June 4, 2007

"The White House is developing a short list of possible Supreme Court nominees..."

Writes Jan Crawford Greenburg:
The White House is not expecting a retirement, but it wants to be ready if a surprise announcement occurs, sources said.

It's widely considered that the most likely candidates for retirement are liberal Justices John Paul Stevens and Ruth Bader Ginsburg, although both have said emphatically that they do not plan to step down....

[A]dvisers are focusing on possible nominees who are believed to be solid judicial conservatives and would galvanize the base at a time when Bush desperately needs its support....

Leading Senate Democrats are already warning against solidly conservative nominees, and that could make confirmation difficult in the Democratic-controlled Senate.

Still, some of Bush's political advisers believe he would be better off tapping a strong conservative who would rally the base -- especially a nominee with a compelling life story who would be difficult for moderate Senate Democrats to oppose.
So there don't seem to be retirements in the offing this year, and I hope there are none. If there are, however, it will be an exciting political spectacle that I assume will be primarily about the 2008 election. As Greenburg indicates, the obvious strategic move for Bush is to defy what will be the Democrats' demand that he pick a centrist, and the key is to do it with a nominee that will make the Democrats look terrible opposing her (or him). Of course, we've already gone through this routine with Roberts and Alito, but that was: 1. before the Democrats got the majority in the Senate, 2. when the previous election was a positive one for Bush, 3. not on the eve of an election, 4. (assuming one of the liberal justices retires) not as likely to upset the balance on the Court, 5. not after 2 consecutive conservative appointments.

29 comments:

Sloanasaurus said...

Janice Rodgers Brown. Why would Bush nominate anyone else.

It's hard to imagine the Democrats in the Senate confirming anyone at this point.

MadisonMan said...

Is Harriet Miers looking a for a job?

Diane Sykes. She'd be there forEVER if nominated -- she's younger than Ann! But would conservatives rally behind a divorcee?

Sloanasaurus said...
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Hoosier Daddy said...

But would conservatives rally behind a divorcee?

Why not? I wasn't aware that conservatives were immune from divorce. Considering the divorce rate is 50% or thereabouts, I don't think many conservatives really look at marital status as a defining characteristic of someone. I think the reasons behind the divorce maybe be more of an issue than the divorce itself.

Divorce has become like bankruptcy. Stigma at one time but now, pretty much an accepted part of life that no one really thinks twice about.

Simon said...

As much as I like JCG, this seems like filler. The White House is developing a short list of possible Supreme Court nominees? It would seem obvious that they should have such a list (who, who follows such matters, doesn't have a shortlist of preferred nominees?), and as JCG's own book points out, it's situation normal for them to maintain such a list. Indeed, it would be bigger news - shocking news, in fact - if the White House didn't have a short list. It would be the height of irresponsibility not to be prepared for such an eventuality, even if - as Jan's pointed out before - it's very unlikely to occur.

There's a good argument that anyone who's any good (Diane Sykes and Steve Calabresi generally top my list) - would face tough confirmation hearings, but isn't that true of anyone Bush nominates? Is there really anyone who the Dems are going to let onto the court? I think it's far more likely that they'll stonewall any nominee in an effort to make that the focus of the 2008 election - demonstrate to the voters that the absolute first pending task of the next President will be to decide the future direction of the Supreme Court.

OTOH, maybe I'm wrong. Maybe there's someone who is confirmable. After all, I've suggested in the past that what's really needed is someone who can satisfy both camps, perhaps a lifelong Democratic voter, but one who's independent-minded and who perhaps has a pro-federalism position, who's reasonable about exective power to prosecute the war on terror and so forth... At least one name springs to mind. ;)

Sloanasaurus said...

Diane Sykes would be a very bad choice. She has no existing social circle in Wash DC." She would become an instant turn-coat.

The secret is to nominate somone who already has a social group in DC... a group of conservative friends. In that way they will never go left, because they would never want to abandon all of their friends.

Simon said...

MadisonMan - I would certainly hope they would. I've been very impressed with her work on the 7th Circuit, and although there are a couple of rulings that worry me a little, she did sterling service on the Wisconsin Supreme Court. From my perspective, I'd do anything in my (granted, limited) power to help prompt or subsequently assist a Sykes nomination.

Sloan, with all due respect, your D.C. social circle thing is vaporous. As I explained the last time you raised it, it simply doesn't hold water: none of the Justices who you've tried to apply it to have migrated because of social pressures: Blackmun migrated under a combination of Brennan's pull and the anti-Roe push; Kennedy has turned out to be precisely the kind of Justice that many on the DoJ warned that he would be; Souter was never particularly conservative to begin with, and even if he were, doesn't do the DC party circuit. The party circuit theory just doesn't bear scrutiny; the only guarantee is to pick someone who has a well-defined judicial philosophy that they apply to cases.

hdhouse said...

can anone imagine that the goal for the nomination to the supreme court would or perhaps better stated "should" have any consideration whatsoever for a "social circle rule" or that social friendships would cause someone "never to go left" because they would therefore abandon their friends?

if this goes through the mind of a president and his advisors - or particularly through the minds of the rabid supporters, then woe to the republic. why not just make a short list of big donors?

incidently mr. gonzales will be out of work fairly soon and unless haliburton offers him a board seat and corporate counsel job, he is going to be hard pressed to find work...and yes..what of harriet myers..or that goodling creature..you know, the one who crossed the line but didn't break the law?

sooo shallow sloan..soooo shallow.

Sloanasaurus said...

the only guarantee is to pick someone who has a well-defined judicial philosophy that they apply to cases.

Of course I agree with you this. My point about the social circles, is that if you pick someone who already has a social standing in DC among conservatives, it is a lot less likely that they will drift left. No one wants to abandon their existing social circles, especially after they get older.

Sloanasaurus said...

"should" have any consideration whatsoever for a "social circle rule" or that social friendships would cause someone "never to go left" because they would therefore abandon their friends?

My point is that you need the judicial philosophy and the existing social circle.

I think it is prudent to examine human reality in any of these decisions. If a Supreme Court Justice is going to live in DC for the rest of their life, then considering who their friends are going to be is important. If they don't currently have a group of friends, then you take a big risk.

If a liberal were put on the court and then started hanging out with Alito and Roberts and all of their friends for the rest of their life, they would start becoming a lot less liberal.

Simon said...

Sloan,
My liberal friends tell me all the time that the MSM is biased - but that it's biased against liberals. And their reasoning is this: big corporations are obviously not bit supporters of the liberal agenda, and because big corporations own the length and breadth of the MSM, ergo, not only can the MSM not possibly have a liberal bias, it in fact must have a conservative bias. This reasoning isn't entirely flawed: one wouldn't expect that a newspaper wholly owned by Al Gore would be throwing straight dice on climate change, and one might place a fairly confident bet on which side they're favoring. Nevertheless, a page of history is worth a volume of logic, and no matter how eminently rational my friends' reasoning, it disintegrates with the experience of actually reading or watching the MSM.

The same, I think, is true of your theory (and I know others have advanced it) about the DC party circuit. It's not that the theory doesn't make sense. It seems plausible enough. It's just that experience doesn't support it. There are no Justices in recent experience to whom the theory would apply who have drifted left but for whom there aren't more likely explanations. And there are even counterexamples: Justice Powell arrived on the court at the same time as Justice Rehnquist, and to the extent that he drifted at all, drifted right. And Justice Souter, who wasn't very conservative when nominated but has assuredly drifted at least modestly to the left, doesn't do the party circuit, so his drift has to be prompted by other pressures. Finally, the poster child for the DC party circuit theory is Anthony Kennedy, yet there is every indication that he hasn't actually drifted - as JCG reports in Supreme Conflict, a review of his opinions before joining the Supreme Court prompted many observers in DoJ to oppose his nomination tooth and nail precisely because they concluded his jurisprudence would lead him to results like Casey and Lawrence.

The best guarantees - indeed, the only guarantees - seem to be a coherent judicial philosophy and service in the executive branch. But it's having a firm theory of what law is and a theory of how to adjudicate cases that flows from that theory that is the only guarantee. The justices who change are the justices who decide what the fairest result in the instant case is, and work backwards from there; one's conception of "fair" may change as one gets older, but when you have a process that you work from, you're far more likely to keep applying it.

Fritz said...

Democrats will first claim that the 2008 election should decide the appointment, but that will run contrary to the advise & consent trope they have used before. It would hurt Rudy the most in Republican primaries if the vacancy lasted to the next President. If a Republican were to win in 08, Democrats would be prevented from filibuster if they use the election card.

Sloanasaurus said...

And their reasoning is this: big corporations are obviously not bit supporters of the liberal agenda

Wait... but this isn't true. A lot of big corporations do support the liberal agenda. Everyone always assumes that big corporations are "conservative" because they seem anti little guy or anti-labor union However, big corporations can be the biggest liberals of them all. Now we have giant corps advocating national health care, because they don't want to pay for it. Big multi national corporations want illegal immigration for cheap labor, they don't care about national identity.

Why would a big corporation care about conservative values - things like individual rights, individual freedom.

An Edjamikated Redneck said...

I'm not sure leaving an appointment and confirmation up to the next president would serve the Democrats at all.

I believe, based on past polls, that most of America would vote conservative if they knew for certain the new president would appoint a SCJ, and the Senate would need to confirm that appointment.

Cedarford said...

I pretty well discount the "compelling life story" as making a candidate immune from savaging by either Party.

"I am a mill workers son"
"I was raised in an Arkansas double-wide"
"My father farmed lemons in Yorba Linda. I came from nothing."
"I can run foreign policy because of my nontraditional black interests in ice skating and classical piano.."

Nor does the "minority" immunity amulet apply to Republican candidates who say "no democrat will dare oppose a women, a black, or a 2-fer, even 3-fer conservative".

Dumb Republicans keep thinking that and touting Janice Brown as someone who Democrats will toss rose petals at the feet of as the black, female, sharecropper's daughter.

Yeah, just as they did with Clarence, the black sharecropper's son.
And just how they fell into minority bliss with Miguel Estrada's nomination.
And how the Dems share the love with Alberto Gonzales over his compelling life story and blow off a lot of his foibles because he is Latino.

Too many jims said...

"Janice Rodgers[sic] Brown. Why would Bush nominate anyone else."

Is she really the best qualified, credentialed and seasoned candidate?

Alan said...

FWIU, Janice Rogers Brown is a huge advocate for property rights. ...Although, she does have a large following among social conservatives. Which means her views on property rights may not extend to one's own body.

hdhouse said...

Sloanasaurus said...
"My point is that you need the judicial philosophy and the existing social circle."

You state plainly (for once) that the "existing social circle" would keep a conservative from straying from the reservation rather than abandon their friends.

the reverse is of course they would rule in order to keep their friends.

i hope your chosen profession has nothing to do with law, politics or the rest of society. i really do.

Theo Boehm said...

Sloanasaurus is exactly right about corporate support of the "liberal" agenda.  Things like national identity, individual freedom, individual rights, personal economic autonomy, etc. are not goals of multinational corporations.

Many people still carry around old Marxist images of fat capitalists, crudely exploiting everything in sight, opposing or buying off the government at every turn.

When's the last time you saw someone in a waistcoat and spats, puffing a cigar and wearing a top hat?

Modern corporations want predictability and control.  They no longer oppose environmentalism, for example.  The effects of pollution, including global warming, mean the possibility of unplanned liability and regulation.  Better to have reasonable regulation, from the corporate perspective, than chaos.  Plus, there are good business opportunities in the environmental field, but you have to have a predictable regulatory regime.

Similarly, corporations have gotten behind government-run health care.  This is part of the "socialize the cost, privatize the profits" agenda.  It's just the latest example in the thousands of years of history of this sort of thing.

Corporations are not opposed to large parts of the "progressive" agenda.  They can make money from them. The MSM may be a corporate tool, but it's obviously not traditionally conservative.  It's helping to sell our socialized, controlled, environmentally responsible future.

Some sort of new corporate state has been predicted for a long time.  We're beginning, I think, to finally see the outlines:  A top elite of the international managerial class; a second tier of those with technical and managerial skills to make it into the perpetually squeezed haut bourgeoisie;  and a vast, international proletariat, not always surrounded with traditional symbols of exploitation in their work, but ill-paid, with no security and few prospects for advancement.

In this new feudal world, with its modern versions of the nobility of the sword, nobility of the robe, and peasants, there is little place for those old-fashioned American ideals of personal liberty and autonomy.  And of course corporate interests will try their best to prevent the appointment of a Supreme Court Justice who might try to hold to those cranky notions.

It's all really the best for everyone.

Simon said...
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Simon said...

Sloan - that's really besides the point. The point I was making is that just because a theory may or may not be reasonable as a matter of logic, the most pristine logic can't survive unfavorable contact with experiential reality, and your DC party circuit theory finds no support in experience.

Alan said...
"Brown is a huge advocate for property rights ... [but] her views on property rights may not extend to one's own body."

Maybe she understands the difference between "child" and "chattel"...

Revenant said...

Stevens and Ginsburg might not be planning to leave the court, but neither was Rehnquist. Stevens is 87 years old and in poor health.

A smart play on Bush's part would be to nominate a serious conservative the first time out. Either the nominee wins, or the Democrats cook up one of the usual flimsy reasons for nixing the nomination. Either way, the Republicans score points with the base.

Simon said...

All the stories I've read suggest Stevens is in excellent health. Personally I hope he long remains in excellent health, enjoying a happy and productive retirement. ;)

PatCA said...

"As Greenburg indicates, the obvious strategic move for Bush is to defy what will be the Democrats' demand that he pick a centrist, and the key is to do it with a nominee that will make the Democrats look terrible opposing her (or him)."

These days, when I hear the White House is formulating a new strategy or policy, I cringe. He bet the farm on Iraq and then, at his lowest ebb of approval, doubled down with his immigration bill. Does he have any political acumen at all?

hdhouse said...

bush's chances of passing gas exceed his chances of passing off some half-baked neo-rabid-con on the United States. The confidence factor he possesses is about as high as Jeff Ganon's moral stature...wait Jeff Ganon...the embodiment of the neo-con manlyman...perfect. I'll write my Senator immediately.

Revenant said...

bush's chances of passing gas exceed his chances of passing off some half-baked neo-rabid-con on the United States.

Congress has a lower approval rating than Bush does. Going toe to toe with them over judges -- or just about anything else -- makes him look good in comparison. That's why his approval ratings tend to go up when he's sparring with Congress over something, and down when he's cooperating with them.

You're right, though (it was bound to happen eventually) that Bush isn't going to appoint a neoconservative to the Supreme Court. Neoconservatives are typically moderates or liberals on social issues (being, for the most part, ex-liberal defense hawks), and that's exactly what Bush *doesn't* want on the court. He'll appoint another Alito or Roberts, probably.

hdhouse said...

Rev...sorry, but that congress has a lower approval rating thing doesn't fly.

probably 80% of congress will be reelected no matter what.

Bush's chances, if he were running again would be nil.

congressmen are wildly popular in their districts as are senators in their states..overall, who cares what the overall rating is because it doesn't apply to local vote.

national referendums and elections are something else as mr. bush would have found out.

Revenant said...

Rev...sorry, but that congress has a lower approval rating thing doesn't fly.

It is a fact that Congress has a lower approval rating than Bush, so I don't care if you think it "flies" or not. It is not my job to make sure you're in touch with reality.

probably 80% of congress will be reelected no matter what.

That's got nothing to do with anything.

overall, who cares what the overall rating is because it doesn't apply to local vote.

You're obsessing over the election chances of one of the few men in America who is Constitutionally forbidden from running for office in 2008. We're not talking about chances of re-election; we're talking about popularity. In a Bush vs. Congress battle, the public is more likely to be on Bush's side than that of Congress. That helps him, and by extension helps the Republican candidate in 2008.

The partisan moderate said...

One of the problems that we have in judging nominess is that the so-called experts doing the judging (the ABA and the elite legal academy) are pretty far to the left. There have been a number of studies cooroborating this.

Neither Roberts nor Alito were that far to the right. Yet, someone such as Ginsburg who is more liberal than either of them is conservative is considered a moderate or a moderate-liberal by the legal academy and draws over 90 votes, while Alito is almost filibustered.

Bush will probably nominate someone (if the opportunity arises) who has a mainstream conversative such as his past two nominees. These are people that outside the legal community are considered moderate-conservatives but within the legal community are unfairly uncharacterized as ultra-conservative.

If Bush gets to appoint another justice, he should probably nominate a female or minority or both. Perhaps Maureen Mahoney, who has been called the "female John Roberts".