John Dean (Conservatives Without Conscience) writes in FindLaw that Democrats can't waver here: (h/t JR)
"It has been two decades in the making, but this is the year Justice Antonin Scalia, the Supreme Court's most outspoken dissenter, could emerge as a leader of a new conservative majority," reports David Savage, legal reporter for the Los Angeles Times. Savage says that the Court will soon issue rulings relating to race, religion, abortion and campaign finance "where Scalia's views may now represent the majority."
David Savage's analysis is a reminder that the High Court is closer than ever to a conservative tipping point. Today, the conservative bloc consists of Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. The center-left justices are John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
Associate Justice Anthony Kennedy is the swing vote - and often a right-leaning one. However, Kennedy has been surprisingly liberal on issues such as gay rights - as represented by his opinions in Romer v. Evans and Lawrence v. Texas. In addition, he voted not to overrule Roe in Planned Parenthood v. Casey.
What if Stevens, Souter, Ginsburg or Breyer should leave the Court during the remainder of the Bush Presidency? Bush would very likely opt to select another conservative, and create a conservative majority on the Court. This prospect makes conservatives salivate, and liberals shudder.
[..]If fate were to open one of these center-left seats on the Court, Senate Democrats should immediately advise the President that they will only consent to a nominee who is a moderate.
Indeed, they should make crystal clear that if Bush, a lame duck president, sends another rock-ribbed conservative nominee who will clearly tilt the Court, they will leave the seat vacant until the voters have spoken as to whether they want a solid conservative Court. (A vacant seat would certainly raise the already high stakes of the 2008 presidential race, and while it would put a burden on the other justices, it would only be temporary.)
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