July 13, 2005
The Supremes
You can have his gavel when you can pry it from Rehnquist's cold, dead hand...
As both national parties continue to lock and load for the upcoming nomination to succeed Justice O'Connor, we may get two, two, two nominees for the price of one, as Chief Justice Rehnquist heads back to his reserve suite at the local hospital.
There cannot be much doubt that Rehnquist has seen his last Supreme Court term. Given his health struggles, it's frankly unfair to the Court and thost petitioning it to continue, with his repeated health crises creating the possibility of delays and even forcing a possible tie verdict if Rehnquist were rendered unable to finish his term.
If the Bush Administration has an inkling of this, it may be wise to hold back on the announcement of the first nominee. If Rehnquist announces his departure very soon, the White House has a chance to send three nominations to the Senate at once - two new Justices, and a new Chief Justice. This would allow the President to put forward a very strong hand, and a nominee the Democrats may oppose can draft off of a less controversial nominee.
For instance, the President could nominate a Senator for cover, a strict conservative for punch, and nominate Scalia for Chief Justice of the United States as the kicker. We think the nomination of a Senator is a seriously effective innoculator - our favorite would be someone like Orrin Hatch, though his age at 71 may make his name less attractive. He's a doubtless conservative, served on the Senate Judiciary Committee, has a law degree, and as a respected Senator, is a guaranteed grease-in for the slot. Scalia is ill-considered by the left, but his intellectual prowess is well known on both sides, and having already been confirmed, he is unlikely to draw serious opposition. Which leaves the other nominee - here, Bush can go to his base, and choose a strong, strict constructionist. Or, he can choose someone like Ted Olsen, former Solicitor General.
The Democrats would be in a hard position - the public isn't going to tolerate a Supreme Court fillibuster that keeps a justice off the bench in November, no matter how loudly the Democrats scream about Roe v. Wade. Now, they might take the opportunity to make a stand against the least favored nominee. But, the nominees together will have momentum, momentum that will be difficult to oppose effectively. Democrats are best advised to keep the powder dry on these nominees, and make a stand when Ginsburg or Stevens retires. The public will be in a far more receptive frame of mind when a liberal member of the Court leaves, isolated from other Court events, and the natural momentum will be working in the Democrats favor, not against.
However, the Democrats must be sure should they decide to make a stand. John McCain reportedly told a fundraiser that
"'during the campaign, President Bush said he will appoint judges who will strictly interpret the constitution... thinking anything else is either amnesia or ignorance... elections have consequences... whomever he nominates deserves an up or down vote and no filibuster... and an up or down vote is what we will have."
If the quote is accurate, it's first and foremost a brilliant move by McCain. There will be no better way for McCain to confirm his conservative Republican bona fides than going to the mat over a conservative Supreme Court nominee. Frankly, he can guarantee his nomination in 2008 were he to do it. It also fits McCain's personality to a tee - McCain may be more fungible in his politics than some conservatives, but he prefers to retain power in the House and Senate. Pragmatists like McCain want to retain the power to affect issues in the legislature rather than the courts. It also spells doom for the Democrats, who have in the past been happy to let McCain develop as something of a marker of the rational middle - it can work to make Bush seem off to the right, but in this case, will work effectively to put Democrats on the wrong side of independent voters.
And don't rule out Fred Thompson as a possible nominee, the former Senator from Tennessee. He was chosen to head up the nomination process for Sandra Day's replacement. If you'll remember, Dick Cheney was selected to help head up the Vice Presidential nomination process as well...
Posted by MEC2 at July 13, 2005 11:11 PM | TrackBack