Published Jul 1, 2005

Well, that’s pretty unexpected — I know everyone was planning on a Supreme Court seat opening up via death, but I don’t know that there was any reason to anticipate a seat coming open via retirement. There are many questions why, but, not being a SCOTUS follower, I won’t speculate. However, as a blogger, it’s my God-given right to spout off as to how she will be replaced.

Obviously, for us liberals, this is bad news. Bush is clearly dedicated to the idea of picking a socially-conservative, activist judge — and he’s set himself up for it quite well. By fighting for six years over every nomination, he’s tired out the Democrats, partially neutered the filibuster and gained a small bit of the moral high ground by claiming obstructionism at every turn. We won’t easily see a borking here.

But there might be a good side to this too. Bush will assuredly get a judge dedicated to overturning Roe — but he’ll shoot his bolt in doing so. The President was preparing to nominate a new candidate not now but in months, after a quiet campaign to:

  1. Determine who might be most appealing to his right-wing base
  2. Goad a few Democrats into saying something that they can be forced to apologize for, thus neutering them
  3. Smear a few middle-of-the-road candidates so that only the far-right candidates look acceptable
  4. Completely remove any possiblity of a filibuster

The administration won’t have even remotely enough time to do this. Instead, Bush is likely to focus on a candidate quite quickly, and he’s a very focused individual — he’ll use only a few metrics on which to evaluate possible candidates. The result will probably not be someone acceptable to the suburban, midwestern centrists who went for Bush in ‘04, but the GOP will push the nominee through anyway.

So that’s one activist conservative judge on the bench, another Clarence Thomas. But what about Rehnquist’s successor? Well, then Bush will have the harder task of having to mollify his successor’s center, plus make up for putting what everyone will see is a radical on the court. Will Bush then nominate a Souter-type, like his father? We can only hope, but the need to ensure a win in 2008 should cause him to focus on a broadly-acceptable, non-notable appeals court justice to the high court.

Of course, there was a time when presidents saw as their job the nomination of leaders in modern thought to the Supreme Court. Felix Frankfurter? Earl Warren? Thurgood Marshall? None were mediocre appellate judges promoted through the ranks. All were leaders in legal thought who participated actively in important court decisions. Maybe it’s time for Presidents to ask: who’s the smartest person I can appoint to the court? Who will be a leader? Who will be a deep thinker? Who will ask good questions? Who is open to new ideas? Who has innovative legal theories?

Or we could just end up with a new activist court that reverses thirty years of cultural change. Oh well, Justice OıConnor, I know itıs not your fault.