So, Sandra Day O'Connor's Stepping Down

Just about my least favorite justice. Too powerful in her role as a swing vote, and very often making a muddle of the law with laundry lists of competing factors that must be "balanced."

Conservatives are angry about the possible nomination of Alberto Gonzales. Robet Novak reports he would not support parental notification while on the Texas Supreme Court and considers Roe v. Wade "invioble."

At least on that issue, then, Gonazales' appointment would represent an affirmation of the status quo.

It's a gamble. Whether or not Bush has the political power to muscle through a truly conservative jurist in place of a more moderate one is very much an open question. He seemed to have lost an ersatz test vote earlier-- if the Republican Senate caucus was willing to use its majority power to push through nominees the Democrats despised, we wouldn't have had that "bipartisan centrist compromise."

Novak argues that with Bush's popularity declining, nominating a pro-choicer would be disasterous, as it would alienate his base. On the other hand, I'm not sure Bush has the stomach for another political defeat. Each political defeat seems to embolden the opposition and further weaken him.

On the plus side-- Gonzales is no worse than O'Connor when it comes to the abortion question, and he probably couldn't be any worse on most issues.

Still, that's it. He wouldn't be worse. He wouldn't, presumably, become a reliable conservative vote and thus tilt the court the way we might like.

I'm not sure if Bush has the political capital to do more. I suppose he can be faulted for not trying, but I don't think we want to see him a lame duck with three years left in his term.

The Democrats will filibuster any strong conservative nominated to replace a moderate. Yes, the agreement says they'll only filibuster in "extraodinary circumstances," but the changing the composition of the court by swapping in a conservative for a nominee will, of course, be deemed just such an "extraodinary circumstance." And I doubt that Lindsay Graham, John McCain, and the rest will suddenly grow the balls for the nuclear option.

I think this particular battle was lost in most important ways some time ago.

posted by Ace at 12:55 PM

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