Okay, it didn't take long, looking at news articles and listening to Sunday TV newstalk to see the theme each party has got going on the O'Connor replacement.
DEMOCRATS: O'Connor was a moderate and ought to be replaced by a moderate. We Democrats can't say more than that until we see who the nominee is, at which point we will need plenty of time to do our research. (And you should get the point that this will take forever and include a filibuster if Bush doesn't get the message and choose a moderate.)
REPUBLICANS: Bush will do an exquisitely careful, thoughtful job in choosing a nominee, who, being so carefully, thoughtfully chosen, will deserve the utmost respect, which must be expressed in the form of a quick "up-or-down vote."
Tempted to tune out until we actually hear who the nominee is? Or do we have to worry that the terms of the fight are being importantly "framed" right now? If so, I feel compelled to get into the act, because the blogosphere has got to make a show for itself too.
So let me say four things.
1. I agree that O'Connor was a moderate, within the spectrum of opinion that currently reigns in constitutional interpretation -- reigns in the courts, I hasten to say, not in the academy, of course.
2. It's a contestable point whether a Justice ought to be replaced by someone as much like her (or him) as possible. I think we should notice and fight over whether a different sort of Justice is filling a vacancy, but there's no general principle here. Past Presidents have often taken advantage of vacancies to shift the Court. The President has the power of appointment under the Constitution, and the President has reached his position of power through a democratic process that today very much includes debate about the direction the Supreme Court should take. The real question is whether this Court, now, should be shifted, not whether it is legitimate in the abstract to shift the Court.
3. I don't think the failure to choose a moderate can, in itself, be portrayed as the sort of "extraordinary circumstances" that justify a filibuster under the terms of the recent filibuster compromise. Still, filling a Supreme Court vacancy is very different from putting someone on the Court of Appeals, so it's not enough to say the new nominee is no more conservative than the nominees who were confirmed after the compromise. We need to concern ourselves about the Supreme Court's power to overturn precedents, so what was not "extraordinary" at the appellate court level can become "extraordinary" at the Supreme Court level. But it would be unfair to simply assert that the circumstance of appointing a Supreme Court Justices is in itself "extraordinary."
4. The mere fact that Bush is going to "take this responsibility seriously" -- as he put it -- doesn't mean whatever he does warrants supine deference. If the Republicans chant "up-or-down vote" too much, it's going to feel really oppressive. (I'm already sick of that phrase.) There are a lot of people who worry that they are going to lose rights they believe they are entitled too. Getting all overbearing in response to this genuine fear is going to turn moderates like me against you. And I'm not one of those people insisting on a moderate.