A Logical Fallacy?

by Liberty and Power

From the Cato Institute website:

“Sandra Day O’Connor Announces Her Retirement

“Supreme Court Justice Sandra Day O'Connor announced her resignation Friday. Roger Pilon, director of Cato's Center for Constitutional Studies says,"With Sandra Day O'Connor's resignation from the Supreme Court, the extraordinary confirmation battle that was expected with a Rehnquist resignation will be even more intense — O'Connor, after all, has been a 'swing vote' for years."”

I’m not clear why the confirmation battle over the nomination of a justice to replace O’Connor (a ‘swing vote’) should be any more—or any less—intense than the prospective battle over the nomination of a replacement for Rehnquist (not a ‘swing vote’). After all, a nominee is a nominee and is thus, in some sense, fungible, like a dollar bill. There is a caveat, of course, and this is that the politics of the retiring justice may determine in some way the politics of the nominee, e.g., Bush nominates a likely ‘swing vote’ to replace a retiring ‘swing vote’—but is that likely in this case? Or have I missed something?

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More Comments:

Keith Halderman - 7/5/2005

I do not believe that word Souter, who has recently voted twice(Raich and Kelo)that the Constitution provides no real limits on government power, should be used in the same sentence as decent legal judgement.

John Joseph Ray - 7/4/2005

Yes. All the discussion about SDO baffles me
She no longer matters

Tom G Palmer - 7/4/2005

I fail to see how what Roger Pilon stated is in any way a "logical fallacy." It seems that Mr. Brady has indeed missed something.

The replacement of a justice who was identified as a "swing vote" is likely to generate far more intense opposition than the replacement of a relatively more "predictable vote." One side will be more likely to enlist strong emotions to generate resources to throw into the fight, on the grounds that the court will now "lack balance," or "be too far tilted toward one side." Had the announced resignation been Thomas, for example, I doubt that the left would have been as agitated as they will be with the possibility that a vote that occasionally swung in their direction (notably on abortion issues) would be replaced by a justice who would not be likely to swing in that direction.

Roger Pilon's prediction is most certainly not a logical fallacy.

William Marina - 7/3/2005

My understanding is that the Lady will not "officially" resign until a replacement has been decided upon. If there is blockage that might be for a while, and also suggests she might have some "suggestions" as to a noninee to replace her.

Jonathan Dresner - 7/3/2005

If Rehnquist, or one of the other strong conservative justices retired, a Bush replacement with a strong conservative would preserve the current balance of the court (whether that's a good thing or not...) and be politically pretty neutral.

If one of the more liberal justices retired, there'd be strong pressure for Bush to name at least a moderate as a replacement, or face filibusters and highly motivated activist groups.

But O'Connor was appointed as a conservative and turned out to be more liberal than they expected. If Bush can replace her with a more consistent conservative, it solidifies a 5-vote bloc; if he replaces her with a true moderate, it keeps all the issues in play. If he pulls a Souter and mistakenly appoints someone with decent legal judgement, all bets are off.