnes’s nomination to the Eleventh Circuit in 1992), and that effort failed as nearly half the Democrats abandoned George Mitchell’s lead. The partisan use of the filibuster by a majority party against a Supreme Court nominee is unprecedented, and for good reason. Senate Democrats would look ridiculous, would expose the tremendous rift between the Left of the party and their few moderates, and would demonstrate that they are a party not fit for governing if they were to resort to the filibuster.

“Second: The long-established practice in the Senate is for Supreme Court nominees to receive a full Senate vote, even if they don’t receive a favorable vote in the Judiciary Committee. Americans will expect their senators to vote on the nominee, not to delegate a veto to the highly partisan Democrat membership of the Senate Judiciary Committee.

“In other words, established practices mean that President Bush’s next Supreme Court nominee will receive a straight up-or-down vote on confirmation on the Senate floor. As I explained here, the relatively simple task for the White House is to hold all or virtually all the 49 Republican votes and attract the one or more Democrats needed for confirmation. (It is of course possible that Senate Democrats will try to depart from these established practices. But if they do so, they can easily be made to pay a very high price.)

“The compelling lessons of the Roberts and Alito confirmations are that (1) quality counts—that is, pick a nominee of outstanding ability, and (2) in the battle between judicial restraint and liberal judicial activism, the American people side overwhelmingly with judicial restraint. If and when the occasion arises, there is therefore every reason for President Bush to nominate another outstanding proponent of judicial restraint and to be confident that that nominee will be confirmed.”

BOTTOM LINE: Whether or not President Bush is well-positioned to win confirmation of a highly qualified strict constructionist to sit on the United States Supreme Court is irrelevant to the type of person he should nominate. When it comes to appointing Supreme Court nominees, President Bush should stay the course, that is, nominate highly qualified strict constructionists, whether or not the Democrats filibuster or muster the votes to reject the nominee. President Bush wins if his nominee is confirmed OR filibustered. He loses if he nominates someone who is not worth his or her salt, to please Democrats (and America loses too). He wins if he shifts the focus from a discreet, albeit fundamental issue, like abortion, to whether government really is supposed to be neutral as between religion and irreligion and not support religion generally, a battle secular extremists consider won and do not want to fight again.

Michael J. Gaynor

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Biography - Michael J. Gaynor
Michael J. Gaynor, born in New York in 1949, has been practicing law in New York for more than thirty years. A member of the Association of the Bar of the City of New York, he is now a solo practitioner and admitted to practice in the New York State courts, the United States District Court for the Southern and Eastern Districts of New York, and the United States Court of Appeals for the Second Circuit.
In 1969 Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University’s innovative New College, then a three-year program supported by the Ford Foundation.
In 1972 Gaynor received his doctorate of jurisprudence degree from St. John’s University School of Law. There he was in the top 10% of his class. He won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote an article on the Pentagon Papers case for the Law Review and two articles on obscenity law for The Catholic Lawyer, in addition to overseeing the Law Review’s commentary on significant developments in New York law, then called “The Quarterly Survey of New York Practice.”
The day after graduating from St. John’s Law School, Gaynor joined Fulton, Walter & Duncombe, a Manhattan law firm with offices at Rockefeller Center. Gaynor worked with that firm, first as an associate and then as a partner, through 1996. He engaged in general practice, involving corporate law, federal and state litigation, mergers and acquisitions, trusts and estates law, tax law, and other areas of law, on behalf of the firm’s clients, including International Flavors & Fragrances Inc., Carvel Corporation, Tenneco Inc., UniWorld Group, Inc., and Palisades Geophysical Institute, Inc., as well as substantial charitable organizations, other corporations and individuals.
In 1997 Gaynor and Emily Bass formed the law firm of Gaynor & Bass. For more than five years, Gaynor & Bass conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed upon appeal to the United States Court of Appeals for the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The United States Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation. Bass, as a solo practioner, had filed the case on behalf of a group of freelance writers, and the United States District Court had granted the defendants’ motion for summary judgment on liability.
He is a regular columnist at www.MichNews.com, www.renewamerica.us, www.webcommentary.com and www.postchronicle.com and has contributed to www.catholiconline.com, www.capitolhillcoffeehouse.com, www.yourcatholicvoice.com, www.intellectualconservative.com, www.starrjournal.com, www.therant.us, www.peoplepolitical.com and www.salon.com.
In 2005, Gaynor appeared as a guest on “Your World With Cavuto” (FOX Cable) to promote the eBay boycott that he initiated (see www.boycottebay.org/reports.html) and “The World Over With Raymond Arroyo” (EWTN) to discuss the legal implications of the tragic Terri Schiavo case. He can be reached at GaynorMike@aol.com