October 29, 2005

Post-Miers, a long, unpredictable political game.

The post-Miers battle brews:
As he picks another nominee - Judge Samuel A. Alito Jr. of the United States Court of Appeals for the Third Circuit emerged as a leading candidate on Friday - President Bush faces redoubled pressures from both the left and the right. His conservative supporters are more determined than ever to demand someone with a clear conservative record on abortion rights and other social issues; Senate Democrats are emboldened by the unraveling of the Miers nomination, the downturn in the president's popularity and the indictment Friday of I. Lewis Libby Jr., a top White House official.

The handling of the next nominee is likely to be "tougher than hell," Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said in an interview Friday.

Both sides have spent years preparing for the pivotal battle over who will succeed Justice O'Connor, the critical swing vote on abortion rights and other social issues. The pressures from both sides present a political challenge for President Bush - and it could generate a battle that could bog down the Senate for months if Democrats decide to block a vote on the new nominee....

Asked if Democrats might seek to block a nominee with a filibuster, which allows at least 40 senators to block a full vote on a nominee, Mr. Schumer said, "Nothing is off the table."

Mr. Specter, who supports abortion rights, said "there was already talk on the Senate floor yesterday of a filibuster" if the president nominated an outspoken critic of Roe v. Wade, the landmark abortion rights case.

Earlier this year, Democrats used filibusters to block several appellate court nominees, Republicans threatened to change the Senate rules to eliminate the tactic, and Democrats said they would retaliate by tying the Senate in procedural knots. Only a last-minute deal by a bipartisan group of 14 senators averted a showdown....

If Democrats filibuster Mr. Bush's new Supreme Court nominee, Republicans "would have no alternative but to say that game is over" and move again to change the rules, said Senator Orrin G. Hatch, a Utah Republican on the Judiciary Committee.

"Let's be honest about it," Mr. Hatch said, "whoever the president puts up here, there is going to be screaming and shouting about it from the left and maybe from the right."
Considering how far we will be into the Court's new term by the time any new nominee can be confirmed, what is the importance of even trying to replace Justice O'Connor before next October? It seems unkind to O'Connor to prolong her stay on the Court when she has asked to leave, but now that she is participating in the new cases, it seems brusque to oust her. After all, if she genuinely wants out, she can walk away and leave an empty seat.

The President and the senators must be seeing a vast political playing field in front of them, stretching from now until next fall -- which is also, of course, the time of the midterm elections. But how to play? Bush needs to make the first move, and he must know very well that he cannot control what comes next. The Miers fiasco teaches that trying to avoid a fight can just lead to a less predictable fight. Perhaps he ought to lob the nominee that produces the very fight he thought he could avoid with Miers.

I'd like to promote the ingenious strategy of actually picking the person who would make the best Supreme Court justice. But should we have any confidence in Bush's judgment on this score, given his abysmal choice of Miers? I'd say yes, because he picked John Roberts too. When he picked John Roberts, he was, it seems, picking the best person for the job. When he picked Harriet Miers, he was trying to avoid a fight. Avoiding a fight doesn't work, so go back to picking the best person. Perhaps the most political benefit lies there as well: Bush should look competent and confident.

As for the senators, they will do what is in their interest, and maybe enough of them will see fit to bog down the Senate for the months leading up to the election season. Who would benefit from making abortion rights the topic of national conversation right now?

A lot will depend on the quality of the nominee. The stronger that person is -- the more like John Roberts -- the worse a senator looks opposing him. But what if Bush picks someone who is a highly competent federal appellate judge and who is also susceptible of being painted as a right-wing ideologue and a sop to the folks who -- if can be argued -- brought down Miers? No one can foresee how that game will play out.


Ruth Anne Adams said...

WHOLLY Unrelated, but not a lot of commenters on this one: Professor A: It looks like the old site meter will hit 3 million in about a month. How will you celebrate that milestone?

Sloanasaurus said...

Great post Althouse.

I think the Miers based criticism will only carry weight for so long. At some point arguing that a nominee is just there to satisfy the right wing becomes no different than any other "right wing nut" argument, which are to be expected anyways.

richard mcenroe said...
This comment has been removed by a blog administrator.
richard mcenroe said...

I propose President Bush nominate David Duke to the Supreme Court. Since his endorsement of Cindy Sheehan, Duke has clearly proved he can "reach across the aisle", and isn't someone who can build a really broad bipartisan concensus what we all want?

Dave Schuler said...

Considering how far we will be into the Court's new term by the time any new nominee can be confirmed, what is the importance of even trying to replace Justice O'Connor before next October?

Presumably this is a rhetorical question. 2006 is an election year. The prospects for approving anybody for the beginning of the next Supreme Court term is nil unless it begins soon.

I'd like to promote the ingenious strategy of actually picking the person who would make the best Supreme Court justice.

Well, that would be novel but it's just not our system (and never has been). The most we can hope for is the best of the available candidates. Which may be quite a bit different from the person who wouuld make the best Supreme Court justice.

And, of course, the problem remains best for whom? And according to whom? I know I need not lecture you on this but Supreme Court justices are not merit appointments they're political appointments. And we can expect political considerations to rule in whomever is ultimately selected.

I'd certainly like someone who's well-qualified for the job. But I'd also like someone whose confirmation process won't bring the government to a halt for a seemingly interminable period and whose confirmation process won't do harm to the Republic.

I honestly don't get the “destroy the village in order to save it” approach that so many conservatives (not you, Ann) seem to be spoiling for these days.