July 16, 2005

The strategic timing of the O'Connor and Rehnquist retirements?

In today's radio address, President Bush talked about replacing Justice O'Connor:
President Bush gave the nation several clues Saturday about the person he will nominate for a seat on the Supreme Court, except for the most important one - a name.

In his weekly radio address, Bush said his eventual nominee will be a "fair-minded individual who represents the mainstream of American law and American values."

His candidate also "will meet the highest standards of intellect, character and ability and will pledge to faithfully interpret the Constitution and laws of our country," the president said.

"Our nation deserves, and I will select, a Supreme Court justice that Americans can be proud of," he said, without revealing the name that many are anxious to hear....

Much of the retirement speculation - before and after O'Connor's surprise announcement - had focused on Chief Justice William H. Rehnquist, who is 80 and ailing with thyroid cancer.

Rehnquist tried to dampen expectations this week, issuing a statement in which he said his retirement is not imminent and that he would continue on the court "as long as my health permits."...

Bush said he and Senate leaders agreed on the need for a dignified confirmation process for his Supreme Court choice....
Consider this:
Before the 80-year-old Rehnquist, who is battling cancer, announced on Thursday that he was staying, there was speculation that Bush was waiting to make a double-nomination - a conservative and someone more moderate - that could defuse a contentious confirmation battle.

"With two, he could have made an effort to please everybody,'' said Nan Aron with the liberal Alliance for Justice. "For this one vacancy, not only does it cause the White House to speed up the process, but there's that much more pressure being exerted on them by radical right groups. They're under much more pressure to placate their radical right base.''

With prospects for a double-vacancy off the table, Bush is faced only with replacing O'Connor, a moderate conservative who sided with liberal jurists in some of the Supreme Court's critical 5-4 decisions.
Am I the only one who is thinking that there is a behind-the-scenes strategy going on about the Rehnquist retirement and its timing in connection with the O'Connor retirement?

For a long time we've been expecting to hear of a Rehnquist retirement. Then instead, the O'Connor retirement is announced, unleashing an intense political debate in which the Democrats revealed what some of their demands and strategies would be. Then, the rumor of an imminent Rehnquist retirement heated up, and the Democratic demand firmed up: Bush can make good on his promises to appoint a strong conservative for the Rehnquist seat, but he needs to replace O'Connor with a moderate. With the Democrats cards thus exposed on the table, Rehnquist announces he's staying as long as he can.

Can this retirement-withholding be a deliberate attempt to help Bush resist the Democrats' demand (and also to resist his own urge to appoint his friend Alberto Gonzales)? If there is no second appointment, Bush feels more pressure and has more ability to replace O'Connor with a strong conservative.

Later, after the tough confirmation battle is played out and Bush has filled the O'Connor seat with a conservative, Rehnquist can retire. At this point, Bush can replace him as well with a strong conservative. The Democrats will not only be tired of fighting, they will have lost the basis for a "package deal" argument.

They will cry: You've already appointed a conservative, so now you should give us a moderate!

A moderate to replace Rehnquist, the towering figuring in the history of judicial conservatism? Never!


Brendan said...

"A moderate to replace Rehnquist, the towering figuring is the history of judicial conservatism? Never!"

Testify, sister!

Bottom line: O'Connor screwed Rehnquist (and by extension, Bush) by ducking out first. Lord knows she had more stamina than two male justices approaching 90. And now, thanks to politics and issues of "balance," you got Stevens and Rehnquist barely hanging on when they should be down in Boca hooked up to oxygen tanks. Thanks a lot, Sandy. Frankly, Bush doesn't have the balls to ram through one or more arch-conservative candidates. Remember, this is the spokesman for "compasionate conservativism" and a Cabinet that "looks like America." He's just as susceptible to identity politics as any other modern day pol.

peter hoh said...

Clearly there's some "inside baseball" going on here, but I have a hard time believing that there's a script that everyone's following. I'm sure Rehnquist has his reasons for not retiring. This is the guy who had those stripes sewn on to his robe -- he'll do things his way.

With only one pick, I think the pressure is on Bush to pick Gonzales. Not pressure from outside, mind you, but from inside. This is the pick he wants to make, and, well, he's the President.

Bush has a reputation for loyalty -- being loyal and rewarding loyalty -- that raises Gonzales above the other potential nominees. If he doesn't nominate Gonzales, he'll have to tell him that personally, and I think that would be harder for Bush than handling the howls of protest from the right.

Uncle Jimbo said...

Dear Ann,

May you turn out to be prescient, 'cuz that is about as much as anyone on the right could hope for.


Uncle J
Military Matters

downtownlad said...

I blogged about the same thing yesterday. I think this is exactly what Rehnquist wants. A strong conservative to replace O'Connor and a strong conservative to replace him.

I think there is zero option of Bush appointing someone even remotely moderate.

I actually think Rehnquist wouldn't mind staying on for an extra term to have the new conservative voting with him. Might be a good way to extend his legacy.

Wade_Garrett said...

Admittedly, I have not read much about the potential replacements for O'Connor and/or Rhenquist, other than McConnell (is that his name?) from Utah.

However, now that I think about it Bush would be hard pressed to do better than Sonia Sotomayor of the 2nd Circuit Court of Appeals. A female Hispanic graduate of Harvard and Yale, appointed to the Federal District Court by a conservative (1st Bush) and to the Court of Appeals by a liberal (Clinton) and moderate in disposition, she seems like a winner on all counts. If there is some sort of package deal, she could be the moderate appointed to the court.

The Democrats couldn't say anything bad about her. Think about it. At least she'd have my support.

Matt said...

Sotomayor's appointment to the Second Circuit was "held" in the Judiciary Committee by (inter alia) Sen. Hatch, and she was widely considered to be on the shortlist for SCOTUS in a Kerry administration. Somehow, I'd be shocked if she were the nominee (though I think she'd be a good hcoice).

Old Patriot said...

Hope you don't mind, Ann, but I sent George Bush your name - not for the Supreme Court, but to replace Janice Rodgers Brown when he appoints HER to that position. You can move up in a couple of years...