Terry Eastland, the publisher of the Weekly Standard, has a great dedication to the late Chief Justice William H. Rehnquist in the September 26, 2004 issue of the Weekly Standard. Eastland points out that after many years of Republican President's like Nixon, Ford, Reagan, and Bush I promising to appoint judges who followed the text of the Constitution that the founding fathers wrote instead of being what President Nixon dubbed as "superlegislators with a free hand to impose their social and political viewpoint upon the American people," Justice Rehnquist would finally reflect such a judical temperament when he was placed on the court. Whether it was his early years in the wilderness as the "Lone Ranger" who offered up the only dissent in a number of decisions or his introduction of "new federalism" after receiving the Chief's gavel along with the addition of several judicial friends like O'Connor, Scalia and Thomas, Justice Rehnquist always demonstrated his commitment to being an originalist who understood the tenants of federalism and why the founding fathers placed "We the people," in the preamble of the Constitution. Eastland goes on to note that while the judicial friends of Rehnquist like Thomas and Scalia come about their decision from different angles, they are still from a common clay known as "originalism" this providing a base to build upon Rehquist's model of "new federalism."
Let's just hope that this nation will be blessed by more judicial picks in the mold of Rehnquist, Scalia, and Thomas. I'd have to say that after watching three days of Judge Robert's confirmation hearings, the President has reassured the American people that they will have a Chief Justice very reminiscent of the late Rehnquist. Eastland points out the most pressing question before him and the nation - at least when it comes to the next pick - is what's next for the nation in appointing Justice O'Connor's replacement. Here's his thought about the situation at hand:
So here is George W. Bush, with an opportunity to move the Court to the judicial right. If the experience of the past 40 years teaches that it is possible to pick jurists who turn out to be judicial conservatives, it also teaches that other, less agreeable, factors can influence the selection process. In 1981 Reagan considered a person's sex--he wanted to appoint the first female justice--when he picked O'Connor, who joined Rehnquist in his pro-federalism efforts, but whose approach to judging often resulted in mushy decisions that offered little guidance for future litigants. According to Kenneth Starr's account in First Among Equals: The Supreme Court in American Life, had Reagan followed the Justice Department's recommendation, Bork would have been the choice, not O'Connor. (Not incidentally, Republicans controlled the Senate in 1981.)Let's just hope that this nation will be blessed by more judicial picks in the mold of Rehnquist, Scalia, and Thomas.
In choosing John Roberts to succeed Rehnquist, Bush may well have selected a genuine judicial conservative. The question now is whether Bush will pick another judicial conservative to take O'Connor's place, thereby producing a vote shift and a more conservative Court. The temptation will be to seek to preempt opposition from Senate Democrats by subordinating judicial philosophy, and choosing someone on the basis of, say, diversity. Or by choosing someone who has said next to nothing about the great legal issues of the day--such as Souter, who once told a law clerk, "I never had to think about these things until I came to Washington. I never thought about them. I had no settled views."
If Bush devalues judicial philosophy in choosing O'Connor's successor, the project of modern Republican presidents to redirect the Court will stay roughly where it is now, with no important advances. What ought to embolden the president is a number--55. That's the number of Republicans in the Senate, and it should be enough to prevail if Senate Democrats decide to wage a confirmation battle.
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