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October 4th, 2010 12:51 pm
U.S. Supreme Court is Back in Session

It’s the first Monday in October which means that the Supreme Court of the United States (SCOTUS) is back in session.  Uber-liberal constitutional law expert Erwin Chemerinsky is not celebrating the occasion.  Instead, he bemoans the conservative ‘take-over’ of the court and sites as evidence the fact that Republican presidents from Nixon to Bush II made a total of 12 appointments to SCOTUS while only two Democrat nominees made it onto the bench.  (Bill Clinton appointed Ruth Bader Ginsburg and Stephen Breyer, while Jimmy Carter was faced with no vacancies during his term.)

Chemerinsky, the dean of UC Irvine’s law school, singles out 4 of the 12 appointments (John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) as proof of the conservative ascendency.  But for conservatives a success rate of 33% is hardly a victory; especially when considering that both of President Barack Obama’s SCOTUS appointments replaced Republican nominees, yet didn’t alter the conservative-liberal voting patterns.  Gerald Ford appointed John Paul Stevens, a man who ended his tenure as the leader o the court’s liberal bloc.  Bush I appointed David Souter, a justice who voted in lock-step with Stevens and the court’s other liberals.

True, Bush I gave us Thomas, and Reagan hit a home run with Scalia, but Reagan also put soul-crushing moderates like Sandra Day O’Connor and Anthony Kennedy on the bench; two people who repeatedly frustrated conservatives on issues across the political spectrum.  Ironically, at least to some, is the SCOTUS legacy of Bush II who made solid conservative appointments with Roberts and Alito.  That these two often team with Thomas and Scalia (and manage to cajole Kennedy to heed his better angels) is more the result of a historical accident than a carefully executed strategy.

Imagine the kind of country we could be enjoying had Republican presidents from Nixon to Bush I had a conservative justice success rate of 66% rather than 33%.  As it is, since at least the Eisenhower Administration (Earl Warren, William Brennan) liberals like Chemerinsky have benefited handsomely from liberal appointments by supposedly conservative GOP presidents.

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