A Speculation Too Far

Posted in Law and Politics by Mike Sacks on July 26, 2010

Jeff Greenfield at CBS News writes of the “possibility” that Obama could replace a conservative justice before 2012:

Now imagine it’s 2011, and the Senate has become more Republican than it is now; And imagine that Clarence Thomas or Antonin Scalia — or Roberts or Alito or even Anthony Kennedy (the “swing justice”) — has to leave the bench. […]

If there is a liberal nominee posed to replace a conservative, we are sure to hear Republicans arguing for the merits of a filibuster, while Democrats attack it as an invalid tactic. We will hear Republicans arguing that ideology is indeed a legitimate ground for voting against a nominee qualified by experience; while Democrats, who once asserted precisely that point, will argue that qualifications and competence are what matters. […]

The potential for gridlock and conflict becomes even greater if we imagine a Republican takeover of the Senate in November; meaning that the Judiciary Committee, and the Senate calendar, would come under the control of Republicans, In that case, try to imagine what kind of nominee Mr. Obama could get confirmed.

I’ve done some speculating on this blog, but Greenfield’s rests in the no man’s land between the patently absurd and entirely plausible.  That is, he’s peddling as possible an abject impossibility for the sake of clever commentary.  Two problems: his observations are obvious, not illuminating; and his starting hypothetical is a non-starter in reality.  Absent an unforeseen death, no member of the Court’s conservative bloc–or Justice Kennedy–is going anywhere in the next two (or even six) years.

Now, we can certainly talk about Obama’s lower court nominations in the next two years should the GOP gain majorities or at least more significant minorities in Congress this November.  And we can talk about whether such a potential change in Congress will impact the list of potential successors to Justice Ginsburg should she retire during Obama’s first term.  But please, no more futile talk of who will replace Scalia in the next two years.

2 Responses

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  1. SCOTUSblog » Tuesday round-up said, on July 27, 2010 at 11:00 am

    […] vacant until voters decide in 2012 who should be nominating justices.”  Mike Sacks, at his First One @ One First blog, dismisses Greenfield’s hypothetical as “a speculation too […]

  2. Miguel Dickson said, on July 29, 2010 at 11:47 am

    To be politic about it; extrapolating from actuarial charts, Scalia has a roughly 7.5% chance of dying within the next 2 years, and Thomas roughly ~5%. So planning or talking about either is not much different from discussing a roughly improbable, but by no means impossible event.

    Incidentally, I’m with Sandy Levinson in going against life tenure in general, and morbid death-wishes and death-calculations would probably assume less significance if you knew when SCOTUS justices’ terms would end.

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