Saturday, July 02, 2005

SCOTUS Updates

Somehow, I think you will be seeing the acronymn "SCOTUS" a lot in there near future. Here's the SCOTUS Update for today:

I've heard of people trying to draft someone to fun for President, but never for a Supreme Court Justice. Nevertheless, that's what is being done for Fifth Circuit Court Judge Ed Prado. The folks at are trying to persuade the President to nominate Prado who is a moderate and a Hispanic from Texas. He was nominated to the Federal District court by President Reagan in 1984 and nominated by President Bush to his current job.

You have to hand to these guys for trying to get a Centrist to replace O'Connor. Kudos to them for this. Will the President listen? That remains to be seen. has a great post dishing some advice to the President about picking the new justice. It's a conservative viewpoint that is far from ideological. For example:

He should neutralize, not mobilize: In 2004 Bush and Rove accurately gauged that there were enough conservatives in America for a conservative Republican to win the White House by way of a conservative campaign. As I noted time and again at my blog, his strategy was to mobilize these conservatives, to bring them to the polls in numbers not seen ever before. I imagine that many around Bush believe that the mobilization strategy could work just as well for this Court vacancy. I could not disagree more. Such arguments fail to take into account the structural nature of the United States Senate.

If it comes down to a fight between right- and left-leaning interest groups, and the GOP and the Democratic base, the left will win. Pure and simple. The reason for this is that the fight is not in the Electoral College, but in the United States Senate. There is no institution in the world, in the history of the world, that is designed so explicitly to protect the minority and the status quo. Right now, the Democrats are in the minority and an eight-member Court is the status quo. If Senate Democrats strongly desire that this remain the case, it will remain the case. They have too many resources at their disposal to obstruct if they wish to obstruct. For instance, if those left-leaning interest groups convince forty senators to stop a nominee, regardless of the political costs they might face, they will filibuster and Bush will lose. Worse, if those left-leaning interests groups appear to divide the Senate, enough moderate Republicans might abandon Bush's cause for the sake of bringing “unity” to the Senate and of gaining political capital for themselves. Senator McCain has excelled at this tactic.

What Bush must do, then, is neutralize the left. Give the Senate a nominee who places groups like Moveon and People for the American Way in a difficult position. They will oppose Bush regardless of whom he appoints because they want Bush to lose. However, the correct nominee will minimize their ability to influence potential opponents in the Senate. If these groups cannot present to Senate Democrats a politically compelling case to oppose the nominee, Bush will see fewer opponents in the Senate and therefore get a nominee past the minoritarian roadblocks he faces.

This might mean that the American right will be disappointed. They might want a nominee who boldly and unequivocally states his affinity for the Rehnquist/Thomas/Scalia wing of the Court. If Bush's goal is to extend his power, he cannot appoint such a person because the right cannot help him -- not in the Senate.

On the more ideological side is the blog which is definitely for those who like their meat raw. Here's a quote from a recent

entry. This advice is the exact opposite of the one above:

You [meaning President Bush] and the nominee will get hammered and vilified no matter whom you pick. If the nominee were the reincarnation of both John and Thurgood Marshall, the press would portray the nominee as another Roger B. Taney. So, Mr. President, my recommendation is that you just pick the most conservative, qualified, and youngest nominee that you can. Forget the critics since there is no one you could nominate that wouldn’t excite the leftist base. They have been gearing up for this battle for four years and their fund-raising depends on raising a fuss. There is no way that they will defer to Bush’s choice. So, swing for the fences, Mr. Bush. Your base is there for you.

Finally, for a more balanced perspective, there is
Supreme Court Nomination Blog, a project of SCOTUS Blog. One of the most recent posts is one making a convincing case that the President will nominate Priscilla Owen, recently confirmed to the Fifth Circuit. Here is a sampling of why they think this is a possibility:

although Owen has a conservative record easily substantial enough to satisfy concerns of the most conservative elements of the President's base, she doesn't have the paper trail on divisive issues that might produce a genuine public groundswell of opposition. Owen has taken conservative positions in abortion parental consent cases, a question on which Republicans believe they hold the upper hand politically. By contrast, Judge Jones is on the record as opposing Roe itself. Judge Brown's speeches could be employed to paint her as an extremist.

Happy reading.


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