WARREN, Burger, Rehnquist -- just three men representing fifty-three years of jurisprudence while over the same time span ten men have filled the Oval Office. Forty-three Presidents have served in our nation's history, yet over the same time span there have been only sixteen chief justices of the Supreme Court. It's been nearly eleven years since the last Supreme Court appointment, Justice Stephen Breyer in 1994 -- the longest period ever. The underpinnings of the Court's power has been examined recently as well as --and more importantly -- the looming vacancy or vacancies on the Court.
A future Court vacancy is very real given the age and health of some of the justices. The current Supreme Court is not young by any stretch of the imagination. Clarence Thomas is the Court's youngest member at 56 and John Paul Stevens its oldest at 84. In all, four justices are over age of 70, including Chief Justice Rehnquist, who is 80 years old. Rehnquist has also been in the new most recently for his ill health as he battles thyroid cancer and associated breathing problems. Cancer is no stranger to the Court, as Ruth Bader Ginsberg has battled colon cancer and Sandra Day O'Connor breast cancer during their respective terms. Consequently, due to the old age and ill health of some of the Court's members, it's no surprise that speculation has been rampant in recent years about the possibility of a vacancy on the Court.
Under the most likely scenario, Chief Justice Rehnquist leaves the Court and President Bush promotes one of the two other conservative stalwarts of the court, Clarence Thomas and Anton Scalia, to chief justice. However, the promotion and confirmation of either Thomas or Scalia, or any justice for that matter, would necessitate the selection and confirmation of another associate justice to fill the Court's requisite nine seats. It is with the confirmation of any potential Bush selection that the entire process goes off the rails.
One of the first things that comes to mind whenever discussion of a Supreme Court vacancy reaches the forefront of the national dialogue are pro-abortion fanatics who immediately paint the situation as a potential assault on Roe v. Wade. Abortion advocates love utilizing scare tactics to demonize potential judicial nominees before they're even given an up or down vote.
The National Organization of Women touts Justice Janice Brown, a nominee to the D.C. Circuit Court as a "right-wing extremist," and the Center for Reproductive Rights (a cutesy term that polls better than abortion) last year released its own version of the doomsday scenario entitled "What if Roe Fell?" in which the authors warn that abortion rights could be swept away in weeks in most states.
The second group often associated with any mention of a Supreme Court vacancy are the ne'er-do-wells otherwise known as Senate Democrats. Most of the Democrats in the U.S. Senate are shockingly transparent when it comes to their position on any potential Bush nominee to the Supreme Court: if they're a moderate then maybe, if they're a conservative then forget about it.
In 2003, Senators Pat Leahy, D-VT, and Tom Daschle, D-SD, even had the gall to urge Bush to consult with the Democratic leadership in the Senate prior to nominating someone to the Supreme Court. Democratic disillusionment like Leahy's and Daschle's is perhaps the most asinine factor in the judicial nomination process. Democrats do not have a majority in the Senate, in fact the Republican margin isn't even one or two Senators -- it's five. If the American public wanted obstructionist senators, then surely more Democrats would have won on November 2, but this was not the case.
The vitriolic exchanges between Republicans and Democrats on Capitol Hill over judicial nominees will surely get much worse before it gets better. There will inevitably be a Supreme Court vacancy, and most likely sooner rather than later. But Olson also mentioned something much deeper. Two centuries ago, Chief Justice John Marshall and the early Supreme Court fought for its relevancy and power in American government, culminating in Marbury v. Madison. Now, 200 years later, the Court finds itself at the center of the political battle between Republicans and Democrats, each attempting to make the Court a pawn in their respective political roadmaps.
Joe Schilling's column appears Tuesdays in The Cavalier Daily. He can be reached at jschilling@cavalierdaily.com.
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