The AP had stories yesterday and Saturday about a possible upcoming vacancy on the Supreme Court. Read 'em if you want. There's nothing too surprising there. The only thing that caught my attention was this, from the Sunday article:
Liberals hope Bush will fill his first vacancy with a centrist, a consensus candidate, instead of one who would please right-wing Republicans who were instrumental in the president's re-election. But they acknowledge that may be wishful thinking.
Bush has shown he is willing to stick by his nominees. When Senate Democrats denied votes on 10 of his picks for the federal bench, the president did not back down. Instead, he sent the same group of conservatives back to the Senate. That set the stage for the recent showdown over the filibuster a political maneuver the Democrats used to stall the votes through protracted debate.
"On every occasion the president has chosen confrontation rather than consultation and consensus so we assume it's going to be confrontation one more time or four more times, depending on what happens," said Ralph Neas, director of the People for the American Way. The liberal group has worked to block several of President Bush's appointments to the courts.
"Liberals hope Bush will fill his first vacancy with a centrist." Why do we hope this?
Let me make a possibly unpopular suggestion. Hear me out. Rehnquist is somewhere to the right of the Tsar Alexander III. If Bush nominated a centrist, that would be a major victory for us. It would actually be a net gain for our side. If Bush nominated a Scalia-clone, we'd be right where we are now.
What are the chances that Bush will nominate a centrist? Approximately 0.
What were the terms of the recent nucular compromise? Democrats can still filibuster, in the case of "extraordinary circumstances," which, of course, we all know, means whatever republicans want it to mean.
When will we not have to worry about the nucular option any more? When we regain some seats in the Senate in 2006.
Given all of this, maybe we shouldn't give the new chief justice a difficult confirmation battle, since he'll likely be no different than the current one. Maybe we should save our guns for the confirmation battle that would make a difference in the ideological make-up of the court.
Here are two possible scenarios:
Situation #1: Bush nominates J. Michael Luttig, widely thought of as super-conservative but intelligent. Dems don't give him too hard a time. He's confirmed 80-20. Lots of talk about bipartisan unity. Harry Reid talks endlessly about how reasonable we Dems are.
Next year, Sandra Day O'Connor steps down. Bush tries to nominate Janice Rogers Brown to her seat. Since O'Connor is a relative (on the Rehnquist court at least) moderate, getting another staunch conservative on the court would be a major loss. Dems complain loudly about how good our faith was with on the last nominee. We met the President half way. We could have filibustered but we didn't. Look how hard we tried to be fair. We were sure that President Bush would try to show his good faith as well. We were wrong, and unfortunately, we can't let the President nominate a crazy wingnut to the bench.
Public opinion favors the Dems, because they look reasonable and willing to compromise. Bush looks like a wingnut. Rogers Brown's nomination is defeated.
Situation #2: Bush nominates J. Michael Luttig. Dems filibuster. Lindsey Graham and Mike DeWine change their minds about the nucular option. The nucular option squeaks by 51-49. Luttig is confirmed, even with Lincoln Chafee, Olympia Snowe and Arlen Specter voting against him.
When O'Connor retires the next year, Bush nominates Janice Rogers Brown. Dems, despite complaining loudly and whining on TV every night, are unable to block Rogers Brown's confirmation because their right to filibuster has been taken away. The hardcore conservatives gain a seat on the Supreme Court.
I know, I know. I don't like it anymore than you do. This may not be a sound strategy, and if you don't think it is, tell me why. But it's certainly something that we all should think carefully about.