Supreme Court update

I mentioned before the election that the most important issue for me was the Supreme Court. So (although I know many of you must be sick of the election) let’s look at the election’s implications for the Court.

Obviously, we still have a president committed to appointing justices who will stick to the Constitution and strict interpretation of the law. But now, in addition to a strong margin of victory, he has more senators to back him up. (The Senate must confirm his judicial appointments.) There’s been talk that he still doesn’t have the 60 Senate votes necessary to break any filibuster against his Supreme Court appointments. But I wouldn’t be so sure.

First, the ringleader of the judicial filibusters, Minority Leader Tom Daschle, is gone. And his obstructionism was a big issue in the campaign to beat him. That surely gives Democrats from swing states pause. Second, the new Minority Leader, Senator Reid of Nevada, is a more moderate and reasonable man than Daschle.

Third -- and this is overlooked -- a filibuster against a Supreme Court nominee will be much more visible to the voting public than the past term’s filibusters against appellate nominees. To filibuster a President’s Supreme Court nominee would be a high risk tactic that has never been attempted before (Please correct me if I’m mistaken on that.) and would likely inflame the American voter. A number of Democrats will think twice before risking their careers to support such obstructionism.

There is now extra incentive for the Supreme Court itself to exercise restraint. 11 states, even liberal Oregon, overwhelmingly approved referendums opposed to gay marriage. The Massachusetts rulings mandating the legalization of gay marriage in that state have had a surprisingly strong backlash. Many think that even had a big effect on the presidential election. I’m not so sure, but it certainly didn’t hurt President Bush.

If the old saying that the Supreme Court reads the election returns is true, then they are surely taking note of the wave of votes against gay marriage. In any case, they now know they would have to run roughshod over the American voter to legalize gay marriage. If this Court has any concern over its own legitimacy – and it should and it does – they may be hesitant to legalize gay marriage by judicial fiat regardless (for once) of their personal views. Maybe they will be more restrained on other social issues as well.

We’ll see. In any case, I am certainly more optimistic about the Supreme Court than I was even two weeks ago.