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Hold on to Your Wallet


Even though John G. Roberts is not Diane Wood, the Bush Administration hopes that his short judicial tenure makes him appear to be a moderate. But, after some serious digging, a more comprehensive view of Republican judicial politics comes to light.

Nixon first promised to appoint a "strict constructionist" to the Court in 1968 while running for President. By 1972, we had William Rehnquist. However, after helping to organize the Federalist Society, Lee Lieberman embarked on a cautious strategy. Appoint Society-friendly members onto the DC Circuit Court of Appeals and then nominate him or her within a couple years to a Supreme Court vacancy. This was done every time after Sandra Day-O'Connor came aboard in 1981. (Reagan too, had promised to nominate a woman to the next vacancy.) But when Robert Bork was blocked in 1987, followed by Doug Ginsberg...Lieberman had to settle with Anthony Kennedy. She did pick non-DC Circuit judges in David Souter and Clarence Thomas, but resumed the trend with Roberts.

In fact, there is reason to think that Miguel Estrada was the planned nominee for the first vacancy. Roberts was merely the cover. But as Estrada refused to put in his name for reconsideration, now we have our new nominee: someone who just about anyone could have seen coming. But for those outside the conservative cognoscenti knowing how closely allied many of these jurists are is rather difficult.

But so far the Supreme Court is not deflecting as much attention as might be hoped. And while plenty of bad news awaits Bush in the future, the New York "Times" has a particularly ominous article about United Air Lines. Not because of potential scandals or Administration wrongdoing, but because there is reason to suggest that the little-known Pension Guaranty Benefit Corporation may be the hook for $10.1 billion in assets.

The article points out that the taxpayers must cover shortfalls when other contributor firms to the PGBC cannot meet the demands of defaulting pensions. This could create a "cascading effect" wherein each contributor firm would have less and less motivation to keep its pension fund and let go. Should this come to pass within the next year or so pensioners could find themselves a little thin in the wallet.

But if you think the national mood seems pissy now, just wait until more media outlets pick up on the distinct possibility that the American pension might become a thing of the past.
posted by Thomas at 9:41 PM 0 comments

 
The Case for Wood (or Any Moderate)

Supposedly the White House was caught off-guard by Justice Sandra Day-O’Connor’s resignation. From the moment Bush entered office there has been higher-than-normal expectation of Supreme Court turnover. While some Presidential terms had passed without any changes in the Court’s complexion (think Jimmy Carter), very few anticipated it such terms would occur consecutively. Unlike many Presidents who had little time to ponder who they would nominate, Bush has enjoyed several years.

Conventional wisdom would point to the President selecting an archconservative would could shift the balance of the Court indefinitely and put conservatives at the helm of every branch of American government. Yet it may be the case that Bush and his staffers anticipate multiple vacancies, not just one. And for that reason, they may decide to replace the Court’s first justice with an unexpected choice: a judicial moderate.

Bandied about by Legal Affairs magazine in its pre-election issue was the Hon. Diane Wood of the Seventh Circuit. She was thought to be on a shortlist for the Supreme Court, if Kerry won that is. But her rulings are not particularly liberal. She did dissent from a decision to force Indiana women seeking an abortion to listen to adoption counseling first. But she also interpreted a case about schools having the right to edit student newspapers to include college papers in Hosty v. Carter. And most helpful to President Bush, Judge Wood hails from a Midwestern circuit, a fairly staid one at that, and is a woman. She’s a nominee that no Republican lawmaker might approve of, but on paper she makes Karl Rove’s heart leap. A pro-choice woman from an electorally tight region of the country replaces Day-O’Connor.

Sound crazy? Then why did National Review and other conservative groups stridently denounce the idea of nominating Alberto Gonzales? They know that the White House wanted to be seen a progressive with his choice, elevating a moderate Latino jurist. In sort of an odd political calculus, there is probably a fear of making the court less diverse. If a man replaces Day-O’Connor Bush probably wants that person to be a minority preferably Latino because of their growing political clout. The departure of William Rehnquist, John Paul Stevens, or Anthony Kennedy would either have neutral or positive impacts on the Court’s diversity.

And then there’s the whole posturing within the Senate. If Bush picks an archconservative judge to replace Day-O’Connor it’s a guaranteed showdown. Further, it reaffirms Democratic and liberal contentions that the far right is really in control on issues from Terri Schiavo to Iraq. But if he picks a pro-choice woman like Wood or a moderate minority like Gonzales, suddenly the Democrats are in an ugly position. If they reject Bush’s nominee they appear to be the more ideological and partisan of the two sides. Should they approve her, opposing future nominees becomes a tougher, more technical process.

Expect Bush at that point to nominate Federalist Society members like J. Michael Luttig and Edith Clement to future vacanies. These younger judges will then populate the Court for decades, ensuring that along with Clarence Thomas, and Antonin Scalia there will always be a firm conservative block on the Supreme Court for years to come. But this only happens if the GOP retains control of the Senate potentially through 2006. And that’s where the need for a moderate comes back into focus.

With President’s Bush’s approval ratings dropping, he needs to help paint the picture of a “kinder, gentler Republican Party”. He knows how aloofness strangled his father politically and wants to appear to be the force pulling the GOP back from the ledge to something more inclusive. While the Democrats would need to pick up five states (and Bernie Sanders’ leadership vote) to regain the Senate in 2006, public opinion suddenly can change toward widespread change. If nominating a moderate helps Lincoln Chafee in close race or aid a Republican in picking up Minnesota’s open seat, Bush will do it. After all, he knows his agenda is totally dependent on the complexion of Congress. And every person in the White House is cognizant how quickly that can change.

Confronted with this nomination strategy, liberals might wonder what they should do…beyond buying more potato chips and dip to watch outraged conservative pundits take aim at the President. If a moderate nominee is selected, liberals and Democratic lawmakers ought to show minimal resistance. That way, there’s a greater sense of uncertainty what might happen when the next vacancy occurs. It also removes the chance for political hay from the Senate invoking the nuclear option. Those living in states with pro-choice Republican Senators can write in support of the nominee. And if that’s not you, there’s always holding off on buying big ticket items. A boycott of one might seem inconsequential, but sinking consumption is the one thing that worries Republicans of all stripes. Simply waiting until after the nominee is confirmed to purchase expensive items will help to increase the level of economic and political uncertainty among Bush’s base, which consequently puts the heat on him.
posted by Thomas at 1:10 AM 0 comments

 
Anything But a Supreme Surprise


Let’s dispel two bits of conventional wisdom about developments surrounding the Supreme Court.

First, any pundit, politician, or journalist who told you he or she was surprised by Day-O’Connor’s resignation is either lying or not very astute. She actually wanted to retire in 2000, but felt that she should wait until the election was over. But after being summoned to adjudicate its outcome, America’s first female justice probably decided to wait until after the 2004 election. How do we know? During the 2000 recount, Day-O’Connor and her husband attended a Christmas party where she was heard to say that she wanted to retire. As it is technically illegal for any federal judge to make a statement that implies how they would rule on a pending decision, or a decision that is in the pipeline, she had to phrase it this way to hint that she felt Bush would win the case, the election, and then she could resign in July of 2001.

But the fact that her comments at the Christmas party were leaked to various media outlets meant that she may have sought to clear her conscience by allowing another election to pass before leaving the bench. My guess is that her initial opinion of Bush was that he would govern as a moderate and select a more traditional, moderate Republican. And while Bush is certainly anything but his father in terms of political stance, she may get her wish.

A Rehnquist resignation would have been good news for conservatives and bad news for liberals, hands down. There are no shortage of legal thinkers in the Rehnquist mold, who are more police-power than libertarian, more classical contract theory than living constitution. And as a white man, Rehnquist’s departure could only help the diversity index of the Court. But because Bush would want someone who would be around for a long time (and hassle the left), the frontrunner would be J. Michael Luttig of the 4th Circuit. Luttig is actually a Texan by extraction, and his parents were killed in an abortive carjacking over a decade ago. That visceral quality is exactly what heavy-duty Republican strategists want, someone who will be very unlike to deviate from a specific ideological line. In Luttig’s case, every case allows him to punish the murderers vicariously through draconian and archaic opinions.

Day-O’Connor’s resignation poses a bit more of a problem. With the Senate in Republican hands, in theory Bush could nominate any person he wanted. You don’t need to have a law degree to serve on the Supreme Court. Nevertheless, social conservative groups are already frothing at the mouth at the suggestion that the President will nominate Alberto Gonzales. They want no part in having a moderate. And this is precisely Bush’s problem. He and brother Jeb sat on the sideline in the Terri Schiavo affair because they realized that it could cost them with moderates. Now he realizes that no matter who is chosen, some conservatives and Republicans will be unhappy.

And with Arlen Specter, one of the GOP’s most liberal members, controlling the Senate Judiciary Committee, you can understand why the White House will not promise any nominations until after the G8 summit ends in Scotland on July 8th.
Just don’t be surprised when you start hearing more Republicans crying about his choice than Democrats.
posted by Thomas at 4:06 PM 0 comments