Monday, September 05, 2005

The Supremes

So it seems the Justices of the Supreme Court are dropping like the characters in an Agatha Christie mystery. First, O'Connor dropped out, and now Rehnquist has passed away. I think the next one to go will be John Paul Stevens, in the conservatory, crushed beneath a giant novelty gavel.

Rehnquist's death, coupled with Bush's decision to reposition Roberts for the top spot, has the blogosphere all atwitter. Many on the right are hailing this as a sign that Bush still has a deft political touch, all appearances to the contrary notwithstanding, since this means he can get his golden boy more than just a spot on the Court; he can get him the spot.

This is going against some of the blogosphere wisdom, but I think this weekend's events bode well for liberals. Most Democrats have agreed that Roberts will in all likelihood be confirmed, a fact that doubtlessly led Bush to reposition Roberts for the Chief's chair. However, by moving the near-certain confirmation to that spot, Bush may have missed his best chance to shift the ideological balance on the Court. Roberts is a former clerk of Rehnquist's and a close ideological ally; therefore, the replacement does nothing to alter the ideological make-up of the Court. Democrats can let Roberts sail through with smiles, and thereby show that they're not "obstructionist" and even give the president a win in the fight that, to laymen, would seem to be the most important.

With that kind of political cover, the Democrats can then go to the mattresses over the replacement for O'Connor. That spot represents the real swing vote, and getting a right-wing conservative in there would fundamentally alter the course of the Court. Therefore, this is the fight that really matters. Oddly enough, I think Bush's manuever only helps the Democrats. Having let Roberts through first and doing it fairly, they can then draw a line in the sand here and stop whoever gets nominated there -- whether it's a Bush loyalist like Gonzales, or a ultra-right woman like Owens, Brown or Clement.

If Bush had played this correctly, he could've gotten Roberts in for O'Connor, had Scalia step up and replace Rehnquist, and then snuck a new conservative for the vacant associate spot. He could've flooded the zone with three nominations and found the focus on Scalia's ascension. That would've guaranteed that anyone shy of Scalia would've been given a light treatment, much as Scalia himself was when his nomination coincided with the move to elevate Rehnquist to Chief Justice back in 1986. He could've cemented a conservative bloc for a generation.

But he missed that chance. If the Democrats play this right -- and, yes, that's a huge "if" -- they can come out of this with a Court that looks roughly like it does now. And for those on the left side of the spectrum, that's by far the best we could hope for.

(Actually, the best we can hope for is that the next Chief Justice takes the gold racing stripes of the robe. That's a Rehnquist legacy we can do without.)


Thrillhous said...

I love the part where dems go to the mattress for the next court appointee. It's like the glory days of Clinton all over again.

Interesting take. I worry that Bush will just nominate one of the three judges that got through after the filibuster non-showdown, i.e., the three who have been preapproved by the dem moderates.

Otto Man said...

I'm not so sure. Given the likely commentary we'll be seeing over Bush elevating Roberts to CJ with just two years' judicial experience, I think the next person has to have more time on the bench, just to offset that. And the compromise judges were all pretty new, right?

Mr Furious said...

Ezra pointed out that Clement is a woman from New Orleans. I think that's worth pointing out. I wouldn't be surprised at all about a cynical ploy like that. Plus, she was the rumor (trial balloon?) the day of the Roberts announcement, and I think she got a fairly positive reception.

That's where I'm putting my early money.

Otto Man said...

Yeah, Furious, Clement is a front-runner in my mind, too.

Bush has got to go with a woman or minority this time around, and since Gonzales would be under fire from both the right and left, I bet he goes with a woman. Clement is batshit crazy, so she fits the bill well. I didn't know about the N.O. thing, but that only adds momentum.

She's someone the Dems can and should fight. I just hope NARAL and NOW are better prepared to oppose a female conservative than the NAACP and Urban League were prepared to oppose Clarence Thomas. Otherwise, the liberal opposition won't hold together.