Thursday, November 11, 2004

This Doesn't Feel Right
SCOTUS blog is adamant that John Roberts of the DC circuit will be Rehnquist's replacement. The logic is that (a) He leans conservative (b) He is confirmable (c) His nomination will open up a slot on the DC circuit for Estrada or somebody else.

While the logic flows - something about this doesn't feel quite right - Bush has said that he has earned political capital, and he is going to spend it. Spending it on a Mitch McConnel nomination would make sense - it could shape his legacy for decades. The worry is that the Dems will block the nomination with a fillibuster like they did for many of the circuit court nominations of the past four years. But is that worry overblown?

A Supreme Court nomination will attract much more attention then a Circuit Court nomination. Additionally, the composition of the Senate has changed - there will be 55 Repubs in the Senate, which is either four or five (sorry I forget) more than over the past two years. Don't overlook the fact that the attitude of Dems in red states will be different - the horse in the bed of the dems which was the defeat of former Minority Leader Daschle is not likely to forget. Finally, if Bush wanted a moderate, he could have put Alberto Gonzalez on the court. Yes Gonzalez isn't on the D.C. circuit, but he is hispanic, and Repubs. love to play the racial preference game that they decry so much at the grassroots level. Bush's choice of this frequently rumored Supreme Court candidate to replace John Ashcroft as Attorney General in all likliehood forcloses this possibility and could be viewed as an early positioning to avoid the charge of governing from the far right.

The real question is if Bush, assuming that he will go for a judge on the verbotten list, will pick a one who is very verbotten (say Edith Jones of the 5th circuit) to soften up the opposition and then compromise on a less verbotten candidate (McConnel), or will take the less verbotten candidate from the get-go to minimize the controversey. My bet is on the former course.

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