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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