Reports are now noting that President Bush and the Republican Congress have lost another battle they ordinarily would have won, as Samuel Alito's SCOTUS hearing has been pushed back to January 9:
"It simply wasn't possible to accommodate the schedule that the White House wanted," Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, said late Thursday. He outlined a schedule that envisions five days of hearings, followed by a vote in committee on Jan. 17 and the full Senate on Jan. 20.
Bush nominated Alito on Monday to fill the seat of Justice Sandra Day O'Connor, who has often held the swing vote on cases involving controversial issues such as abortion and affirmative action.
Conservatives eager to replace O'Connor and push the court to the right have swung behind Alito's nomination, and in making the appointment the president urged the Senate to vote this year.
Democrats, citing a need to review the voluminous record that Alito has compiled in 15 years as a judge on the 3rd U.S. Circuit Court of Appeals, favor waiting until the new year for the beginning of hearings. The 55-year-old judge has written an estimated 300 rulings and participated in roughly 1,500 cases.
This isn't earth shattering national news, although it's fairly amusing to read the GOP's spin that a delay between hearings and votes over Christmas would hurt the nomination, and that it will give Bush something good to talk about when the next State of the Union rolls around. But what's notable as a result of this timetable is that Sandra Day O'Connor's going to get the chance to hear plenty of cases.
For every case that she sits in on from now until then, Chief Justice Roberts has a choice: go ahead and issue a ruling with only eight members, or rehear the case once the new Justice is seated? One imagines that for the noncontroversial cases where O'Connor wouldn't be a decisive vote, he'd go ahead and let opinions be written.
But what about a case like Gonzales v Oregon? Not only is that one likely to be razor-thin, O'Connor could well be expected to cast a deciding vote. Furthermore, it's already been heard with O'Connor seated, and by now a private vote has been taken--although the opinion could take months to be written and released. One helpful factor for Oregon is that if the vote came out to uphold the lower court's blessing of Death With Dignity, it could well be that O'Connor would write the majority opinion--and she tends to be a quick writer.
The Oregon chapter of Compassion and Choices, an end-of-life advocacy group in support of Death With Dignity, offered this musing on what might happen if Roberts had not been seated. The situation is somewhat different as concerns O'Connor, but the principle is the same. USAT has an earlier, broader analysis specific to O'Connor, but less specific to Gonzo v OR.
The chapter president of C&C was out of the office this week, but I was apparently the first to let them know the hearing schedule for Alito had been set. They took it as good news, for what that's worth. They offered to get back to me with comment as soon as they could. I'll post an update if/when they do.
--TJ
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