Briefly:
The Democratic leadership in the senate must demand Bush to name his nominee for the seat held by Justice Sandra Day O'Connor before a vote on Judge Roberts' confirmation is taken.
Doesn't that make for a more informed decision on the eventual makeup of the Court?
At first reflection, it may appear to be a bit late to take that approach, with some senators having already stated their vote positions on Roberts, but a tough stand as suggested here CAN still be taken.
I'd be quite surprised if the Senate Democrats didn't think about this already, and if they did, why wasn't there any mention by them of this issue anywhere? It makes one wonder.
Please see below the flip an observation of mine, potentially very critical, regarding even-numbered SC benches, and possible hung juries.
PLEASE RECOMMEND this diary, as the matter is very urgent.
CRITICAL OBSERVATION (IS IT?) REG. AN EVEN NUMBERED BENCH: I am not exactly knowledgeable with the legal remifications of a tie-decision ("hung jury") in the Supreme Court, but think about this apparently important but seemingly ignored fact:
If Judge Roberts is confirmed, then the bench would have eight justices,
an even number. Since that could land the court in a
4-4 tie on a given case, a most likely unacceptable scenario, especially given that the Supreme Court is the last judicial recourse on the land, there will be an extraordinary pressure on the Senate Democrats to confirm the next nominee as soon as possible. I can already hear Rush Limbaugh spewing something like: "Folks, these Democrats, these raging liberals, are holding our judicial system hostage with their un-American partisan bickering". Then, George Bush could nominate an extremely ideological person and get away with it.
If the court's size stays at seven, an odd number, and an acting CJOTUS is picked among those seven, then the court should be able to function until the to-be-confimed appointees are sworn in.
By the way, the October term of the court begins on 10/3/05; calendar (pdf)..
I am not sure exactly what Bush was planning to do on the "hung court" situation if and once Roberts' was to be confirmed sometime this month.
So, in my humble opinion, Democrats should hold a caucus, and INSIST in a unfied voice that Bush should decide and declare his second nominee as soon as possible, and that until then, they will not allow a Senate vote on Judge Roberts' confirmation.
Upon a quick google search, I found this article in Houston Chronicle on this topic: "Before voting on Roberts, insist on second nominee, A to-do list for Democrats regarding the Supreme Court, By JAMES E. COLEMAN JR. and ERWIN CHEMERINSKY.
That article mainly centers around the balance of ideology of the eventual makeup of the court, and argues that this is better served if both the nominees are considered at the same time. They did not consider the "even numbered bench" situation.
I look forward to feedback from legally trained readers as well as others.
Thank you.