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Originally Posted by O'Sullivan Bere
Some might do that, especially the political partisans out there, but the objectives and motivations for saying so quite transparent and, in this case, not credible. Such attack would be political in nature rather than what is in the best interest of the judiciary and its interests. The sales pitch that Scalia, Thomas, Roberts and Alito would be out to help someone suspected to be ideologically generally 'on the left' and someone they are reversing in that case is asking people to believe oil and water mix.
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I disagree. Indeed, under your proposal they would be withholding the decision to keep it out of her nomination hearings as an issue. It is quite easy to see that as motivation to "help" someone regardless of their reasons. Besides, it is quite possible justices "on the right" can think someone "on the left" a fine judge worthy of confirmation regardless of whether or not they would vote to overturn her decision in a particular case. I mean, there's no doubt Souter's replacement is going to be from the left whether it's Sotomayor or not.
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In fact, wanting the decision rendered beforehand hurts the cause of anyone opposed to Sotomayor on political/ideological grounds. Had the court followed the protocol to avoid the mere appearance of propriety by simply deferring the decision until after Sotomayor is either confirmed, withdrawn, or denied, the conservative justices would have gotten integrity points with all the fair minded, and partisans on the left who would begrudge them on that score would be banging a hollow drum.
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I'm not aware of any protocol of withholding decisions involving a nominee at a lower level.
Couldn't it certainly be argued that the "right" thing to do would be to proceed normally with the case -- neither expediting it or delaying it? That, it seems to me, would be the objective, non-partisan course. If they didn't speed up the decision here in order that it become an issue at the nomination hearings, I don't see a problem with the timing.
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It also wouldn't have made a difference in the outcome. Similarly, Sotomayor would have had to recuse herself by the same common expectation of avoiding the appearance of impropriety given she was part of the decision under review. That would have made the decision a 5-3 case, a better result for the majority opinion viewholders. So, a 'two fer' was missed from a partisan standpoint. Instead, the 'right' will just get accused of chicanery from the right wing members of the SCOTUS, Congress and their supportive pundits and others concerning her impending confirmation hearings.
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It seems you've just introduced another reason why the right course would be not to delay the ruling. It doesn't seem appropriate to me to forestall a ruling in order to increase your vote advantage. Would that be OK with you? And if they did delay it and obtained such a vote advantage couldn't they be subject to criticism for that? (mere appearance of impropriety)