WHO WINS THE ELECTIONS MAKES THE LAW:

Suckers for Meritocracy: As the Roberts Court is demonstrating, what really matters in the Supreme Court is the justices’ politics -- not their legal credentials. (Harold Meyerson, 06.26.06, American Prospect)

[T]he Supreme Court has gone from a court with three hard-right justices, two center-right justices, and four center-left justices to a court with four hard-right justices, four center-left justices and one center-right justice – the 69-year-old Anthony Kennedy – who all by his lonesome holds the current balance of power.

The public-policy consequences of the court’s transformation are already apparent. In mid-June, the court abandoned its longstanding “knock and announce” rule that required police both to have warrants and to announce their presence before entering somebody’s home, ruling 5-to-4 that police were no longer required to state their intention to enter. Alito’s predecessor, Justice Sandra Day O’Connor, had taken the position that homeowners' rights trumped the police’s desire to enter unannounced, but the new court – that is, the four hard-right justices plus Kennedy – ruled otherwise.

In another decision earlier this month, the four right-wingers endorsed an Antonin Scalia opinion that would have eliminated the jurisdiction of the Clear Water Act over tens of millions of acres of wetlands, chiefly in western states. The four center-left justices affirmed that jurisdiction, and Kennedy sought to split the difference with an opinion requiring the Army Corps of Engineers to decide what was and wasn’t a wetland on a case-by-case basis. Kennedy’s confusing ruling is the one that counts, but if he is succeeded by a jurist in the Roberts-Alito mode, today’s wetlands may become tomorrow’s Wal-Marts.

A slew of crucial decisions will come down before the court adjourns at the end of the month, but the handwriting is on the wall. The new justices are moving the court rightward, yet a significant share of liberal and centrist political and opinion leaders either supported their confirmation or limited their opposition to them because Roberts and Alito were – in a narrow, professional sense – clearly competent and even excellent at the judge’s trade.

Mr. Meyerson is obviously wrong. What matters is neither a nominee's politics nor his credentials. All that matters is the nominator's politics.

Posted by Orrin Judd at June 27, 2006 4:35 PM