Who would function as the new SCOTUS "swing vote"

[elperromagico]

in the likely case Roberts is confirmed?

It's unlikely to be Souter, Stevens, Ginsburg, or Breyer.

It's equally unlikely to be Rehnquist, Scalia, Thomas, or Roberts.

That gives you a 4-4 split.

Who then is the new swing vote? Is it Kennedy?

[Strawman]

1. Kennedy

Possibly Roberts. But I suspect he is to the right of Kennedy, probably pretty close to Rehnquist maybe a bit to the left of him. Best case scenario, Roberts is about the same as Kennedy.

[tedoll78]

5. Yup.

I know this won't be one bit popular here, but a Kennedy-like judge might be our best hope out of Bush. He'll be a corporatist, for sure, but socially he might be a bit more moderate. For example.. many people forget that Kennedy was the one who authored the quite liberal (relatively, of course) Lawrence v Texas sodomy law decision. If Roberts is of the Kennedy mold, I'd say that privacy advocates have dodged a fatal bullet, sustaining instead a flesh wound..

[tedoll78]

2. Kennedy.

And I have my own personal crazyman theory about this.

Since the four "liberals" vote as a block usually, all they needed to prevail was either Kennedy or O'Connor. Despite being a court of 7 Republican appointees, the liberals succeed so often in the vote count because the were so adept at coaxing one of those two swingers into their column. To sway one of the swingers to their side, they'd usually let the swinger author the majority opinion so that the writer is as comfortable as possible in siding with the liberals.

My theory now is that Kennedy will write a much larger percentage of the majority opinions, and that - with four justices pulling him on each side in opposite directions - we're going to see very "moderate" rulings authored by Kennedy that make neither side truly happy. The liberals might technically win cases 5-4 with Kennedy, but the rulings' texts will be so watered-down since they had to make concessions to Kennedy, that the rulings would be much less significant. Same for the conservatives. No real strides will be made in either direction until something big happens to the court.

This only serves to make 2006 & 2008 more critical. Kennedy might get tired of the pressure and decide to step-down. Or maybe a court member on either side passes away in his/her sleep overnight, throwing the court entirely off-balance in one direction or another. The bottom line? We need the Senate or White House - ASAP!

[TahitiNut]

3. Kennedy. Roberts is virtually identical to Rehnquist.

:shrug:

[PatsFan2004]

4. Probably Kennedy.

I have read posts stating that Kennedy tended to follow O'Connor in a lot of cases. If Roberts is persuasive as a conservative to Kennedy, the SC would definitely swing to the right. Rehnquist and Scalia are too far right to persuade Kennedy. Can Souter, Stevens, Ginsburg, or Breyer show some intellectual gravitas and persuade Kennedy?

[elperromagico]

7. I'm sure you've heard that Kennedy was "almost persuaded"

to vote for Gore in Bush v. Gore.

Of course, if he had been persuaded, we might not be worrying about John Roberts right now.

[tedoll78]

8. Wow. That gives me a new theory.

He might feel guilty about it. Which means he might want a Democratic president to replace him, sorta as a penance. It wouldn't make things totally right, but could you imagine the right-wingers going nuts over that one?

Hmm..

[navvet]

6. I vote for Kennedy also

:dem: