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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