July 03, 2005
Interaction Effects and the Supreme Court
Posted by Gordon Smith

I began watching Supreme Court nominations after working as an undergraduate intern in the U.S. Court of Appeals for the DC Circuit in 1985. At that time, the inside scoop was that two judges from that court would be nominated to the Supreme Court by Ronald Reagan: Antonin Scalia and Robert Bork. The only question seemed to be, who should be nominated first?

The Reagan team answered that question by opting for Scalia at least partially because he is younger than Bork and was thought to be in considerably better shape, thus increasing the likelihood that he would have a more lasting influence. What if the order of nomination had been reversed? Robert Bork would now be sitting as an associate justice, and Antonin Scalia's confirmation would have been a battle that we would all remember, though I suspect that he would have been confirmed where Robert Bork failed. (It's hard to even imagine how that might have changed subsequent nominations.)

With the resignation of Justice O'Connor and the expected resignation of Chief Justice Rehnquist, it is possible that the most important issue in the confirmation battles will be the interaction effects of the nominees. (As if we can truly predict how nominees will vote once confirmed! Or even be sure that sitting justices won't shift!) For example, how would a Luttig-Gonzales package compare to McConnell-Jones? Certainly, if Rehnquist resigns this summer, consideration of the cumulative effect of two nominees will be at the front of the debate. If Rehnquist defers for a year, however, the calculus could change dramatically.

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