Because the best things in life are free.

 

Biggest Success Story of 2004: Native Americans

Thanksgiving journalism is the perfect time to examine Native Americans. Seldom does it appear to happen. Perhaps this is because ever since the “First Thanksgiving” of 1621, the fate of Native Americans has moved backwards. That is, until 2004. Just as the National Museum of the American Indian opened in Washington, it appears for the first time in a long time, there is something to cheer about on the reservation. Casino gaming has yet to touch every tribe equally, but many have grown richer. Native Americans are the fastest growing racial grouping, and Native American employers are hiring at a frenzied pace. So it should come as no surprise that the National Congress of American Indians wants to build a new headquarters in DC.

What might surprise you, however, is that the largest recipients of donations by Indian gaming lost their elections. In fact, Ben Nighthorse Campbell retired after facing a Senate investigation into impropriety. But nevertheless, Native Americans flexed incredible muscle. They single-handedly revived the moribund Senate campaign of Brad Carson in Oklahoma. Their money also proved useful to Patty Murray of Washington State defending her seat from George Nethercutt. But the ultimate beneficiaries may be the tribes themselves. Revenue from gaming allows them to diversify and create wealth of all forms. At first, dividends from this wealth will likely improve schools and other dilapidated infrastructure across America’s reservation system. But once the floor is swept clean, what will be next?

One possibility: reparations for lands seized in the 19^th century. Another would be buying back that land to give displaced tribes the opportunity to live in their ancestral homes. Uncertainty rules in large part because few non-Indians in America seem to understand Native Americans. Would the tribes seek to avenge themselves for prior mistreatment? Or only build up the country by building themselves up? So far, signs point to both.

Among the most significant pro-Native American legislation is the Native American Graves Protection and Repatriation Act. It prevents excavators from touching Native American remains without the permission of the individual’s tribe first. When a nearly 9,000 year old skeleton was found in Washington State and identified as “Caucasoid”, local tribes invoked NAGPRA. Anthropologists desperate to study the Kennewick Man, named the town where he was uncovered, are livid that Native Americans have blocked them from studying one of the oldest human remains found in the United States. NAGPRA demonstrates the desire of its supporters to protect Native American remains from being recalled from the grave.

In Hawai’i there is evidence of a more positive impact. The Bishop Estate, a trust held by the descendants of the deposed Hawaiian monarchy, used its land holdings to create and fund Kamehameha Schools. In the process Kamehameha Schools have become the richest private primary school in America. It also refuses to allow any students who are not of some Native Hawaiian ancestry to attend. Nevertheless, the quality of education at Kamehameha is first-rate, empowering many children coming from impoverished circumstances.

So even though the new NCAI headquarters has yet to break ground, the growing stature of Native Americans cannot be denied. But as we have seen, just what impact it will have remains to be seen.

posted by Thomas at 2:27 AM 0 comments

 

Texas Justice

House Majority Leader Tom DeLay thinks he will be indicted. He had the Republican House Conference change its leadership rules because he believes the indictment is fait accompli. But that does not mean it will happen, and even if it does, will DeLay be convicted and jailed?

Unpaid is going to say no to both. The District Attorney for Travis County (where Texas’s capital city Austin sits) has noticed a great deal of state election law violations regarding the political action committee Tom DeLay founded. The full name of the PAC is Texans for a Republican Majority (TRMPAC). The DA, Ronnie Earle, happens to be a Democrat though by all accounts the elected office of district attorney in Travis County is a non-partisan one. After nailing three top members and organizers of TRMPAC, speculation remains high that Earle will arraign both the Speaker of the Texas House of Representatives, Tom Craddick, or DeLay himself. The GOP in both Texas and Washington is ready to smear Earle into oblivion. And that should tell you something.

Earle knows convicting DeLay would be next-to-impossible. However, he may wait until he has enough evidence to arraign Craddick, and call DeLay as a witness. If there’s a real political motivation to the D.A.’s strategy, getting DeLay under oath would be the equivalent of frying him. For his part, Earle has few good options. State law in Texas is quite harsh about corporations donating to legislative elections. If he prosecutes, immediately it is a witch-hunt. If he does not investigate, he becomes just another spineless Democrat. With Tom DeLay the most powerful man in Washington, the major media is afraid to allege his demise only to be shut out of the Capitol if they are wrong. But it doesn’t look good even with the set of indictments Earle already has.

Craddick and DeLay already can be called as witnesses for the prosecutions for the current indictments. Many of DeLay’s closest fundraisers may be staring at very hard time in the Texas prison system. Not to mention that any testimony given by DeLay can be used by federal authorities for additional investigations. And then, just imagine if faced with charges, DeLay has the chance to turn state’s evidence. The ensuing rabbit-hole of corruption could lead all the way to China (literally). Earle has said investigating the case is taking a long time because he said, “it’s like watching clowns climb out a Volkswagen. There are a lot more in there than I imagined.” Lou Dubose, who co-wrote the book Shrub with Molly Ivins, speculates that the Republican Party of Texas may be guilty of even greater violations than TRMPAC.

DeLay’s actions indicate he feels an indictment is coming. This would not materially affect him, but a long trial in Austin would cause serious disruption. House Majoirty Whip, Roy Blunt, would invariably help DeLay manage things while Hot-tub Tom was away. However, should DeLay leave the House under any circumstance, there is likely to be a fight brewing between moderate and more conservative Republicans. Secondly, if DeLay’s fundraising machine is eviscerated, the Congressional races in ’06 could be ugly. But most of all, DeLay’s disappearance would eliminate the biggest enemy to John McCain. Already investigating DeLay as a member of the Indian Affairs Committee for his involvement in a tribal gaming scam with two fundraisers in Louisiana, McCain knows DeLay is the reason he lost to George W. Bush in the 2000 primary season. Seeking comprehension campaign finance reform, McCain would love nothing more than to use DeLay’s misbehavior as the central plank of 2008 run.

And that should explain more or less everything. DeLay knows even if he survives the indictments, he will have to answer under oath anything Earle wants in Austin, and anything McCain wants in Dirksen. So while the Republicans in the House circle the wagons, realize in part they already have conceded defeat.

posted by Thomas at 3:56 PM 0 comments

 

Colin Powell: Mr. Unelectable

Colin Powell is unelectable. Judging by the rumors, you would think he was the most popular man in America. Having never held elective office before, Powell was cajoled by many to run against President Clinton in 1996. And now, some want him to challenge Hillary Clinton for the New York Senate race of ’06. We will say it again and again though; Mr. Powell is unelectable, despite being a wonderful and dedicated public servant.

In general, African Americans rarely attain national office if they are Republican. Julius Caesar Watts represented his native Oklahoma until 2002, but Mr. Watts was also a well-known college football star at the University of Oklahoma in his younger days. Maryland Lieutenant Governor Michael Steele is often-cited as another “up-and-coming” star. But nearly every other black person in elected office sits at the local level. This is not said to denigrate these offices, but to illustrate that strangely, black Republicans seem to do poorly when more is at stake. Democrats do not fair much better, failing to ever elect more than a handful of black Senators, no black President, no black governors and black congressmen only because of district gerrymandering.

Such gerrymandering also means that while Powell could run for any Congressional seat in New York State, nearly all are “safe”. To win, he would likely need to run for the Senate in 2006. And for Powell, that is a big challenge. The assumption is that Powell would magically win over African Americans to the Republican Party. He is more moderate than Alan Keyes, but seeing how dismal Keyes did in both 1996 and 2000…that is still a speculative idea. What could happen is how Alfonzo D’Amato won the Senate in the Empire State…win the swing voters upstate.

One problem…that’s a tall order for Powell, appealing to upstate New York, and specifically vote-rich Buffalo. His achievements on issues like free trade might not sit well among idled factory workers. Not to mention the fact that he did not argue very hard to allow (using free trade as a modicum) for the importation of cheaper prescription drugs from Canada. His biggest asset is name recognition, and going against Hillary Clinton that is not much of an advantage. However, name recognition is usually a force to be reckoned with. Elizabeth Dole used it to win a Senate seat in North Carolina. Both of the Bush sons found it instrumental in being elected governor.

So what is Colin Powell’s best option? He would be an excellent choice for Vice President. Dick Cheney has done much to alienate people in both his own party and outside of it. Powell is erudite but not secretive. Powell is forthright and has a decorated military career. But as much as he has served as a cheerleader, he is not an unrepentant hawk. All of these characteristics make him a tremendous contrast to Dick Cheney. No matter who runs for President on the Republican ticket in ’08, he or she ought to give the outgoing Secretary of State a call. He may be Mr. Unelectable, but he’s not Mr. Un-likeable.

posted by Thomas at 10:01 PM 0 comments

 

Will the Senate Question Alberto Gonzales about Panama?

With the US Senate ready to begin confirmation hearings for Alberto Gonzales to the post of Attorney General, there is an air of uncertainty around the Capitol that is almost palpable. No one is quite sure how much antagonism Gonzales will face from the Democrats on the Hill. Because of Arlen Specter’s brash announcement on judicial nominees, many Judiciary Committee members may be keen to ask him about abortion and other hot-button issues. But the most important question will have to with an oft-cited memo Gonzales wrote to advise the President on observing the Geneva Conventions toward Taliban members and Al-Qaeda operatives. Gonzales has been criticized roundly for such zingers as calling provisions in the treaty “quaint”. But it appears those comments are overshadowed by a remark about precedent. As White House Counsel, he mentions that already there had been a consensus in 1989 that the Geneva Conventions did not apply to the US action taken against Panamanian dictator Manuel Noriega. However, Gonzales duly notes that then President George H. W. Bush decided to observe the treaty anyway.

So who knew that the Road to Abu Ghraib went through the Panama Canal? The parallels between the American intervention in Panama and the Iraq war are surprising. Both seemed elective conflicts by President Bush with a degree of occupation as well as the capture of a former US ally running each country as a dictator. Or that both of these strongmen were involved in a global proliferation of bad things infiltrating the US. For Noriega it was drugs, for Saddam Hussein, weapons of mass destruction. In both instances, not just Gonzales but other top administration attorneys believed the Geneva Conventions did not apply. The January 2002 memorandum does not explain why.

The answer may be timing. US Marines did not arrive in Panama until December of 1989, a month after the fall of the Berlin Wall. It has been alleged, however, that preparations had been made throughout the year. Could it have been that policy advisors in Bush Sr.’s administration already believed that the Geneva Conventions were “quaint”, but that the presence of the Soviet Union meant serious repercussions if the US opted out. Yet, reluctance by the Soviet Union to intervene in East Germany demonstrated that the old “bipolar paradigm” was gone. The invasion of Panama would be the crucible to try a new strategy. That is, until Bush Sr. got cold feet and demanded the Conventions be adhered to.

If true, does this revelation impact Gonzales’ nomination to Attorney General? The answer is yes. The nominee must explain how he would try any person under US jurisdiction not covered by the Geneva Conventions. Noriega, after all, was tried on drug charges in absentia only to be caught in Panama and sent to federal prison in Florida. If the Geneva Conventions had not been in force, could Noriega have been put in a military tribunal and executed? And now that the treaty has been discarded not only against the Taliban, Al Qaeda but also members of the resistance in Iraq, what will Gonzales recommend? What is his strategy against Zacharias Moussaoui, Jose Padilla, and Lynne Stewart? If the 2002 memo is any indication, Gonzales will be just as draconian and heavy-handed as his predecessor.
posted by Thomas at 4:26 PM 0 comments

 

Decision ’04: Democrats Take a Dive

During the Second Punic War, faced with a tremendous defeat at the hands of Hannibal, the Roman consul Quintus Fabius Maximus Verrucosus elected to combat the Carthaginians by avoiding them, chasing and provoking the army until Hannibal attempted a full-on attack. At this, Fabius would withdraw. Such Fabian tactics, as they are now eponymously called, always have reappeared throughout history only to disappear again because they are unpopular.

And precisely for this reason, could it be few suggest the real reason the Democrats were beaten soundly in 2004’s election is because they intended to lose all along. “Unpaid” knows there is little proof of collusion, but coincidences do matter. The first has to be a curious decision by Al Gore not to run for President again in 2002. Already other candidates had begun to raise money, but Gore gave no reasoning why not 2004. With the war on Iraq still in planning on the US largely terror free in 2002, Gore may have considered Bush impossible to beat. And so did the entirety of the Democratic Party establishment from Terry McAuliffe to Democratic Leadership Council Chairman Al From, to Bill Clinton himself. The idea was to run a solid, predictable campaign in ’04 and regroup once the worm had turned in ’08. This strategy was pioneered by none other than Richard Nixon. Upon losing to Kennedy in 1960 (and considering the limiting effect of the 22^nd Amendment) he chose not to oppose Lyndon Baines Johnson in 1964 at the height of his popularity but instead four years later with the country on the brink. But Nixon also was reluctant to face a war-time president.

The man who crashed the party in ’02 was Howard Dean. His anti-war stance electrified the Democratic base despite the fact that few elected Democrats would criticize the war beforehand. Yet for all of Dean’s effort, his own party decided to crush him with a vicious campaign of negative ads in violation of election law by a group called Americans for Jobs, Healthcare and Progress in Iowa and New Hampshire. Funded by individuals very close to John Kerry, Dick Gephardt, John Edwards, and Wesley Clark, the ads refused to acknowledge their campaign ties. Unsurprisingly Dean lost the Iowa caucus to John Kerry. But did Dean decide to throw the fight? If he is successful in his bid to win the Chairman of the Democratic National Committee, it seems plausible. Dean would get a job with plenty of face-time and the chance to be aggressive attacking policies he doesn’t like, but without the rigors of the campaign. Instead he would do what he is best at: raising money from previously parsimonious donors. So should the job at the DNC turn out to be Dean’s golden parachute, why did the election proceed to be so closely fought by both sides?

The answer is that it’s an illusion. The Kerry campaign again and again made odd decisions after securing the nomination. Most noticeably it focused nearly all its energy on Florida, Ohio, and Pennsylvania. Massive voter registration drives and millions of dollars spent in advertising focused on a swath of states that predictably split as they did in 2000. In fact nationally, the only states that shifted from “red” to “blue” or vice versa were Iowa, New Mexico, and New Hampshire. Each was so closely decided in 2000 that such shifts are not even statistically significant. Bush ran hard to attract more voters to be sure, but picking up Iowa and New Mexico were not why he won. The states he won in 2000 gained electoral votes overall, allowing Bush the freedom to lose New Hampshire without picking up any new states. Kerry would have needed to win in the South or Southwest. Kerry and other Democratic Party members refrained, focusing only on Ohio and Florida. While victory in either one would have been enough to propel Kerry to victory, such a strategy allowed the GOP to focus nearly all of its energies there. Losing the element of surprise as a challenger doomed Kerry’s tactical chances before the voting ever began. Republicans wanted to claim this was all a reflection of Kerry’s personal tendency to be a “flipper-flopper”.

Au contraire. The Democrats are now poised to humiliate Bush akin to Napoleon’s invasion of Russia. The ’08 Republican nominee will have no name recognition because of the vice president’s vow not to run to succeed Bush. Kerry, Edwards, Dean, and even Gore can run with an edge in name recognition over every Republican candidate with the exception of John McCain and Bush’s younger brother John. McCain would be the oldest President ever elected, John “Jeb” Bush has said he will not run in ’08, suggesting that a relative outsider…an “anti-Bush” …would be chosen. The Democrats would likely choose a candidate from a “red state”, where at least among sitting governors or Senate the list of viable candidates is rather short. But also note, none of the previous Democratic candidates would qualify. Edwards lost his seat while the others are from “blue” states, including Hillary Clinton.

Still, expect to see very little public news about the process until 2006. The Democrats, until that time, will play up their defeat while quietly raising money and marshalling resources for the mid-term election. While the situation in both the economy and Iraq is important to the campaign, the Democrats also must choose when and how to oppose both the President and the Republican majority in Congress. That dance begins on November 16^th, with Bush hoping to confirm White House Counsel Alberto Gonzales and the next Attorney General of the United States.

posted by Thomas at 2:48 PM 0 comments

 
Ten Reasons for Liberals (and Moderates) Not to Fear Bush's Second Term

There was really only one reason for a liberal to vote for Bush. And that reason was that a second term would be just enough rope for Bush to hang himself. Your conservative friends poke fun at you, your accomodationist liberal friends talk about how they can appeal to someone who lives in a red state, and your defeatist progressive pals are prepping for their move to Canada. Before you start worrying about having to wear a blue star on your lapel, here are ten comforting thoughts about a second Bush term. Ten reasons to remind yourself that no matter what Bush says he’s going to do, know in your soft heart that his bluff is about to be called.

Foreign Policy: Forget Iraq for a second. Tony Blair faces a killer reelection campaign in May. North Korea's nuclear program continues unabated, and Iran cannot effectively be deterred with our energies focused on Iraq. Add to that a tenuous leadership situation in Saudi Arabia, Arafat on his death bed, Pakistan President Musharraf being chased by assassins, China-Taiwan tensions, and mixed signals from Russia, and Bush’s unilateral strategy will have its day of reckoning shortly.

Social Security: With corporate scandals still causing tremors in courtrooms across America, guys like Grover Norquist say with a straight face that a person’s hard earned money is safer in the stock market than Social Security? Um, sure Grover, you keep thinking that while the Calfornia state employee pension fund, CalPers, is still suing Enron for misleading it as a major stockholder. Progressives and liberals alike should not be afraid, privatizing SSI will be so costly, that it may bring down the house of cards altogether. The reason is because today’s workers pay for today’s beneficiaries, which means that if younger workers stop contributing, it would fail sooner than when that generation retires. The impending collapse of Social Security is likely to have huge repercussions on the economy to say the least.

Education: Yeah that’s right, No Child Left Behind is a success. You heard me, look at all those schools we have punished with less funding for failing students. That is what I call accountability. Too bad the real plan is to crush the public service union by undermining schools, closing them, and offering vouchers to the disenfranchised. So now someone who earns $24,000 a year will earn even less to help ensure your child doesn’t fall behind. Right…

Immigration: The rural vote was often key to Bush’s success with special “Farm Team” signs hoisted around various events. Boy, does the President ever know how to return a favor. His guest worker program ensures that the “Farm Team” will get buried by waves and waves of Latin American workers who will undercut their wages. What’s worse, the guest worker program means no one’s job is safe eventually, once it proves successful in the Heartland.

Taxes: Simplify the tax code often means making it more regressive. The more you have, the more you can cheat. If a national sales tax is passed, it eliminates the IRS and all of its lazy employees. Plus it pushes the tax burden squarely on those struggling to get by, often who voted Republican. There is a God after all.

Health Care: More choices, better care. George Bush should get credit for creating single payer health care in America…it’s just called Kaiser. The government may not administer the program per se, but the future isn’t some clunky HMO. Instead it’s the physicians' Auschwitz known as “big medicine”. The prescription drug benefit is dead-on-arrival…as its funding source has yet to be appropriated. And if one is found, expect the drug companies to raise prices on otherwise prosaic drugs and supplies like insulin. Add to the fact that California stands to benefit from being the stem cell research oasis nationally and that pie on Bush’s face is going taste awful good in four years.

Abortion: Republicans love to talk about abortion when it fires up the base, but never do anything toward it. No matter how conservative the Supreme Court gets, they cannot prevent individual states from ruling on the practice and keeping it legal. No one likes unwanted pregnancy, but banning all abortion would just create an underclass of unwed mothers who need more welfare. See how this works? This shame felt by these unwed mothers will shame the next generation of women into returning to a life barefoot, pregnant on the kitchen floor married to her dud husband because there is no longer Aid to Families with Dependent Children.

Energy: Bush’s terminally short memory left out on his Ohio campaign stops any talk about the big blackout of ’03 which started south of Cleveland. Oh wait, perhaps it’s because he has done NOTHING about it. He wants to improve domestic energy production if it involves drilling a hole somewhere. In Alaska, local support for ANWR is big, but in Florida support for Area 151 is not. Incentives for public transportation, hybrid cars, and even a hydrogen based engine are all missing. Where's my Jimmy Carter-approved solar panes and sweater?

Gay Marriage: If you never thought you would live to see the day conservatives were against marriage, look alive! But see, the conservative vision of marriage is one where a white family, in accordance with Biblical teaching, raises white children so that Catholics, Jews, blacks, and other undesirables do not “out-breed” your kind. The thinking is, if married gays can marry, they can adopt and indoctrinate their children to be gay, thus reducing the supply of desirable white children in America who can be saved. Who adopts the Catholic, Jewish, black, and other minorities? Their own kind, of course.

Terrorism: George W. Bush has done little if anything to make America safer. During his time as President he has eviscerated the government from top to bottom. There will be another attack, and it will affect you, even if tangentially. How the Bush Administration rationalizes that, and his inability to capture bin Laden, ought to be a curious sight indeed.

posted by Thomas at 4:26 PM 0 comments

 
Specter of Dissent

With Senate Majority leader Tom Daschle defeated, President Bush re-elected, and the Texas redistricting working according to plan, the Republicans stand at the very apex of their power. An ambitious agenda for 2005 awaits, but it turns out 2004 is not yet fait accompli for the future. Already, “Unpaid” explored Bush’s options if Chief Justice William Rehnquist either retired or died during the current Supreme Court term. Somehow, the story gets even weirder. It appeared that Bush had a yellow-brick road to any nomination, with the Senate slipping even more into Republican hands. Arlen Specter, the Pennsylvania senator set to succeed Orrin Hatch as Judiciary Committee chairman announced that he would approve the hearing for no judges who want to overturn Roe v. Wade. He then issued a press release a day later saying he would apply “no litmus test” in regard to abortion. Nevermind the fact that Specter was challenged in a primary with an evangelical candidate, Pat Toomey, and that Bush endorsed Specter giving him a close win. Nevermind that the general election against Democratic congressman Joe Hoeffel was also too close for Specter’s comfort. The 72-year old Specter who may never run for office again suddenly had the President by the tail.
Unless Bush invokes the recess appointment tactic and one of the justices leaves the Court while the Senate is not in session. In theory, Bush could wait until the Senate resumes on November 16th. However, with more Democratic senators this time around, there could be a costly showdown in the waning days of 2004. Recall too that if Bush utilizes the recess appointment it would expire in 2006, with the potential that the balance of the Senate could reset to Democratic control. Already Democratic strategists have mentioned that more Senate seats are up in “blue states” come 2006, but no Republicans look particularly vulnerable yet.
Still, what brought Specter to make comments about this in the first place, even if he now downplays them? Until 2002, Specter was the only Republican senator who was Jewish. After the death of Paul Wellstone in Minnesota, Republican Norm Coleman joined Specter. This is not to imply that Jews are underrepresented on Capitol Hill. It is just that the rest of them, with the exception of Virginian congressman Eric Cantor, are Democrats. And specifically, Specter’s retraction mentioned he had no desire to apply a litmus test on abortion. But what about say, cross-burning? Bush already has utilized the recess appointment tactic already, to appoint Charles Pickering to the Fifth Circuit of Appeals and William Pryor. Both of them stalled in the Senate not because of abortion concerns but instead civil rights. Pickering failed because of his leniency to cross-burner Daniel Swan in 1994. Pryor, conversely, believes that public prayer and the Ten Commandments are not out of place at government offices.
It is also true that Specter is pro-choice. Yet, he does not need his judiciary chairmanship to stop nominees like Janice Brown of the California Supreme Court or Priscilla Owen of the Texas Supreme Court. Unless pro-life Democrats defect (which seems unlikely for they could have other reasons to dislike these nominees), Bush stands to get strung up by his own party. Maine’s two female senators, Olympia Snowe and Susan Collins, combined with Rhode Island’s Lincoln Chafee, Specter himself, and three other Republicans: Lisa Murkowski, John McCain, and Mel Martinez would certainly not dismiss all conservative judges, but would like toss Owen, Carolyn Kuhl, and Janice Rogers.
Therefore, what Specter really means is something along the line of: “Go ahead, nominate conservative justices but be forewarned that Pickering and Pryor will not make it out of committee, whereas Owen, Kuhl, and Rogers will just be voted down on the floor of the Senate. Miguel Estrada and Alberto Gonzales are still welcome. Now go send Colin Powell to Israel before Arafat’s death causes a real problem.
Until there’s true transparency about Rehnquist’s health, Specter probably will not change his tune.

posted by Thomas at 8:07 PM 0 comments

 
Election of Remedies: The Rehnquist Factor

Imagine the following scenario. During the 2000 election recount, a member of the Supreme Court dies. With Congress out of session, President Bill Clinton nominates a new justice to serve as a recess appointment. The new justice votes to continue the recount and affirm the Florida Supreme Court ruling in Bush v. Gore. Al Gore becomes President. With this scenario as a backdrop, conservative Chief Justice William Rehnquist announced his diagnosis with thyroid cancer last Monday. He asserted he would return to the bench today. That did not happen.

There is no guarantee that the Supreme Court will be involved at all in the election aftermath. Secondly, the Senate will resume on November 16th. If Mr. Bush wants to replace William Rehnquist without advice and consent of the Senate, he must do it within two weeks. Or he must do it after the Senate adjourns for good. Given that the Senate is under Republican control, one wonders if Bush would simply wait a week or two, and then make his appointment. Bush v. Gore, after all, the US Supreme Court did not get involved until December of 2000. Yet, the Senate has the filibuster, and this weapon means that Bush could be deprived of this strategy if the Senate maintains quorum. Given that the Supreme Court would likely rule before Christmas, this is the riskier strategy.

Yet, the possibility remains there will be no Bush v. Gore style climax. Would George W. Bush still attempt a recess appointment? The answer here is yes. The Democrats will retain 43 seats in the Senate irrespective of what happens on Tuesday. That is enough to kill any unpopular nominee. However, the Senate is reelected in thirds. Should the Democrats lose a few more seats in 2006, this would pave the road to Bush being able to permanently appoint more conservative judges. Assuming there is no electoral fracas, Bush would likely favor this more, making his selections during the inactivity of the holiday season.

However, there is still one more scenario. If Rehnquist resigns or retires after the Senate reconvenes but before all litigation is settled...does he propose a moderate vote for himself and ensure his electoral victory or a more conservative justice after the court rules with only eight justices? (The lower court ruling would then hold in a 4-4 tie.) this, as any law student would say presents a most confounding election of remedies


posted by Thomas at 3:54 PM 0 comments