As we await the Supreme Court’s decisions in the University of Michigan racial preference cases, the favorite parlor game in Washington is guessing which Supreme Court justices will resign, and speculating about who President Bush would nominate to replace them. Stuart Taylor is one the most savvy of those who play this game for public consumption. In this piece, he plays it at great length.
Taylor argues that, in the event of a retirement or two, Bush will be in a difficult situation politically because any nominee who would please his political base will “horrify liberals, scare moderates, provoke a titanic confirmation battle, and possibility go down to defeat.” I suspect, however, that the Democrats may be in the more difficult political position. The liberal special interest groups that call the shots for the Senate Democrats will insist on shrill Senate opposition (including, perhaps, a filibuster) to anyone Bush is likely to nominate. This could even include the apparently moderate conservative Alberto Gonzalez, a Bush favorite. Taylor thinks that liberal groups might well insist on a filibuster of Gonzalez unless he pledges allegiance to their favorite precedents — something Gonzalez would be disinclined to do since it would entail prejudging issues and would also hurt Bush among conservatives. I’m not convinced that Gonzales would be filibustered, but I do think that the Democrats will act obnoxiously enough to alienate those, including many Hispanics, who are paying attention. Anyone even slightly to the right of Gonzalez might well be filibustered.
Over the top Democratic opposition to nominees who are somewhat right of center but who are not hard-line conservatives could result in a strong public backlash. As Taylor acknowledges, this might “set the stage for a smashing election victory and a bigger Republican majority in the Senate.” Meanwhile, conservatives would be disappointed with such nominees, but not to the point that they would turn on the president. In sum, it seems to me that the likely winners if Bush gets to nominate Supreme Court Justices are Bush and the Senate Republicans. The likely losers are Democrats and those who hope that the Court will become significantly more conservative.
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