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July 07, 2005

The 2+Scalia Scenario

Novak is reporting that Rehnquist will step down tomorrow morning, creating a two seat vacuum on the Court. That, as it happens, is the subject of a provocative article penned by Loyola Law professor Richard Hasen in today's TNR. Hasen argues that a double-retirement is the best liberals can hope for. Currently, Bush will have to replace O'Connor with, more likely than not, a non-Gonzales conservative* -- he owes the Christian Right too much. Democrats, then, would likely have to filibuster the nut he comes up with**. Nuclear option hits and who knows what happens, save unheard of partisan bitterness.

A double-retirement is different, though. Gonzales goes up, but so does Luttig or McConnell. Indeed, I'll go one step farther and say Bush'll move Scalia to Chief Justice in addition to nominating a hardliner in order to quiet opposition to Gonzales. Democrats, feeling safe that the Court won't change, don't filibuster. Conservatives, getting Scalia and a favored son, don't shriek. Balance returns to the force.

Assuming Gonzales is the squishy con the right seems to believe, that's not a bad outcome. In effect, the Court remains unchanged. Under a president with the ideology and indebtedness of Bush, that's the best Democrats can hope for. Indeed, I'd actually like to see Scalia become Chief Justice. As one of nine, his nuttiness is largely filed away in the oddball category. Elevate him to head of the Court and his utterances and musings enter scrutiny, and when a hard conservative is saying things like "[m]ere factual innocence is no reason not to carry out a death sentence properly reached", that can only be good for Democrats.

*The goal posts have been moved pretty damn far for Gonzales to be the reasonable choice. And we're not just talking about squishy moderates like me, even Kos is hoping for him.
**In fact, I could see Bush going for the craziest judge in the country in the hopes that Democrats reject him, fire up Dobson, and Bush can shrug his shoulders and nominate consensus candidate Gonzales

July 7, 2005 in The Supreme Court | Permalink


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» Scylla and Charybdis from Grammar.police
With the rumors mills abuzz with the pre-story that Chief Justice William Rehnquist will retire before lunch, the science of SCOTUS analysis has broadened to a full-bore multivariable calculus. Josh Marshall sees an advantage for Democrats: In short, i... [Read More]

Tracked on Jul 8, 2005 12:53:22 PM

» SCYLLA AND CHARYBDIS from Begging To Differ
With the rumors mills abuzz with the pre-story that Chief Justice William Rehnquist will retire before lunch, the science of SCOTUS analysis has broadened to a full-bore multivariable calculus. Josh Marshall sees an advantage for Democrats: In short, i... [Read More]

Tracked on Jul 8, 2005 12:53:35 PM


Reality mirrors West Wing once again. Although in TV-land, we got a winger Republican and a unapologetic liberal; in reality, we get a winger Republican and a conservative.

Posted by: Stoffel | Jul 7, 2005 6:46:31 PM

I've had the paranoid suspicion for the last few days that religious conservatives have been protesting Gonzales as part of the administration's plan to make Libs feel relieved when he gets the nomination.

Posted by: Roxanne | Jul 7, 2005 6:46:56 PM

Kind of a Kerry-goes-for-Gephardt deal?

Posted by: Ezra | Jul 7, 2005 6:50:47 PM

Yes, Ezra. But more like a Rove is always 10 steps ahead thing.

Posted by: Roxanne | Jul 7, 2005 6:58:41 PM

Yes, Ezra. But more like a Rove-is-always-10-steps-ahead thing.

Posted by: Roxanne | Jul 7, 2005 6:59:09 PM

Maybe Bush will nominate Brown and Owen. Let's see the Democrats filibuster same two women that the same senate approved to the federal bench two months earlier.

Good luck convincing Joe Twelve-Pack that is not hypocritical.

Posted by: Captain Toke | Jul 7, 2005 7:30:17 PM

Personally, should W nominate McConnell, I'd be happy. Even though McConnell is pro-life, the man's a damn good jurist, respects the doctrine of stare decisis (unlike, say, Sam Alito), and dollars to dimes would end up moving to the center anyway.

But I'm not going to hold my breath, because most every liberal group will focus on Roe and Casey to the exclusion of everything else, to include present reality, and sink McConnell.

My guess? W nominates Brown, Jones, Clement or Owen for the SDO'C seat and, should Rehnquist really step down tomorrow, Gonzo gets the nod for Chief.

Posted by: Raf | Jul 7, 2005 8:00:50 PM

Maybe Bush will nominate Brown and Owen. Let's see the Democrats filibuster same two women that the same senate approved to the federal bench two months earlier.

Good luck convincing Joe Twelve-Pack that is not hypocritical.

First off, Joe Twelve-Pack doesn't care, it's just all of us political wonks. Second, they didn't get there with Democratic support and it could be very easily argued that the Supreme Court is a lot bigger enchiladas than the appeals court.

Of course there is will be spun like crazy no matter whom is at the wheel.

Posted by: DemDude | Jul 7, 2005 8:07:01 PM

And what reason, exactly, do we have to think that Al Gonzales of torture memo fame is squishy at all? We have a couple instances - or was it one? - where he upheld the law in a parental notification case. That doesn't make him a moderate, or a moderate conservative, or even an "old-fashioned conservative" of the type liberals seem to be pining after so often these days. That makes him a guy who wasn't willing to flip over precedent at the drop of a hat on a State Supreme Court. As a US Supreme Court justice, he'd be setting precedent for those lower courts. Given the fact that his most famous legal opinion involves setting the president above the law, I'd really rather not trust him with the most powerful court in the country.

Posted by: Iron Lungfish | Jul 7, 2005 8:13:10 PM


If Joe Twelvepack thinks the Dems are opposing the nominee cuz they will oppose anyone Bush sends up, that will be a few more percentage points peeling off the Democrats vote total. The senate Democrats need to convince Joe Twelvepack they are opposing the nominee for Joe Twelvepack's good, not just to obstruct(Tom Daschle). And it is going to be hard to convince the public that they weren't extreme enough to filibuster before, but they are now. Plus all the nominees have the highest possible rating from the ABA.

Please, someone, justify why it is OK to filibuster Brown or Owens now but not then.

If it looks like the Dems are obstructing just to obstruct, more of them could be put out of office(Tom Daschle) in 2006, and that is the last thing the Dems need right now is to lose more congressional seats.

'the stickiest of the icky'

Posted by: Captain Toke | Jul 7, 2005 8:55:49 PM

It is ,indeed, the sweetest scenario possible and one that Bush will be unable to resist.
Why "bad" now, but "good" just a few weeks ago?


Posted by: Robert Zimmerman | Jul 7, 2005 9:13:05 PM

The simple answer is that they are not acceptable now because they fail to meet minimal scrutiny of experience on the federal bench. The Democratic attack against them both won't be that they are too far to the right, it will be that they are basically unqualified. Joe Sixpack may or not understand a whole lot about politics but they understand that you don't promote trainees to manager before they ever work a shift. If Bush nominated both of them and the dems played it correctly, Bush would end up forced to nominate 2 moderates after both nominees failed, making him appear weak and the dems strong.

Posted by: Jamie | Jul 7, 2005 9:25:42 PM

No offence Ezra, but relying on Gonzales to be a "squishy con" counterweight to a loony right judge has to be the stupidest thing I've heard since Living Marxism argued people shouldn't give to charity in order to aggravate poverty, thus hastening the revolution.

As has been said above, there's very little evidence that he's a moderate, except in the trivial sense that he doesn't want to ban abortion immediately under all circumstances, which is setting the bar rather low if you ask me. But more importantly, especially in the big picture of America's slide into authoritarianism and absolute executive power, he's the arch proponent of presidential monarchy. You want to declare American citizens enemy combatants and throwing away the key? No problem, George. Torture? I didn't see it. And if I did, it doesn't matter anyway! Maybe I can only say this because I'm not a woman, but I find Gonzales at least as scary as a Dobson-friendly nominee.

Posted by: Ginger Yellow | Jul 7, 2005 11:44:40 PM

Guys, if you think, under this president and this senate and this Christian Right, anyone squishier than Gonzales is going through, you're smoking from Capt. Toke's stash. O'Connor was a conservative. A real one. She just wasn't nuts and she had some respect for past precedent. Gonzales may indeed be similar, if past comments (he may not like Roe, but it's the law and it should be upheld) are serious.

Gonzales, in the end, is the only one Bush may choose that has a chance of being semi-moderate, as friendship may outweigh Dobson for the president. Anyone else is coming off the Christian Right's shortlist.

Posted by: Ezra | Jul 8, 2005 12:05:48 AM

Gonzales believes that the president is above the law and can imprison whoever he wants in the interests of national security as determined by- the president. He's a fascist. You think a fascist can't be in favor of abortion?

Posted by: JR | Jul 8, 2005 12:55:26 AM

We'll end up taking whoever the Administration puts up. What in the past five years convinces anyone that the Lieberman band won't sell out the party come hell or high water?

Beyond that, we're talking about what rights we are most comfortable putting at risk. If you're OK with putting basic civil liberties like the right to trial up for debate, Gonzales is our best bet. If you think abortion rights are least at risk, people like Luttig or McConnell don't look so bad. No matter what, we're slightly more screwed than we were before.

Posted by: SomeCallMeTim | Jul 8, 2005 1:05:50 AM

A couple quick points:

1)In the unlikely event that he promotes from within, I'm betting on Thomas, not Scalia.

2)I think it's important not overstate Gonzales' putative moderation. All we know about his abortion jurisprudence is that he's not willing to nullify state laws like Owen; he could well be a vote to overturn Roe. And his positions on war powers issues are about as appalling as you can get.

Posted by: Scott Lemieux | Jul 8, 2005 1:40:11 AM

Ezra, as squishy as you believe Gonzales to be (on cultural issues, presumably), he appears to be to the right of Scalia on authoritarianism (Read Scalia's opinion on Hamdi. He may be a right wing nut, but Scalia still believes we exist within a democracy, while Gonzales has been the point man in advancing this administration's most odious crimes against freedom). In wartime, with issues like Gitmo, torture, and extraordinary rendition still very much unresolved, do you really want to put a supporter of an imperial executive on the high court, all on the slim chance that he's not a vote against Roe?

George Bush has appointed 200 anti-Roe judges in the last four and a half years. The notion that he'd let a Souter slip by on the way to the Supreme Court - when he has every incentive to heartily pay back his base, and when he's self-consciously trying to avoid and react against the perceived shortcomings of his father's administration - is naive in the extreme. An anti-Roe justice is a given at this point. Let's hope for someone who doesn't throw out the rest of the constitution, too.

Posted by: Iron Lungfish | Jul 8, 2005 2:07:00 AM

Just 'cuz Dobson hates Gonzales doesn't mean that I have to like him.

Why not use this appointment to make common cause with the religious right for a change? They don't like Gonzales because he's not sufficiently committed to the dignity of pre-born human life. We don't like him because he's not sufficiently committed to the dignity of post-born human life. Politically, it can't hurt to let the rest of the nation see how committed to the "culture of life" the Washington Republicans really are. And on principle, I'd say that issues where Gonzales is clearly in the wrong -- the separation of powers and the rejection of state-sanctioned torture stand out in my mind -- trump Roe.

Posted by: Thurston Domina | Jul 8, 2005 9:22:10 AM

Gonzales is a war criminal, and his position on torture negates any positives about him, like what he might think about Roe--and we don't even know how pro-abortion rights he is.

We are going to end up with an ultraconservative on the bench, one way or the other. Ezra's right about that. But it's not a choice between a "squishy" conservative and an extreme conservative. It's a choice between several extreme authoritarian conservatives, of whom Gonzales is one. He's not any better than any of the others, and we'd best not make the mistake of thinking he is.

Posted by: Linnet | Jul 8, 2005 9:27:01 AM

a few thoughts:

- It's possible there could be three (Stevens) or possibly four (Ginsburg). At that point, the notion that there's some triangulated best case scenario seems to me to go out the window.

- I don't think there's any reason, aside from a misplaced sense of hopefulness that Bush's logic looks like what some thnk it looks like, to believe that Bush or Rove or other senior Administration folks much care whether Dems like the nominees or not. They can appoint a Gonzales or they can appoint Luttig, McConnell and Roberts and let the chips fall where they will. There's nothing to suggest that they prefer doing the former.

- I think Democrats should worry less about the obvious hot buttons, focus on things (like property rights) where the right's thinking is less uniform, and remember that conservative judicial hardliners are fundamentally wrong. They will never get what they want, because Americans will not submit to the kind of judicial tyranny they envision - a judicial tyranny that's the opposite of a fantasy notion of the "liberal court" they've been opposed to all along. We're most in trouble if we agree to their terms.

Posted by: weboy | Jul 8, 2005 9:29:20 AM

"when a hard conservative is saying things like "[m]ere factual innocence is no reason not to carry out a death sentence properly reached", that can only be good for Democrats."

... not so good for the innocent man, though.


Posted by: Ed Drone | Jul 8, 2005 10:38:15 AM

------"they are not acceptable now because they fail to meet minimal scrutiny of experience on the federal bench.

O'Connor: 0 years experience on federal court before her nomination to SCOTUS.

Rehnquist: 0 years experience on federal court before his nomination to SCOTUS.

Souter: Less than 1 year experience on federal court before his nomination to SCOTUS.

The senate can't filibuster cuz of lack of experience. There also is no way the senate can force them to answer how they would vote on an abortion case or gay marriage. Check out the Clinton nominee hearings.

Let me give you the rights veiw on Gonzalez-I by no means represent the right, I just sit around and smoke weed all day, but as soon as they(the Navy, the GOP, whoever) need a stoned captain, Ahoy!

The right doesn't trust Gonzales not to turn liberal. Of the lists I've seen, given his history(a few questionable decisions), he is the most unsteady.

The right has put it's people in office the last three elections and the base feels we are due a conservative who will follow the constitution. To be honest, it will be a gift to the left if Gonzales gets the nod.

One more thing, the Republican base is not the 'Christian Right'. Some of it is but most are just family oriented people who respect Christianity. I am a perfect example, most of my extended family are devout Christians, but I am the most politically active. I go to church maybe 8 times a year, but I have a healthy respect for devout people. By the way, most Christians I know or run into are alot more tolerant than athiests, feminists, gays who know you're a Christian, etc.

If the 'Christian Right' had that much power in the party, Gionzales would not even be on the table.

The way the question is asked:

'Is it OK to smoke a joint while praying?'
I don't know, it sounds kind of sacrilegious to me.
'Is it OK to pray while smoking a joint?'
Of course it is OK, it is OK to pray any time.

Posted by: Captain Toke | Jul 8, 2005 11:08:32 AM

What a sad state of affairs we've reached when a torture monger like Gonzalas is considdered a moderately conservative candidate for anything. If our choices are between garden veriety nutcases and frothing-at-the-mouth lunatics, we loose either way.

Posted by: Keith | Jul 8, 2005 12:13:26 PM

Hey, let's get real here.

Clinton had an opportuinity to pick 2....Breyer and Ginsburg. Both are to the far, far left and we all knew it. Ginsburg was a lawyer for the ACLU for Gos's sake and even she flew through confirmation without litmus tests.

It seems that when the left does it, it's OK, but when Bush picks from his own philosophy, it's "The sky is falling, the sky is falling!!"

Posted by: Robert Zimmerman | Jul 8, 2005 1:04:29 PM

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