It’s probably obvious to nearly everyone, but the political world has very good reasons to hyperventilate over Sandra Day O’Connor’s retirement. For a change, the enormity of the over-the-top commotion will, if anything, fall short of the political significance of the event.
Naturally, the first (and second, and possible third) topic of conversation will be over abortion rights. Given the circumstances, that’s understandable. Casey v. Planned Parenthood, which reaffirmed the validity of Roe v. Wade, was a 5-4 ruling. O’Connor, of course, was one of the five.
But it’s important to note that reproductive rights is a relatively small part of an incredibly large debate. The Washington Post noted this morning that O’Connor has been the decisive vote on “virtually all the major legal issues of our time.” That’s not hyperbole in the least.
As the debate moves forward in the coming months, everyone will have a stake in the outcome. Abortion, church-state separation, civil liberties, affirmative action, gay rights, the environment, federal regulation of businesses, criminal justice, labor rights, election law … you name it, O’Connor has helped decide it. Take a moment to read People for the American Way’s list of 5-4 rulings in which O’Connor made the difference. It’s stunning.
The question then becomes how this process will unfold for the rest of the year. Social Security privatization and tax “reform” are now, I think it’s fair to say, officially dead. There just won’t be enough political oxygen to help them breathe and activists who would otherwise be prepared to invest in their defense are re-writing their budgets today.
So, what’s going to happen? Sen. Charles Schumer (D-N.Y.) said this morning, “We would expect the president to maintain the critical balance of the court that Justice O’Connor fought so long and hard for by nominating a consensus, mainstream nominee.”
Somehow, I have a hunch that Schumer’s going to be disappointed.
Like Kevin Drum, I believe Brad Plumer is spot on in his description of how this is likely to play out.
Some lunatic winger will get nominated — maybe even Janice Rogers Brown — the Democrats in the Senate will say, “Oh hell no” and launch a filibuster. So the battle will rage on for a while, Bush’s “base” will get riled up and motivated to send in lots and lots of money, conservative judicial activists will blast their opponents with fairly superior firepower, and bobbing heads in the media will start carping on those “obstructionist” Democrats (bonus carping here if the nominee is a woman, minority, and/or Catholic).
Finally Bush will give a very somber speech about withdrawing his nominee, announce that he’s very disappointed in the Senate, toss in a few bonus 9/11 references, and nominate some slightly-less-lunatic ultraconservative instead. The new nominee gets treated as the “compromise” candidate, is lauded far and wide as a moderate, and finally gets confirmed after pressure on the Senate Dems to “act like grown-ups” by television pundits who can afford to get their abortions abroad and will have no problem with a Supreme Court hostile to labor and environmental protections.
One would hope not, of course, but is there anyone who finds this scenario wildly implausible?
I certainly don’t.
And speaking of Janice Rogers Brown, there seems to be a lot of speculation about whether she and Priscilla Owen could be in the mix. To address this, I thought I’d point to an article published by James Dobson’s Focus on the Family one month ago today.
…Pat Trueman, a consultant to the Family Research Council on legal issues and former chief of the Justice Department’s Child Exploitation and Obscenity Section under the elder President Bush, said the [Gang of 14’s compromise deal] gives President George W. Bush a unique opportunity.
“I think one option the president has,” he said, “is to nominate for the U.S. Supreme Court one of the individuals who will have just been approved for the appellate court — either Priscilla Owen, who is now on the Texas Supreme Court; or Janice Rogers Brown, who is on the California Supreme Court; or perhaps Bill Pryor.” […]
“[Owen, Brown and Pryor] were given a pass by the so-called ‘Gang of 14’ in the U.S. Senate,” Trueman said. “The 14 agreed that none of these three would come under the rubric of ‘extraordinary circumstances’ which would trigger a filibuster.
“So, we know, first of all, that those three nominations will likely pass the Senate — one already has — and second, we know they are not subject to filibusters. So if the president wanted a ‘safe’ nomination to the Supreme Court that would get through the Senate, any one of those three would be a safe choice.”
Something to consider as the debate unfolds.