Who will replace Justice O'Connor?

Lyle Denniston has an interesting post about the dynamics of the Roberts confirmation hearing in the shadow of the anticipated vacancy of Justice O'Connor's seat.  He concludes:

In a way, therefore, this week has turned into a dress-rehearsal for the next nomination hearing. And, the chances are, the Democrats' task the next time around may well be made somewhat easier. It is hard to imagine a nominee who would be as talented a witness as Roberts has been, or one as deft as he has been in neutralizing the possible points of opposition. Moreover, despite the vivid conservatism that was on display in the thousands of pages of Roberts memos written as a young government lawyer, the next nominee probably will be a more ideological conservative, certainly more visibly so. (The President could hardly satisfy his most conservative following by using the O'Connor succession to nominate a consensus figure.)

To some degree, then, it could be argued that the advantage may shift, perhaps noticeably, to the Democrats with the next nomination. But that is an advantage that could be largely thrown away, in advance, by an array of hard-to-explain Democratic votes against Roberts.

But who will be the next nominee?  Of course, I have no special insight or secret sources of information.  All I have to offer right now is rank speculation. . . .  Perhaps this is what is going through GWB's (or Karl Rove's) mind:

I think I will nominate Janice Rogers Brown to the Supreme Court.  My daddy nominated Clarence Thomas to the Court, and the liberals struggled with what to do.  With Brown, they'll be doubly confounded: she's African-American and female!  Yeah, yeah, they filibustered her when I nominated her to the D.C. Circuit, but when it came to a vote, she was confirmed.   Besides, this is a win-win situation.

If the Democrats don't oppose her and she gets confirmed, I get another conservative justice on the Court.  And I get credit for doubling the number of African-Americans on the Court.

Besides, if the Democrats oppose her but she's confirmed anyway on a straight party line vote, maybe she'll become even more conservative, kind of like how Justice Thomas has turned out.

On the other hand, if the Democrats really mount an opposition and "Bork" her, I can blame them for keeping the first African-American woman nominee off the Court.  And then I'll nominate Edith Jones.  After fighting the Brown nomination, I don't think the Democrats will have the energy for another big fight.

But if they do, there's always Michael Luttig. . . .

What do you think, is this Machiavellian enough to approximate Bush/Rove?

Comments

[Michael Froomkin]

You want Machiavellian, see The Strategy: How the GOP Will Relaunch the Culture War With its Next Supreme Court Appointment. Not that the conclusions are that different....

[Dan]

"Relaunch" the Culture War? I didn't know it was over. For those who think it is, I can assure you that you are wrong. As Father Neuhaus has put it, the pro-life movement of the last 30 some years has just been the beginning, the laying of the foundation, for the pro-life movement of the 21st Century and the 22nd Century and however many centuries there are to come:

"There is no permanence, there is no end point to the great cause of life that brings us together. We are signed on for the duration and the duration is the entirety of the human drama, for the conflict between what John Paul II calls the culture of life and the culture of death is a permanent conflict. It is a conflict built into a wretchedly fallen and terribly ambiguous human condition.

And so those who have been recruited, who understand themselves by virtue of their very faith in God, their very having-been-chosen-by-God, the God of life--those who understand that, know that they are in this for the duration, and that everything that has been the pro-life movement of the last thirty-plus years has been the prelude, has been the laying of the foundation for the pro-life movement of the twenty-first century and of the twenty-second century, and of all the centuries, however many more there are to come.

That understanding is absolutely essential to the kind of commitment, the kind of devotion, the kind of self-surrender that has made the pro-life movement one of the most luminous illustrations of the human capacity for altruistic, genuinely other-regarding activities, indeed, not only in the American experiment, but in world history. Never before, I think it fair to say--ponder this--have so many people given so much over so long a period of time for a cause from which they have absolutely nothing to gain personally; and indeed in which they have, in many cases, lost--at least by any ordinary calculation of benefits--lost time, often friendships, or gained a great deal of opprobrium and misunderstanding on the part of others and, in many cases, have been jailed and arrested, and have paid deep fiscal penalties.

It is an inspiring thing to have been part of this first thirty years of this phase of what is called the pro-life movement. And we dare not be weary. We dare never give in to what sometimes seem to be the overwhelming indications that the cause is futile. We dare never give in to despair. We have not the right to despair. And finally, we have not the reason to despair.

It is a grand thing, it is among the grandest things in life, to know that your life has been claimed by a cause ever so much greater than yourself, ever so much greater than ourselves. In our American public life today, there's much talk about a culture war--sometimes in the plural, culture wars. It's a phrase that I've used, it's a phrase we've used in First Things from time to time, and people sometimes are critical of that. And they say, Oh, isn't that an alarmist kind of language, isn't that an inflammatory kind of language to use, to talk about wars?

Well, maybe. It's a contestation, if you prefer the word contestation. It's a conflict, certainly very, very deep. But it does have a warlike character to it. And if it is war, it's good to remember who it was that declared this war--who is waging a defensive war, and who an aggressive war. It was not our side that declared war. We were not the ones who decided on January 22, 1973 that all of a sudden everything that had been entrenched in the conscience and the habits and the mores and the laws of the people of this nation with respect to the dignity of human life and the rights bestowed upon that life--that all of that was now to be discarded. That in one, raw act of judicial power, which of course the Roe v. Wade decision was, every protection of the unborn, in all fifty states, would be completely wiped off the books.

Astonishing thing. It is important for us to remember that most of those who were on the side of what was then called liberalized abortion law, now called pro-choice, were as astonished as everyone else by Roe v. Wade. Nobody expected that the Court would simply abolish abortion law, would simply eliminate even the most minimal protections of unborn life.

That, of course, is not the only occasion upon which a war was declared that creates what today is called the culture war. There are many, many other points in the culture. Sometimes we simply refer perhaps too vaguely and too generally to the Sixties, but certainly under sundry revolutionary titles, all claiming to be great movements of liberation, was explicitly lodged and advanced and argued for in the name of warfare, a counterculture intended to overthrow, presumably, the oppressive, stifling, life-denying character indeed of Western Civilization itself and all its works and all its ways. It was to be an exorcism, if you will, of what was perceived to be a maliciously oppressive cultural order of which we are a part, with respect to sexuality--always weaving in and out and coming back to the question of sexuality--marriage and divorce and education policy and a host of things.

And so war was declared and war followed. And it will continue to look very much like a war. It is our responsibility not only for strategic or tactical reasons, but very importantly for moral reasons, to make sure that it doesn't become warfare in the sense of violence and bloodshed. It is our responsibility to advance our arguments in this great contestation with civility and with persuasiveness, knowing that sound reason and the deepest convictions engendered by Judeo/Christian moral tradition both strongly support the cause of life which will ultimately prevail."

The above is part of a speech given by Father Neuhaus. In the same speech he warns, with reference to the Bush administration, against putting "trust in Princes" (quoting one of the Psalms). That warning is pertinent with regard to the next nominee. In my opinion there is a zero per cent chance that Bush will nominate someone who has expressly criticized Roe. Bush has shown time and time again that he will not go to the mat on the abortion issue. He therefore will nominate someone who, like Roberts, is a wild card on the issue so as to avoid a showdown in the Senate on the issue.

[Alex Smith]

Thanks for your posting: Who will replace Justice O'Connor. I really enjoyed it and found it very helpful. Thanks!