Is Thomas a "Free Pass" for Chief Justice?
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A fascinating if twisted sort of "advise and consent" calculus by James Taranto in Friday's Wall Street Journal (subscription site):
Sorry, but this all seems a little too Rube Goldberg to me.
I think the flaw in Taranto's causal chain is the very first link: Why should we assume that the first Supreme Court vacancy -- in 10 years! -- is going to focus exclusively or even primarily on abortion? Despite all the hootenanny about "Red State / Blue State" politics, as well as the warnings from both sides about inevitable Supreme Court vacancies, abortion simply wasn't a significant election issue.
Why? Because abortion is no longer a major social issue. We have reached a remarkably stable abortion policy equilibrium in this country, and that equilibrium happens to be Roe (really Casey, but that's a side issue).
Roe and its progeny have been the law of the land for over a generation; people are used to it. And people are used to it because it makes sense. It is radical religious gobbledygook to claim that life begins at conception, just as it is radical religious gobbledygook (and Objectivist gobbledygook, incidentally) to assert that a woman has a right to unlimited abortion at any time, up to and including the hours just before delivery. Reality, both embryological and political, lies somewhere in between. The overwhelming majority of the electorate knows that, and also know that Roe (really Casey) is as good an embodiment of that reality as we are likely to get. Skirmishes at the fringe (e.g., partial birth abortion, parental notification) are not important enough to revive the concept of abortion rights as a "litmus test."
Anyway, I think Taranto is also assuming a little too seismic a shift in Democratic behavior in a post-Daschle Senate. We shall have to wait to see how the "end the filibuster rule" movement plays itself out, but the idea that the Democrats will simply collapse into a "loyal opposition" mindset, especially over a Chief Justice nomination, and double-especially over a Thomas nomination, is unrealistic (cf., incoming minority leader Harry Reid).
Finally, reducing the analysis strictly to its "political capital" core, I stick to my guns that, if Chief Justice Rehnquist is the first vacancy, then President Bush will likely go outside the Court for a nomination, simply to avoid having to go through two confirmation processes instead of one (i.e., nominating an Associate Justice to Chief Justice and then having a second confirmation battle over the Associate Justice opening). Why go through two confirmation processes just to get one new body on the Court?
Related Posts:
Chief Justice Thomas?
Bush's Second Term: Some Quick Thoughts
Ayn Rand v. Billy Joel, Part Three
If Chief Justice William Rehnquist retires next year, President Bush likely won't face a tough battle over his successor. ...The court has a 6-3 majority in favor of Roe v. Wade, and Chief Justice Rehnquist is among the dissenters. Why should the Democrats spend political capital merely to run up the score?
Anyway, this is a battle the Democrats would almost certainly lose. With only 45 senators (including Vermont's Jim Jeffords), they would need the support of six Republicans to vote down a nominee. ...If Democrats are lucky, Mr. Bush won't get a second chance to appoint a justice until after the 2006 election, once (they hope) their incumbents are safely re-elected.
...
Since it looks as though President Bush is going to get a free pass on his first Supreme Court pick, how can he make the most of the political opportunity? By elevating Clarence Thomas to chief justice.
Sorry, but this all seems a little too Rube Goldberg to me.
I think the flaw in Taranto's causal chain is the very first link: Why should we assume that the first Supreme Court vacancy -- in 10 years! -- is going to focus exclusively or even primarily on abortion? Despite all the hootenanny about "Red State / Blue State" politics, as well as the warnings from both sides about inevitable Supreme Court vacancies, abortion simply wasn't a significant election issue.
Why? Because abortion is no longer a major social issue. We have reached a remarkably stable abortion policy equilibrium in this country, and that equilibrium happens to be Roe (really Casey, but that's a side issue).
Roe and its progeny have been the law of the land for over a generation; people are used to it. And people are used to it because it makes sense. It is radical religious gobbledygook to claim that life begins at conception, just as it is radical religious gobbledygook (and Objectivist gobbledygook, incidentally) to assert that a woman has a right to unlimited abortion at any time, up to and including the hours just before delivery. Reality, both embryological and political, lies somewhere in between. The overwhelming majority of the electorate knows that, and also know that Roe (really Casey) is as good an embodiment of that reality as we are likely to get. Skirmishes at the fringe (e.g., partial birth abortion, parental notification) are not important enough to revive the concept of abortion rights as a "litmus test."
Anyway, I think Taranto is also assuming a little too seismic a shift in Democratic behavior in a post-Daschle Senate. We shall have to wait to see how the "end the filibuster rule" movement plays itself out, but the idea that the Democrats will simply collapse into a "loyal opposition" mindset, especially over a Chief Justice nomination, and double-especially over a Thomas nomination, is unrealistic (cf., incoming minority leader Harry Reid).
Finally, reducing the analysis strictly to its "political capital" core, I stick to my guns that, if Chief Justice Rehnquist is the first vacancy, then President Bush will likely go outside the Court for a nomination, simply to avoid having to go through two confirmation processes instead of one (i.e., nominating an Associate Justice to Chief Justice and then having a second confirmation battle over the Associate Justice opening). Why go through two confirmation processes just to get one new body on the Court?
Related Posts:
Chief Justice Thomas?
Bush's Second Term: Some Quick Thoughts
Ayn Rand v. Billy Joel, Part Three
Posted by KipEsquire on
2 January 2005
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