Liberals Should Want Rehnquist to Retire Too

Anonymous

First – thanks to Jack for asking me to guest-blog on Balkinization. For those who don’t know me, I tend to focus on constitutional law in the rest of the world, and more recently on international developments in the anti-terrorism campaign. I have been teaching at the University of Pennsylvania Law School for most of the last decade, but today I officially start in my new position as Director of the Law and Public Affairs Program at Princeton, and as Professor of Public Affairs and the University Center for Human Values there.

While my posts will largely be on comparative constitutional law and the global part of the war on terrorism, the news of the day is irresistible and of course talk of Sandra Day O’Connor’s retirement is first on everyone’s lips.

Of course, most commentators predict a bloodbath to come. Speculation about Rehnquist’s retirement spurred such discussions, even though replacing him with a conservative appointment would have far less impact on the Court than replacing O’Connor with someone more steadfastly conservative in outlook. We can all imagine that the confirmation battle won’t be pretty.

What should liberals wish for under these circumstances? At this point, I think that liberals should wish for Rehnquist to step down too.

Why? We can learn something here from a comparative approach. Many high courts around the world have fixed terms of office for Supreme Court or Constitutional Court judges. Such fixed terms (generally with mandatory retirement ages as well) tend to make the replacement of high court judges very predictable. When it is clear what the replacement schedule of judges will be so that one can see over the horizon to the next judicial appointment, politics can insert itself into the process in a more constructive way than it presently does in the US system.

How? It’s called log-rolling. If a parliament has to vote for multiple judges in predictable succession, then one logical thing to do is to give the various factions with blocking power appointments of their own in exchange for agreement not to gum up the works for the others. In Germany (see here) and in Hungary (see here), two countries with such systems, it is quite common in practice (though not required by law) for sets of judges to be appointed at once. When that happens, different political factions jockey to have their preferred candidates put forward, and the winning set of judges is achieved by various political side-deals across different parts of the political spectrum. This has the salutary effect of making the group of judges more representative of the underlying political map than they would be if they were chosen one by one. Of course, it helps to have more than two parties in working out what the relevant political factions are and in carrying out the bargaining. But even in a two-party system with diverse coalitions of the left and right organized into single parties, it may be possible for factions to form to ensure that two appointments to the Supreme Court made at the same time do not reflect the same constituencies.

This has already happened in the deal struck by Senate moderates to avoid the nuclear option several weeks back. Their deal involved just such a log-rolling bargain. Some of Bush’s candidates got through and others were blocked. Had the candidates come up individually (in “an up-or-down vote” on each), then the majority would have voted them all through. Taking them as a package and making a political deal about that shape of the package moderated the outcome away from the extremes.

So – liberals should want Rehnquist to step down now. If there were two justices instead of just one to replace this summer, then it might be possible to strike a moderating deal even around the too-hot-to-handle topic of Supreme Court nominees. But if the rest of Bush’s term features only one Supreme Court replacement at a time, then it is far more likely that the Court will take an even sharper turn to the right than it would if justices were appointed in package deals.