Posted by Orin Kerr:
The Weird Politics Before the Rehnquist Retirement:
Is it just me, or has the news relating to the courts and the legal
system been a bit weird recently? The big stories in the past few
weeks have been filibusters in the Senate, Justice Sunday, the alleged
Constitution-in-Exile movement, and Tom DeLay's criticism of Justice
Kennedy. All of these stories have something in common, I think. They
are mostly proxies for the political struggle to confirm the Bush
Administration's choice to replace the ailing Chief Justice Rehnquist.
Of course, much of this is under the radar screen. The Chief hasn't
even announced his retirement yet, so it seems a bit strange to be
waging the battle for his replacement. But the battle clearly has
begun: more and more news stories about the law and the courts are
being triggered by one side or the other jockeying for political
advantage. The goal for both sides seems to be to create a political
environment designed to influence the swing votes in the Senate. When
Rehnquist retires, Bush's nominee to replace him will face a tough
time in the Senate. Lots of people are figuring that anything they can
to do to fire up the base or shift the political environment to help
their side might just make the difference.
Of course, it's hard to do this on the merits. We don't even know
who the nominee will be, so we don't yet have a human story to tell
and a record to scrutinize. And most people don't know or care about
the details of what the courts do, so an advertising campaign on
Eleventh Amendment law or the original meaning of the Fourteenth
Amendment seems unlikely to shift the political ground. In this
environment, demonizing the worldview of your opponents is key. The
other side has to be more than just wrong; the other side needs to be
sneaky, suspect, and downright dangerous.
The most popular strategy on both sides seems to be to take some
possible negative effect of your opponent's conduct or position,
imagine a very extreme position of it, and then accuse your opponent
of intentionally trying to bring that about. You end up with a very
weird debate: if you believe all the accusations, you would think that
the key question is whether the anti-religious bigots in the Senate
will confirm nominees who want to restore the Constitution-in-Exile.
After awhile, you can't help but think that no one on either side
fully believes what they are so emphatically saying.
What's the answer? I don't think there is one, except perhaps to
wait it out. The political stakes are high, and political actors will
do what they think they need to do to help out their side. In the
meantime, if you're watching TV and you hear someone say something
about the courts that you think is simply absurd, you can probably
chalk it up to the weird politics before the Rehnquist retirement.
Any thoughts? I have enabled comments. As always, civil and
respectful comments only.
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