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More quick thoughts about the court

As I mentioned, the terms of Sandra Day O'Connor's conditional resignation have her remaining on the court until her replacement is confirmed. Since (a) social conservatives don't really want her on the court, (b) she doesn't want to be on the court, (c) a vacancy would also be bad for conservatives, (d) nobody wants a nomination fight in an election year, and (e) the president probably wants to put this embarrassment behind him as quickly as possible, I assume Bush will hurry up and announce a new nominee.

That means he needs to pick someone who has already been vetted thoroughly... and that means it has to be someone who was already on the short list.

A stealth nominee simply would not work at this point; that would be an absolute disaster. Bush would lose what little support he still has with his base if he nominated someone else whose views were murky and whose paper trail was minimal. At this point, it should be clear to even his most loyal supporters that "Trust me" just ain't gonna cut it.

Not only does he need someone whose views are known and whose background has no surprises, but he needs someone whose credentials are impeccable. That would seemingly call for someone like Judge Michael McConnell... except that McConnell is not -- to use the common Washington parlance -- a womanorminority. Everything else about him is perfect from Bush's point of view.

Attorney General Gonzales is a womanorminority, but would raise the cronyism issue again (although less appropriately), plus he's not that conservative, plus liberals blame him in part for torture.

For obvious reasons, many of the names on the short list -- in addition to McConell, you've got Luttig, Wilkinson, Alito -- or names that should be on the short list -- Kozinski, Easterbrook, Posner, Nieporent -- are not womanorminorities.

Janice Rogers Brown -- who's actually a womanANDminority -- would certainly be an interesting choice -- I'd look forward to those confirmation hearings -- but (a) I'm not sure she's socially conservative enough for social conservatives (in other words, we don't know her views on abortion), and (b) she's the candidate probably most at risk of being Borked by the left. Someone who thinks the New Deal was a socialist mistake may be my hero, but her views will be derisively caricatured by Democrats. It would definitely distract from any Fitzpatrick indictments, but I'm not sure Bush wants to fight a war on three or four fronts at once.

Other than that, there's Garza, Clement, Jones, Owen... I guess we'll have to wait and see. I just hope we wind up with someone whose conservative judicial intellectual credentials are well-established. This is Bush's last best chance for a judicial legacy. (Yes, Stevens could still retire, but that fight would be very tough, and there's no guarantee Republicans would still control Congress when it happened.)


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