It doesn’t sound like they want a consensus candidate

June 21, 2005

The conventional wisdom is that Supreme Court Chief Justice William Rehnquist will retire sometime in the next week or so, kicking off an intense confirmation fight to fill the first high court vacancy in 11 years.

It’s led to some speculation about who Bush will tap for the Supreme Court and how the White House will approach the confirmation process. A decade ago, Bill Clinton was able to fill two vacancies. Despite having a Dem majority in the Senate, Clinton approached Senate Republicans to find a nominee that could win easy approval. The method worked — Ruth Bader Ginsburg and Stephen Breyer were confirmed with minimal opposition.

Any chance Bush will follow a similar path? Not so much.

The White House … plans mock hearings in which the nominee will field aggressive questions from a “murder board,” or a phalanx of lawyers and administration officials playing senators on the Judiciary Committee. Such hearings were conducted for Mr. Thomas and have even been conducted for some of the current administration’s appellate court nominees, like Mr. McConnell.

The White House plans to name a point person to manage the process and to create an additional war room on Capitol Hill, in the office of Vice President Dick Cheney, Mr. Specter or Senator John Cornyn, a member of the Judiciary Committee and a Texas Republican.

Murder board? War room? If Bush were poised to pick a consensus nominee that would likely generate bi-partisan support, it’s hard to see why all of these measures would be necessary.

Indeed, the Committee for Justice’s C. Boyden Gray, who will be helping the Bush gang rally the troops during this fight, said this week, “The selection of a chief justice is approaching the contours of a general election.”

Considering the general election we just went through, and the smearing and deceptions that came with it, the confirmation process is probably going to get ugly.

The really crazy thing is that Bush could nominate McConnell, and he would get his man with at most a couple of “nay” votes.

But nooooo–he wants an ugly partisan grudge match. He’s going to find the most objectionable bastard he can–maybe Roy Moore’s available?–and do his damndedest to ram that S.O.B. down the nation’s throat. The Bolton nomination should have clarified for everybody who’s paying attention that symbolic “fuck you”s to traditional comity and decorum are now the name of the game.

  • Can I just say now that I am soooo not looking forward to this next Supreme Court fight. I get tired and annoyed thinking about it and it hasn’t even happened yet.

    The WaPo this past weekend had an article on the top 3 most likely – Gonzales – yes that Gonzales – is supposedly at the top of the list. At first I thought it was a joke and just plain stupid. A lawyer who served what 2 years or something on the Texas Supreme Court, was a White House lawyer (i.e. political job), and is now AG (another political job) is not qualified to be a Supreme Court Justice in anyone’s book. How could anyone take this seriously. Then I remembered that this is the administration that rewards incompetence, loyaly, and inexperience. This is also a president whose only real job prior to being president of the freaking United States of America was as governor in a state with a somewhat weak governor. So nominating Gonzales would be about right from this administration.

    It really is sad that this administration really doesn’t care about the US and it’s future. That it won’t do what is in this country’s best long-term interest if it is contrary to their political needs. Do I expect altruism to be a part of all decision made by politicians. No, I am not that nieve (I have lived in DC too long and I am from New Orleans) – but this administration is so politically self serving one wonders why mirrors don’t break and walls don’t come tumbling down around them.

  • What’s really hilarious is that according to the latest news report Justice Rehnquist is saying he’s actually feeling better these days and still enjoys his job, so he may decide to hang on for yet another term. Wouldn’t that be a hoot? A kind of sad and pathetic hoot in a way, but a hoot nonetheless. I don’t agree with his decisions a lot of the time, but I give full credit to anyone with the gumption to soldier on at something he loves even every indicator says he’s got nowhere to go but six feet under.

  • Also, Rehnquist is by most accounts a decent guy (unlike, say, Scalia or Thomas). His image of the law is not the one I prefer, but at least he seems to stick with it, as evidenced by his dissent in Raich (unlike, say, Scalia). Swapping the Chief for just another rightwing hatchet-man is what the administration is after; I hope Arlen Specter, Lindsay Graham, and a few other people on that side of the aisle who know the law will keep that from happening.

  • Now that Bush has secured his second term, it appears his “domestic agenda” is going to be trying to pick as many partisan battles as possible in order to stimulate his supporters to crack open their checkbooks to continue to fund their “revolution.”

  • I say bring it on. Bush has been nothing but a bully since he came to office, although he hid it in pithy but effective utterances, such as “I’m a uniter, not a divider,” and “I’ll bring back honor and integrity to the White House.” He killed both of those birds last Tuesday when he blasted the Democrats for his political failures (imagine!) at a fundraiser with the biggest female porn star sitting there after her personal invite came from Bush and Rove (imagine again!!). As far as “in-your-face” tactics, just look at the Boton nomination and, more importantly, Bush’s re-nomination of 7 judges already rejected by the Senate through filibusters. EXPECT Bush to do it here, too.

    There will be a show-down in the Senate over the filibuster and the nuclear option. IF Bush chooses an extreme right-wing candidate — and Gonzales falls into that category — s/he should be successfully filibustered as the Gang of 14 will vote against the nuclear option. Why? Because Bush will have failed to consult with the Senate during the nomination process — an implicit expectation and promise made to the 7 Dems who signed on to the compromise agreement — and that failure WILL be deemed by the Gang of 14 to constitute “extraordinary circumstances.” Of course, that presupposes that the 7 Rethugs (and even some of the Dems) retain their integrity and move to support ALL of the terms of that compromise agreement and therefore vote against cloture.

    Finally, a divisive candidate and the ensuing bloody battle can do nothing but further erode Bush’s — and by extension and/or association, the Rethug’s — support amongst the American populace. That spells bad news, since the battle is one that will be on a national media stage to a far greater and continuing extent than any appeallate judge battle to date, and America will notice this extremism just as it did with Schiavo. George and his political thugs can win a lot of battles conducted in the shadows and out of the public arena; he has shown that he has a political tin ear, though, when he tries the same tactics in the full glare of the media spotlight.

    I relish the coming battle, as either way the Rethugs will get burned by these hardball tactics. And, as anyone paying even scant attention to the polls — and I know that means EVERYONE here 🙂 — the more the American people learn of the truly radical nature of Bush’s agenda, the more those same people reject that agenda. It should be grand political theater, at the very least, so bring it on!!!

  • Yes, I was referring to his civility, which as you agree, Scalia and Thomas lack.

  • I concur with Analytical Lib, and I appreciate that he could write that many words without cussing.

    The fact is, as with the Bolton nomination, BushCo just won’t cooperate, and they’ll end up looking like the “stop sign” administration. As long as the Dems have the cajones to stick to their guns, and the gang of 14 rides in to save the day, we’ll be in a great place.

    Best scenario of all is that Renquist sticks in there. Anyone else think he’d do it out of love for the country? He’s got to be getting fed up with the BS coming from the exec and legislative lately. He’s a true federalist, and he has been dessenting a lot.

  • Bush will always choose to pick fights with Democrats, no matter what the issue. His ideological base demands it – they’re still smarting over Bush 1.0’s selection of milquetoasty Stephen Breyer for the Court. The Republicans can’t deliver on any of the substance of their culture-war promises for their base (where’s that anti-gay marriage ammendment?), so they feed them the sizzle of good-vs.-evil confirmation fights in order to stoke the fires of resentment and victimization.

  • Elizabeth Drew, in the NYRB, reported that these guys think that, unless you get only a bare majority, as opposed to the consensus that was sought in the past, you haven’t “won.” The thought that the other side has merit is utter anathema.

  • they’re still smarting over Bush 1.0’s selection of milquetoasty Stephen Breyer for the Court.

    Just to clarify, FMguru meant David Souter. Clinton tapped milquetoasty Stephen Breyer for the high court.

  • You’d be surprised about Rehnquist (an awful SCJ); and that awful hack and KLeagle Byrd.

    Bryd is WORSE than Lott. Lott pandered to the Klan, Byrd IS the Klan.

    Scalia on a number of issues has held that yes, the Federal Govt’s powers are limited (the wine shipping case); which can often be a good thing. A Federalist Systems depends on separation of powers, which Scalia almost alone in the Court seems inclined to agree with. Implications for Gay Marriage are obvious. It prevents an Act of Congress from forbidding States to recognize Gay Marriage.

    As far as the nomination goes, the Dems have made it clear that they are going for obstructionism. Unless Bush nominated Howard Dean for the Court he’d have a fight on his hands, to sway the Court as left as possible.

    This is objectively a bad thing since relying on International Law and practice will have about ZERO political support in this country. Just because say the UK and Australia bans sermons in churches critical of Muslims, or Saudi Arabia cuts people’s hands off, it should not follow that the US should be part of that tradition.

    The source of our laws is the Constitution, not what other people do in other countries. Souter’s citing of this (as well as Breyer, and O’Connor) is horrible law and worse politics.

    Gonzalez is hardly the worst person Bush could nominate, and he was right. The Geneva Convention’s requirement for pay/scrip, scientific instruments, athletic uniforms and commisary priveleges is pretty quaint.

  • Rockford, you are wrong, wrong and wrong. What makes you think the Democrats are “going for obstructionism”? Is it the 200 plus conservative judges they’ve helped to confirm? The truth is there are dozens of qualified conservatives that could be easily confirmed to replace Rehnquist.

    All Bush would have to do is run some names by the Democratic leadership, as all previous Presidents have done. But he hasn’t done that yet, and no one expects him to do it now. He will pick the most radical, unqualified and polarizing person he can in order to provoke a fight. And no matter how bad the guy is, the Repubs will fall in line and vote to approve.

    On the other hand, when a pro-choice justice leaves the court the Democrats will pull out all the stops to keep an anti-choice replacement off the court.

    And please spare us the “pay/scrip, scientific instruments, athletic uniforms and commisary priveleges” straw man. Let’s stay on topic and keep the conversation on an adult level, OK?

  • #3
    (Slightly edited – see http://www.rit.edu/~smo4215/monty.htm#Scene%202)
    DEAD PERSON: I’m not dead!
    MORTICIAN: Here — he says he’s not dead!
    CUSTOMER: Yes, he is.
    DEAD PERSON: I’m not!
    MORTICIAN: He isn’t.
    CUSTOMER: Well, he will be soon, he’s very ill.
    DEAD PERSON: I’m getting better!
    MORTICIAN: Oh, I can’t take him like that — it’s against
    regulations.
    CUSTOMER: Well, can you hang around a couple of minutes? He
    won’t be long.
    MORTICIAN: Naaah, I got to go on to Robinson’s — they’ve lost
    nine today.
    DEAD PERSON: I think I’ll go for a walk.
    CUSTOMER: You’re not fooling anyone y’know. Look, isn’t there
    something you can do?
    DEAD PERSON: I feel happy… I feel happy.
    [whop]
    CUSTOMER: Ah, thanks very much.
    MORTICIAN: Not at all. See you on Thursday.
    CUSTOMER: Right.

  • Somebody email Steve Clemons and get him to make stopping this candidate his next crusade. He kicked ass on Bolton, who everyone else wrote off as a lost cause. Imagine what he could do in a fight people were willing to suit up for.

  • Let’s not forget that in naming Rehnquist as Chief Justice in 1986, Ronald Reagan broke with tradition and elevated the most extreme justice to chief. Previously the Chief Justice nominee, whether from outside the Court or in, was always a moderate in relation to the justices already there. In other words we are about to enter our third decade of an unprecedented conservative-leaning Court.

  • We might very well be talking about the next Chief Justice — unless Bush goes for Scalia or Thomas. This means he could go for Gonzales, whom I objected to at Atty. General but who might very well be the best option for those of us worried about the rightward drift of the Court. Better Gonzales than a hardliner, after all, whatever his role in the justification of torture that has contributed to the abuses at Gitmo and elsewhere.

    As I argue at my own blog, The
    Reaction    , Democrats might not challenge Rehnquist’s replacement as strenuously they will the replacement of one of the more liberal justices. They may back off here, where the Court’s balance isn’t at stake, and instead save their ammunition for more important battles yet to come. In other words, they might accept an otherwise unacceptable conservative just because they need to pick and choose their battles. Blocking a conservative replacement for Rehnquiest might not go over as well as, say, standing up for the current “balance” on the Court.

    The problem is, Bush might play to this and purposely nominate a more extreme candidate than he otherwise would in expectation of victory. And if Bolton goes down, he’ll be looking for a victory to reassert executive authority. This could explain why a more extreme candidate could soon be up for the job.

    What does it say, though, when Gonzales looks good?

  • It really doesn’t matter who is appointed Chief Justice; he still only has one vote. I actualy hope it is Scalia, then any bad decision the court makes in the decades to come can be blamed on him and his conservative judicial philosphy. I think it would be a waste of political capital for Democrats to make a big deal about it.

    It really doesn’t matter who replaces Rehnquist as the ninth justice either, because its just swapping a conservative for a conservative. That doesn’t mean you don’t make a big stink about it and let the american people know Bush is stacking the courts, but I don’t think you waste the filibuster on what amounts to a swap.

    Its the next justice that is nominated to take over for O’Connor or Stevens that you declare war over. Then everything, and I mean everything, must be done to ensure a “moderate” appointment. And I think there’ll be alot of republicans that will help in that cause if the Democrats play it right.

    Aren’t you glad now that the gang of 14 did the compromise and saved the filibuster? People that aren’t yet are gonna realise that soon enough.

  • If nothing else, the “war room” and “murder board” show what kind of persecution these whackos think they’re under. And they’re the ones who control everything. I don’t know if they’re poorer losers, or winners; every time I find an answer for one side of that argument, it’s promptly trumped by the other.

  • A Federalist Systems depends on separation of powers, which Scalia almost alone in the Court seems inclined to agree with.

    First, a “Federalist Systems” doesn’t make any sense. Second, separation of powers and federalism are two different things; one divides power between branches of government, while the other divides power between states and the federal government. Third, Scalia is far from the only justice who makes arguments based on separation of powers or federalism. Fourth, he is far from consistent in his general level of concern for separation of powers and states’ rights. See Raich v. Ashcroft, Bush v. Gore.

    The source of our laws is the Constitution, not what other people do in other countries.

    Fifth, the Constitution is only one of our sources of law. If you had ever read any Scalia decisions, for instance, you would know that English common law retains an immense impact on our laws. Plus, of course, our states enact criminal law. The Constitution has nothing to do with that (except limiting what they may criminalize and how severely they may punish). Plus, all treaties that Congress ratifies become binding law. The Constitution gives them treaty power, but the substantive law comes from the treaty itself.

    Finally, of course, you are talking out your ass, and it’s stinking up the place.

  • I say bring out Roy Moore! WOOOHOOOO!

    No, Roy will probably run for Governor of Jesusland (AL) in 2006. But I expect Bush will pick someone extreme and in-your-face, like the Bolton for the UN nomination.

  • Re: why a murder board candidate

    My perception is that Bush/Rove have painted themselves into a corner with their radical base. With job approval numbers way below 50%, failing to feed the hard core culture warriors some red meat on one of their signature issues (to them, this is all about abortion) is to risk the anger of the rapidly dwindling minority he still has defending his record.

    Frist is already being cussed under the breath of the televangelist-contributing red stater types, after the Schiavo and nuclear option pratfalls. Perception becoming reality is their entire schtick, so Bush/Rove have to be very careful not to make any noises that sound too much like quacking.

  • Gonzales is conservative ? Says who ?

    I wouldn’t bet a cent on him voting to overturn Roe and Casey.

  • Also, Rehnquist is by most accounts a decent guy (unlike, say, Scalia or Thomas).

    Nonsense. Scalia’s best friend on the Court is Ruth Bader Ginsburg. And everyone (I mean everyone from janitors to security guards to anyone in the highest reaches of power) who has been anywhere near Thomas knows that he is the most gregarious, unassuming, and friendly person that you could ever hope to meet.

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