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 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.
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 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 Affairsmagazine 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. If this seems too passive for you, there's always helping to register new female and Latino voters.

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Comments

5 Comments

I'll try to avoid the snark ...
and put this nicely.

This

will

never

ever

happen.

Ever.

You might as well expect Josef Stalin to give a White Russian prince a seat on the kangaroo court.

You might as well expect Al Capone to allow a competitor to open a speakeasy next door to his.

Do

not

think

for

one

moment

that

Bush

will

nominate

a

reasonable,

moderate

person.

Not for a second.

by Thresholder 2005-07-04 12:46PM | 0 recs
Unrealistic
It's not very likely that someone described as being on John Kerry's short list of SCOTUS nominees would be tapped by Bush. However, I think it is likely that Bush will tap an experienced appeals court judge, and I don't see how someone previously confirmed by an overwhelming margin and likely to get a favorable ABA rating can be successfully opposed. Luttig, Clement, Garza, Alito, Jones, etc are just the Republican equivalent of Ginsburg & Breyer. A lot of people here may be unhappy about such a selection, but it's the virtually inevitable result of losing the Presidential election.
by SLinVA 2005-07-04 01:47PM | 0 recs
Re: Unrealistic
That does not explain the John Bolton effect. By your lights the Democrats in Congress should not have come after nominees for other jobs so harshly. Deserved or not, we went beserk against Clarence Thomas in 1991 in part to call Bush Sr.'s bluff on appointing token minorities. I wrote this diary because I honestly think he's going to pick a much more moderate person to replace Day-O'Connor than anyone thinks.
by risenmessiah 2005-07-04 05:11PM | 0 recs
Right Circuit, wrong udge
My bets are on Diane Sykes. confirmed a year ago with 20 Dem votes, so its hard to argue she's an "extraordinary circumstance.' Federalist Society. no explicit position on Roe, but her remarks sentencing anti-abortion protesters belie her sympathies. My greatest reservation, from her terms in Circuit Court in Milwaukee, and on the Wisconsin Supremes comes from her never having considered a police search to have violated the 4th Amendment's protections.
by benmasel 2005-07-04 01:53PM | 0 recs
Re: Right Circuit, wrong udge
The Federalist Society thing is something where I think enough people don't know about the group and hence don't pay attention to it. But yes, the other side of the coin is that Bush picks a not-so-moderate judge who was approved by Democrats.
by risenmessiah 2005-07-04 05:08PM | 0 recs

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