I finally have some time to consider the upcoming battle to fill Justice O’Connor’s spot on the Supreme Court (wish I’d had time earlier when I was invited to appear on MSNBC’s “Connected” program). First, we can quickly dispatch the notion mooted for some time now by the MSM and some liberals that, in the natural order of things, O’Connor should be replaced by a moderate, with a conservative perhaps getting Chief Justice Rehnquist’s spot when (if) it opens up. This argument is consistent with the general philosophy of the Democrats — when we’re in power we do whatever we want (e.g., nominate the liberal Ruth Ginsburg to succeed the moderate Byron White), but when the Republicans are in power they get to preserve the status quo until the Democrats finally win an election. Moreover, there is no reason to think that, if President Bush selects a moderate for the first opening, the Senate Democrats will permit him to confirm a conservative for the second. More likely, with the help of the MSM they will label the first nominee a conservative, confirm him or her, and then claim that they are more than willing to confirm conservatives but cannot confirm the second nominee because he or she is an extremist.
If Bush fills two vacancies, I believe that one will go to a moderate (probably Alberto Gonzales) out of friendship and/or the desire to commit affirmative action. The key right now is to make sure that we get one conservative out of the Bush administration (even his father accomplished that). To maximize our chances, the first nominee needs to be conservative regardless of the political orientation and gender of the retiring Justice.
Assuming that the president is game, the key then becomes nominating a conservative that Senators Graham, DeWine, Spector, and Warner will regard as raising no “extraordinary circumstances,” and then hoping these Senators will hold the Democrats in the gang of 14 to their word. The first task shouldn’t be difficult, but the “hoping” part is more than a little problematic.
My first choice for the nomination is Michael Luttig of the Fourth Circuit because he is Scalia-like smart and has a long track record as a conservative judge. The Scalia image and the track record will enrage the Democrats, but probably no more so than if Bush were to nominate a less bright conservative with less of a track record. Nor are Senators Graham, DeWine, etc likely to regard Luttig as raising exceptional circumstances. However, the track record, as spun by the Democrats and the MSM, might nonetheless make them less inclined to hold the seven Democrats in their gang to their commitment (assuming they have any stomach for holding them to it in the first instance).
Another great choice would be John Roberts of the District of Columbia Circuit. Roberts is also quite bright and strongly conservative. He lacks the long judicial track record, but that is a plus in one sense — it may make it more difficult to claim “extraordinary circumstance” in a way that passes the straight-face test for Graham, DeWine, etc. (trust me, though; Roberts is not at all Souter-like). In addition, the Senate recently confirmed Roberts. This (a) makes it difficult credibly to claim extraordinary circumstances and (b) suggests his strength as a nominee, since he got through prior to “the deal” when the sledding was tough. Indeed, given Roberts’ middle age movie star looks and considerable charm, he’s not a good prospect for a “Borking,” though the Democrats nonetheless will give it a shot.
There are several other strong conservative candidates, but let’s not have all of the fun on the first day of the games.
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