Dere go da judge…

So… Souter first?

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About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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54 Responses to Dere go da judge…

  1. Franciscus Angelorum says:

    The best we can pragmatically hope for is the status quo. The worst… God forbid…

  2. Greg says:

    I just read the news, Father. Unfortunately, Souter’s retirement does not bode well for the pro-life cause. Stevens and Ginsburg will be replaced during Obama’s Presidency (and yes, I am assuming that he will be re-elected in 2012). Between the anti-life Congress that will continue to be elected and the Supreme Court nominees, the “right” to an abortion will be upheld. Let us all pray to Saint Thomas More, patron saint of statesmen and politicians to intercede on our behalf. A dark day has arisen in America…and I’m only too afraid to consider the consequences. The downfall of Western Civilization might have begun on this day…if it hasn’t already.

    Greg

  3. LCB says:

    *sigh*

    Nice “Happy 100 Days” gift Justice Souter gave to Mr. Obama.

    This whole abortion fiasco could have been ended with Bork.

    And who lead the fight in the Senate against Bork? The author of the Biden Report, one Senator Joe Biden. Another key player in the Borking? One Senator Arlen Specter.

  4. John says:

    The next Supreme Court Justice will be worse.

  5. Mitch_WA says:

    Justice Doug Kmiec?

  6. Allan says:

    Saint Thomas More intercede, and pray for us, Saint Michael The Archangel, defend us in the battle, Mother of Fatima come to our aid, Jesus have mercy on sinners, and the United States.

  7. Thomas Burk says:

    http://www.foxnews.com/story/0,2933,518566,00.html

    Supposed short list of Obama’s Picks for Supreme Court: Elena Kagan, Deval Patrick, Ruben Castello, Margaret McKeown, Diane Wood, Pam Karlan, Cass Sunstein.

  8. Luke says:

    Looking at this from an abortion perspective:

    Nothing really changes. You’re trading one Roe supporter in for another. The Pro-Life bloc, with Scalia, Thomas, Roberts, Alito, and sometimes Kennedy remains. None of those guys are leaving during Obama’s term, unless something unforeseen occurs. With those guys on, the balance is still in favor of limiting (although not overturning with Kennedy) Roe, if such a case comes up.

    Elane Kagan – mark her down as my prediction.

  9. Luke says:

    And say what you want about his support for Obama, but Doug Kmiec would be a great choice for opponents of abortion. Unfortunately, he’s far too conservative for Obama.

    He’d be my pick though.

  10. fxavier says:

    Entirely expected. Expected Ginsburg to be up for retirement too. The liberal judges are the most grey-haired and have been waiting for a Democrat President. The Democrat Senate which is almost filibuster proof is a bonus.

    From a pro-life position, it means the extension of the abortion regime. There will be younger blood in the liberal wing of the Supreme Court.

    Democrat President
    +
    virtually super-majority Democrat Senate
    =
    1 very Liberal Supreme Court Justice

  11. Thomas Burk says:

    Perhaps Kmiec has supported Obama all along in order to try to get a SCOTUS seat, as some believe, but I don’t think he would ever be trusted enough to get the nomination. Probably the best we could hope for, however.

  12. Temple_U_Staff says:

    I’ve become accustomed to the apocalyptic end-of-America-as-we-know-it comments on this blog. But this one, from Greg, really takes the cake:

    “The downfall of Western Civilization might have begun on this day…if it hasn’t already.”

    I have to admit: I laughed out loud when I read that – and I don’t like Souter or Obama’s pro-choice politics, either. NOT GOOD. So could we please rein in the hyperventilating, folks? Seriously, these may be hard times for Catholic Conservatives, but if we hope to be spiritual LEADERS, and not just whiners, we need to project the optimism of our convictions – not the apocalypse of our nightmares. Get a grip, for goodness sake!

  13. Brendan says:

    I fear that Obama will have a chance to appoint 3 liberal hardliners in 4 years. They would be replacing already liberal judges, but it’s likely Obama will appoint young judges who will serve for years, and a future pro-life president will have a hard time with the Supreme Court.

    As a young college student, I may see the day when Roe v. Wade gets overturned, but unfortunately my parents and the generation above me will likely not. It’s possible that I might not even see the day when our country stops slaughtering millions of innocent children every year.

    St. Michael the Archangel, defend us in battle.

  14. Martin T. says:

    …. but if we hope to be spiritual LEADERS, and not just whiners, we need to project the optimism of our convictions ? not the apocalypse of our nightmares. Get a grip, for goodness sake!

    Amen. Trust not in princes…

  15. Houghton G. says:

    He waited until after Specter jumped parties and the Minnesota election results began to tilt fairly decisively toward Franken to make his intentions known. John McCain’s Gang of 14 preserved the (unconstitutional) judicial filibuster for nothing. (Even had Specter not jumped and had Franken lost, the Democrats would not have hesitated to change the rules to eliminate the judicial filibuster anyway. McCain’s preening as “wise compromiser” cost us a number of good, solid lower federal court appointees being put into the pipeline since the Democrats continued to stall on overall judiciary appointments. Yes, we got Alito and Roberts, but I’m not convinced the Democrats would have had the gall to filibuster them. Perhaps they would have and, if so, that’s all we have the Gang of 14 to thank for. But we lost at lower federal court levels–when we could have deep-sixed the judicial filibuster. McCain warned that the Democrats would destroy it for the Republicans when they regained control of Congress if the Republicans destroyed it. The laugh’s on McCain–what he fought to preserve so the Republicans could use it when out of power is gone anyway. It was predictable.

  16. Matt says:

    Well, nothing is certain in politics. Souter was supposed to be part of the conservative block, and look what happened after he was confirmed.

  17. kjc says:

    Interesting to see because Kmiec has been carrying Obama’s water in the hope of a supreme court seat. Of course, Obama will never give it to him; where does Kmiec go then after turning his back on the Repub’s because of some supposed slight by Bush. Poor Dougie, all for your career-which is going nowhere.

  18. Boston Architect says:

    The Boston media (WCVB Channel 5) was stating that Massachusetts Governor Deval Patrick’s was being ‘floated about’ as possible candidate for Souter’s post. There was also speculation that there was a strong possibility that a women would be selected for the appointment.

  19. I am not Spartacus says:

    Seriously, these may be hard times for Catholic Conservatives, but if we hope to be spiritual LEADERS, and not just whiners…

    Temple_U_Staff. Just the other day, Bishop Finn, publicly, identified the reality the Catholic Church is at war. I didn’t get the sense he was hyperventilating, whining, or experiencing a nightmare. (And what spiritual LEADER mocks a brother?)

    … we need to project the optimism of our convictions – not the apocalypse of our nightmares.

    That phrase could almost serve as a severely distilled summary of the New Testament.

    I think Greg is guilty of being a realist.

    BTW, the Government is coming for ALL of us..from Bishops on down to the poor pew denizen.

    http://www.capitolhillblue.com/node/17815

  20. PNP, OP says:

    The Senate may be filibuster proof but the Senate Judiciary Cmte is not. With Specter the Unfriendly Ghost gone from the minority party, there is no GOP senator to vote for closure on debate. IOW, to end a cmte filibuster, one member of the GOP on the cmte must vote against his GOP colleagues and allow the nomination to go to the Senate. This member was usually Specter, who will now be just another member of the majority party.

    Fr. Philip, OP

  21. I am not Spartacus says:

    Houghton. When the putatively Pro-Life Republican Party had control of The Presidency, and majorities in The Senate and The House, they had ALL the Constitutional authority they needed to remove from SCOTUS the authority to hear cases involving abortion.

    Article 111 In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    (I’m just doing this quickly, off the top of my head, so I apologise if I cited the wrong article of The Constitution).

    The reality is the Republicans treasured abortion as an election weapon. They never intended, as least as far as I can see, to turn the weapon of abortion into a plowshare so as to cultivate The Common Good.

  22. RBrown says:

    I have to admit: I laughed out loud when I read that – and I don’t like Souter or Obama’s pro-abortion politics, either.
    Comment by Temple_U_Staff

    fyp

  23. RBrown says:

    BTW, I don’t think the Specter-as-Dem move will re-orient his voting habits.

  24. Let us be mindful, folks, that Souter has not made any announcement at this time.

  25. wjd says:

    Just an observation. Many of the liberal standard-bearers of the Court have been appointees by conservative Presidents. These Justices started out conservative then shifted left. I can’t think of any examples that went in the opposite direction, but I’m wondering if that’s just coincidence. Is there any fundamental reason why a liberal appointee can’t see the error of his views on abortion and move right? This may just be naive optimism, but there’s at least a colorable argument that picking Supreme Court Justices is just a roll of the dice. Pres. Obama can pick whomever he thinks will agree with him, but in the end, Justices are independent and they’re going to do what they’re going to do. St. Thomas More pray for us. Better yet, St. Thomas More pray for our Supreme Court Justices and nominees.

  26. RBrown says:

    The reality is the Republicans treasured abortion as an election weapon. They never intended, as least as far as I can see, to turn the weapon of abortion into a plowshare so as to cultivate The Common Good.
    Comment by I am not Spartacus

    Strongly disagree. The Repubs placed Thomas, Scalia, Roberts, and Alito on the Court. All have been dependable anti-Roe votes. If Kennedy had come as advertised, Roe would have been overturned, with the decision returning to the judgment of each state.

    Further, in so far as Executive decisions can limit abortion, Repub Presidents have been good in that area.

    Unfortunately, conservatives often have the tendency to preserve the status quo (read: stare decisis), and so conservative-to-moderate justices like Souter, O’Connor, and Kennedy voted to keep Roe.

  27. RBrown says:

    The reality is the Republicans treasured abortion as an election weapon. They never intended, as least as far as I can see, to turn the weapon of abortion into a plowshare so as to cultivate The Common Good.
    Comment by I am not Spartacus

    Strongly disagree. The Repubs placed Thomas, Scalia, Roberts, and Alito on the Court. All have been dependable anti-Roe votes. If Kennedy had come as advertised, Roe would have been overturned, with the decision returning to the judgment of each state.

    Further, in so far as Executive decisions can limit abortion, Repub Presidents have been good in that area.

    Unfortunately, conservatives often have the tendency to preserve the status quo (read: stare decisis), and so conservative-to-moderate justices like Souter, O\’Connor, and Kennedy voted to keep Roe.

  28. Latekate says:

    It’s all a charade. These people are high priests of the state. They will do nothing that is against the interests of the state (the absolute state, totalitarianism), “conservative” or “liberal”. They are ALL statists, working FOR the state for the interests of the state which are diammetrically opposed to Christianity. Martin T. is right. Trust not in princes. The abortion war will not be won by government laws or opinions. It must be won in the hearts of the people. Who cares what the black robed bishops of the state decree? Wrong is wrong and we ned to convince/educate the people of that, not rely on government laws and force.

  29. TNCath says:

    Well, at least we know it won’t be Hillary Clinton. Unfortunately, however, Bill is available…

  30. Sarsfield says:

    Souter’s retirement changes nothing. One pro-Roe vote replaced by another. But at least we will have one less pro-abortion justice nominated by a pro-life President. How does that happen? Souter, O’Connor, Kennedy . . . to say nothing of the solidly Republican Supreme Court that gave us Roe v. Wade to begin with. Remember, the dissent in Roe v. Wade was written by a Democrat (White) nominated by a Kennedy.

  31. Maureen says:

    Justice Souter’s thoughtful, analytical opinions are models of clarity. But then he was a philosphy major.

  32. I agree with Luke, there is no reason to get so upset. Souter was terrible. His replacement is not going to make anything worse. Lightning could strike and the replacement might actually be a little better on this or that.

    Also, if President Obama picks a real leftie, that can’t really make things worse, but it actually could make things better, if it nudges Justice Kennedy a little to the right in reaction, which seems to be his pattern–he gravitates toward others, seeking “balance.” Yes, theoretically, the new pick could actually appeal to Kennedy, but–that’s very hard to see.

    So it seems the most likely outcome is no change whatsoever; the second-most likely (and not that likely) is a slight improvement.

    The other reason this may actually be good: now the White House and the Senate will focus a fair amount of time and energy on this–instead of other things that might actually mean more, actual change here-and-now. All time spent on this is time not available on new legislation, that actually can change things for the worse.

    It’s always been rather unrealistic to expect the Supreme Court to overturn Roe, just because of the assumption that you can somehow get what you want from the Senate one way, that you know you can’t get the other way. The same Senate that approves justices, can vote for prolife legislation. How’s that record been? They — and the House — have done the bare minimum and guess what? That’s the same tack the Supreme Court has taken, allowing just minimal restrictions on abortion.

    We have to stop hoping for trick plays and do the hard work of getting things done in Congress. And, yes, you can overturn Roe in Congress! If more prolifers would focus on that, maybe we’d make more progress, instead of pining away for the Supreme Court to do it.

    RBrown: With respect, it’s a bit much to give the GOP credit for Alito and Roberts as prolife, when they haven’t yet voted to overturn Roe; and then, only a few lines later, to sidestep the fact that GOP appointees to the Supreme Court have actually, repeatedly voted for Roe: the original Roe Court was mostly Republican-appointed, and when the Supreme Court upheld Roe in the 1992 case, Planned Parenthood v. Casey, *all five votes to uphold Roe were GOP nominees!*: O’Connor, Kennedy, Souter, Blackmun and Stevens. Please note that two of these were named by Reagan, and one by Bush (I).

    We hope Roberts and Alito will vote to overturn Roe–but since they haven’t cast that vote yet, how can you know they will?

  33. Sarsfield says:

    RBrown: What evidence do we have that Roberts and Alito are \”dependable anti-Roe votes?\” They have yet to confront the issue. I like to think they are, but then again . . . O\’Connor, Kennedy, Souter . . .

    Greg: the downfall of Western Civilization has already happened. Stop worrying about it. It’s our job to keep the flame burning until the current darkness passes. Read Chesterton’s “The Ballad of the White Horse” to console yourself.

  34. A further thought…

    I can think of one way Souter’s stepping down is a negative. Other than voting wrong on almost everything that mattered, he’s been a total zero. Google his name and “accomplishment” and see what comes up. Meanwhile, both Scalia on the right, and Ginsberg on the left, have made their marks. He refers to his work on the High Court as a “lobotomy” — well, that says a lot about his contribution doesn’t it?

    One advantage of keeping him there–apart from him keeping the seat warm until someone really good could be named (and who knows when that would happen)–is that he’s bare-minimum effective for the wrong causes. He votes and that’s it.

    His replacement, on the other hand, might actually be someone interesting and appealing.

    Nonetheless, I still think it won’t matter very much, and having this distract the Senate for the next few months is really very useful. If certain bad legislation doesn’t get passed in the next few months, it may not ever pass–and this might be very useful indeed.

  35. Patrick says:

    I’m both an attorney and history major…I wanted to respond to wjd’s observation and to make one major point about why overturning Roe v. Wade has been so difficult.

    Some “liberal” justices have gone right, but its been a while. The rule seems to be that any new political movement lacks institutional support and makes mistakes. These institutions include legal associations and law schools. “Liberals” had their problems with justices appointed between 1937-63 since in 1937 the legal establishment was still conservative (by which I mean strictly adhered to the literal text or traditional interpretations of the Constitution), and it took time to change that. “Liberal” disapointments include Justice Frankfurter (Roosevelt)and Justice Clarke (appointed by Truman). Justice Black (Roosevelt) voted against overturning the ban on birth control in Connecticut, and Justice White (Kennedy) voted against Roe v. Wade.

    Since 1965 “liberals” have supported the right of privacy (Roe is considered a subpart of this right) and their thinking has dominated the law schools and the American Bar Association. “Conservatives” that wished to limit the privacy right did not have any organization of prominence until the Federalist Society, and since that was in its infancy in the 1980’s, it wasn’t until after 2000 that you were able to reliably pick anti-Roe justices. The dog that didn’t bark here is that there has been no effective definitively Catholic strain of legal thought emerging from the fairly extensive network of law schools in the US. The legal elite from these schools copied or merged with the dominant trends of the day. The Notre Dame and Georgetown incidents demonstrate this quite nicely, so to conclude, the shakiness of pro-life convictions in justices is no surprise. It trickles up from a lack of pro-life convictions in legal institutions.

    Oh, and yes, the next court nominee will almost certainly be pro-Roe: its a high priority of Obama (from what we can see) and the institutional support is high.

  36. Peggy says:

    We could only hope it would be Doug Kmiec. In spite of his dissembling, I don’t think he’s a radical leftist. I predict Obie must appoint a black woman. Anita Hill would make a political point, eh?

  37. Charivari Rob says:

    “…Unfortunately, however, Bill is available…”

    Not that I’d expect the Obama Administration to consider Bill, but isn’t he still disbarred?

    Taft, he ain’t.

  38. Peggy says:

    SCOTUS would be too constraining, financially and, er, socially, for Bill Clinton. He likes the limelight. Yes, he has that disbarment issue as well. I don’t think any white male is tops on Obie’s list.

  39. Andrew says:

    Why doesn’t a liberal president make the mistake of appointing a sleuthy conservative? Why does it always have to work the other way as it did with Souter?

  40. Deo volente says:

    Fr. Philip, O.P. has an excellent point. This link was filched from The Anchoress. It makes a good point about tying up nominees in Committee:

    Click link here, “Legal Insurrection Blog”.

  41. Gee, aren’t we glad we didn’t wreck the filibuster now? Remember when that was the big cause?

  42. Edmund says:

    The phrase “Dere go da judge” has racist overtones and should be avoided in a Catholic blog.

    [ALL: “Edmund” and “Maureen” are posting from the same IP address. They are surely the same person. When I discover this sort of subterfuge, I lock people out. I don’t like sock puppet tricks or anything like them.]

  43. MargaretMN says:

    Edmund, The reference Fr. Z was making perhaps was before your time. Flip Wilson, a black comedian who had his own TV show in the 70s had a sketch in which he played a judge and the tag line was “here come da judge.” I don’t see how race enters into it since Souter is white. We can’t make any black pop culture references, now that we have a black president?

    On Souter, he was no friend to conservatives, but since he hated his job and was coasting the last few years, he wasn’t much of an activist on the court. Obama will see to it that we have a justice who is an activist, adept at making up case law and inventing rights because that’s his philosophy of the law. It will be much worse. Even if you couldn’t stand McCain in the last election and you wanted to punish the Republicans for ineptitude, venality, or whatever, this was the one reason to vote for them last time. I think he’ll pick a minority or a woman but I’d be shocked if it were Deval Patrick. He’s more of a partisan hack than a legal scholar and the left needs someone who will be adept at redesigning the architecture of our constitutional tradition. Pray for Scalia, Alito & Thomas.

  44. JohnE says:

    I think our justices have too much power. Not only do they make unjust “rights” using reasoning similar to some “Catholic” university presidents, but they have a pretty good say in what type of justice will replace them by retiring during an administration that is likely to appoint someone who agrees with their reasoning on issues that seem most important to them. Perhaps we should have term limits for the judges, or at least an age where they can be retired. The President can have the option to carry through with the justice’s retirement or delay the decision for another 4 years. Or perhaps if one retires they cannot be permanently replaced until after the next Presidential election, so that the people at least have more of a say in the President that will appoint the replacement.

  45. LCB says:

    It isn’t racist, it’s a reference to a very famous event in Baseball history, a sport that Fr. Z has indicated he enjoys a great deal– as any good man should.

    http://vault.sportsillustrated.cnn.com/vault/article/magazine/MAG1082653/index.htm

  46. LCB says:

    For those who aren’t going to check the link, the owner of the astros (who was also a judge), as part of a fundraiser in their stadium, ran a race down the first base line with a political opponent.

    His uniform read, on the front, “Here come da judge” and on the back “Dere go da judge.” It’s since been used as a reference to retiring/dieing judges who were involved in some sort of circus or side show (or turned something very serious into a circus or side show). Why? The man in question also owned half of a circus.

  47. Margaret:

    How many votes do you think the new justice will have? He will have just one, the same as Souter and the other three justices with whom he reliably votes. Yet you seem to think this new justice is going to call the shots. Why?

  48. FOLKS: You might try reading Men in Black by Mark Levin.


  49. MargaretMN says:

    Ah, but Fr. F, don’t forget that the Supreme Court is a *deliberative* body, not just a voting one. And their opinions are what turn case law on it’s head in all areas of the law. A guy who is just watching the clock biding his time until he retires, replaced with a young, activist judge with plenty of fresh ideas about what SHOULD be in this country? I’d say that’s more than one vote. Remember “the right to privacy” is based pretty much on the wording of a few SC opinions. Our constitution is silent on many things, and the “Living Constitution” supporters (of whom Obama is a fervent one) are all pen-poised to fill in the blanks.

  50. Joe from Pittsburgh says:

    So much has been written about the Supreme Court justices and the presidents that appointed them.

    Warren always disappointed Eisenhower.

    There were strong pro-abortion strains in the GOP until after Roe. Nelson Rockefeller expanded abortion in New York State. It wasn’t until after Roe that pro-lifers began to find a home in the GOP and pro-lifers have systematically been forced out of the Democrat Party since the 1960s radicals started taking it over.

    It is true that we don’t know how the “conservative” bloc of Justices would vote if Roe was challenged. I am sure Thomas would vote to overturn Roe.

    People who don’t like the GOP for any reason often point out the results of O’Connor, Souter, etc. What’s going to shape this thing is how long Stevens, Breyer and Ginsburg hang on. Nothing in politics is forever except partisan bickering. Obama is not assured of a second term, either.

  51. Joan Ellen says:

    The bottom line (of the above posts) seems to be: for a sufficient number of justices to reverse RVW will maybe take 100+ years…

    A law of physics says that a certain critical (Fatima said sufficient) mass is needed for an event to occur.

    PRAYERS (critical-sufficient) and GOOD FORMATION (as with the Baltimore Catichism as Fr. mentioned on another post) could result in no ‘customers’ needing the protection of RVW in many less years. We need a miracle, because we would need lots of work (PRAYERS and GOOD FORMATION) from lots of us.

    Fr. uses the words ‘work around’. Can’t we beef up this kind of ‘work around’ while plugging along with our prayers, talk, and hopes for conservative justices. Just a thought.

  52. Obama is implementing his brick by brick anti-Christian agenda. See http://www.frc.org/special/100-days-of-change for more details.

  53. Peggy says:

    One aspect that I think many people miss when thinking about ending legal abortion is that we need our state legislatures to enact laws to restrict if not entirely outlaw abortion, in order to have cases brought before the SCOTUS. It seems that we think too much about our elected officials at the federal level and neglect our state legislatures, where these laws must originate to challenge the status quo. Even the left knows that. We need to concentrate on electing officials in our states that would pursue pro-life legislation and would oppose legislation as those enacting gay “marriage.” Yet, many sit here and blame the GOP congressoids and presidents for not doing anything about abortion. It’s really in the hands of the states.

  54. Patrick says:

    I don’t think it’ll take long to get rid of or gut Roe. We already had the first real limitation on abortion upheld via the partial birth abortion ban. Scalia and Thomas are on the record as being against Roe (see Planned Parenthood v. Casey), Roberts’ wife I believe was involved with Feminists for Life, and Alito’s mother famously exclaimed to the press “Of course he’s Pro-Life!” Not to take away anything from the comments earlier, but I think we should get a clear idea of what’s going on. In 1973 we had 7 pro-Roe justices, and 2 anti-Roe. In 2000, with O’Connor, we had 3 justices against Roe, 1 in the middle (Kennedy) and 5 in support. Now we have 4 against Roe, 4 pro-Roe, and 1 who wishes to limit Roe, we know not yet how far. One more would definitely tip the balance.