I cannot shake the feeling that this is nomination/confirmation process is going to be super-ugly... like Robert Bork ugly (since he was basically bounced out of consideration for being... GASP!... conservative).
Regardless of whether you are Democrat or Repbulican, this turning into a slugfest does zero to get top-flight jurists onto the USSC. Everything is so ridiculously scrutinized and pored over now... not to see if they have a keen legal mind, but to review their decisions through the political lens of the day. Any potential candidate practically has to have lived the life of a monk and never had an opinion about anything in order to survive the inevitable trial by fire.
What I find to be sort of weird about the arguments ya'll have presented so far, is your faith that Bush will appoint a justice who WON'T legislate from the bench. I share your dislike of this practice, but I find it unlikely that the tide will be turned by Bush appointees. This administration hasn't been particularly conservative (in any sort of traditional sense) so far and I find it unlikely that they'll suddenly start now.
Maybe I'm being overly pessimistic, but the consistent erosion of personal freedom and rise of government power has been a bi-partisan effort and will probably continue unabated. As for Gonzalez, a guy who supports secret military trials and indefinite detentions doesn't seem like much of a conservative to me! Of course, I'm not as smart as you guys and I should probably watch the mainstream news more often so I can develop the correct opinions and analysis before I post.
This is a valid point. One person's judicial activism is another person's "correct interpretation" of the law.
The other thing to remember is that most judges, regardless of political leanings, realize that overturning precedent is a big deal. In fact, overturning past precedent, especially precedent that has been around for several years, is itself a form of judicial activism that disrupts the legal system.
Finally, people who are either worried or excited, depending on political leanings, about the prospect of overturning Roe v. Wade are in for a surprise. First, a case that may implicate that decision must reach the USSC. Second, overturning Roe will not make abortion illegal -- no court, not even the USSC, can make new criminal laws.
Overturning Roe will simply allow the states to pass laws on the matter. I think any attempt by Congress to legislate the matter would raise a Commerce Clause issue, and even a conservative jurist would recognize that abortion is not a federal matter.
Lastly, even if a state passes laws on the matter, that state's supreme court could declare that the law violates the state constitution. So, no one needs to hold their breath over this upcoming nomination.
Whether you consider yourself on the left or right, this is huge.
O'Connor was arguably the most influential Justice since she was the swing vote, ie, she was the fifth vote in all the 5-4 decisions that have so strongly characterized the Supreme Court for the recent past. The unique thing about O'Connor was she could be difficult to peg on cases, you couldn't be certain whether she would side with left or right. (Kind of sad that matters of constitutionality in this country can now be identified as such.)
If Bush gets a staunch conservative in there, it will still be 5-4, but much more consistently on the right side of ledger. On its face, this appears to be the right's dream come true, but there is the wild card factor-- the next Justice could turn out to be another swing voter, or be a complete surprise in how they decided cases, like Earl Warren.
One things for certain, we're in for some seriously ugly politicing.
The judiciary hasn't been balanced since FDR's court packing back in the 30's and 40's.
The people voted conservative - nothing anyone can do about that until the next election. My guess is that you will be even more upset than you are now about the conservative tilt in the legislative branch.
But the judiciary is different. Lifetime appointments make the selection process very important. Being that Bush is fairly conservative, I should expect him to nominate people that reflect his viewpoints.
As for the tough-guy posturing of the Dem leadership: what a freaking joke. Consult with us before you make a nomination? Fuck off. My vote goes for the Repubs to go nuclear at the first sign of a Gin-Nosed Ted/Reid led filibuster.