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July 3, 2005 - The Game is Afoot

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As Holmes says to Watson in A Scandal in Bohemia - "It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts."

So Justice Sandra Day O'Connor, the first woman appointed to the Supreme Court and a sometimes a key swing vote on issues like abortion and the death penalty, said Friday that she is retiring after twenty-four years on the bench.  This is the first court vacancy in eleven years, and of course there's also the possibility that Justice John Paul Stevens, 85, might consider stepping down.  And Chief Justice William Rehnquist, 80, has cancer.  This first vacancy could change things, as could the others to come, and all over the place there is speculation on who will be nominated to fill this first opening.  Who will Bush choose?

Will it be a hard-line conservative promising to overturn Roe v Wade and end all this affirmative action nonsense?  Will it be some overtly evangelical Christian who will promise to rule from what is in the Bible and not in the Constitution, and bring back those Ten Commandments displays?  Will it be Bush's Texas friend, Attorney General Alberto "It's Really Not Torture if You Look at it This Way" Gonzales?  Or will it be someone only moderately conservative as a consensus choice, to stop all this national fussing and fighting?

Who knows?  Bush says he will announce a nominee for the seat in "a timely manner" - but he's off to Denmark for the G8 summit and will make his announcement no sooner than the Friday he returns.  That would by July 8.

What will he do and why will he do it, whatever it is?  Stick with what Holmes says to Watson.  There's no data here.

Still the Associated Press reports


… Conservative and liberal groups immediately began phoning, e-mailing and contacting supporters to mobilize support for the upcoming Senate confirmation battle.

People for the American Way, a liberal group, set up a war room in downtown Washington for the Supreme Court battle. It has already sent out thousands of e-mails and is setting up phone banks to build support for Senate Democrats.

The liberal political action group MoveOn said it already has a TV ad urging senators to "protect our rights" against a rightwing nominee.

For its part, the conservative group Progress for America has launched Internet ads mocking Senate Democrats.


And so it begins.

For up-to-date news of the legal sort on this matter check out what the blogging constitutional lawyers (good name for a rock group) are saying at Scotus Blog and How Appealing, and on the left, the lawyers at Talk Left (and note here they endorse Edward C. Prado for the vacancy).

What's up?  Reverend Flip Benham, Director of Operation Save America, here says O'Conner was pretty much a terrorist and we need someone new - "Although we applaud her decision to step down and care for her ailing husband, her 'swing-vote' status on the Supreme Court over the issues of abortion and homosexual rights wrought more havoc upon our nation than our foreign enemies ever have."

Yeah.  Whatever.

James Dobson of Focus on the Family has issued a press release - saying we need another Clarence Thomas or Antonin Scalia, as Bush promised us that.

Democratic National Committee Chairman Howard Dean issued his competing press release - Bush should do what Reagan did, have "the courage to stand up to the right wing extremists in his party by choosing a moderate, thoughtful jurist."

So there's lots of advice floating around.

Progress Now is worried and released this:


As you read this, James Dobson and the conservative social warriors are marshalling their forces and raising the money to sustain their fight. They've waited over thirty years since Roe v. Wade for this opportunity, and they are determined to see President Bush pack the Supreme Court.

We know that President Bush will nominate a radical right judge. We know that Republican Senate leadership will push for confirmation. And we know this will likely come down to a vote on invoking the "nuclear option" to circumvent the confirmation process.

We cannot allow James Dobson to drown out our voices. We need your involvement and support to apply constant pressure and help moderate senators like Ken Salazar stand against the tyranny of the right.


And the National Coalition Against the Death Penalty feels about the same.

People for the American Way are worried: "A Scalia-Thomas majority would not only reverse more than seven decades of Supreme Court legal precedents, but could also return us to a situation America faced in the first third of the 20th Century, when progressive legislation, like child labor laws, was adopted by Congress and signed by the President, but repeatedly rejected on constitutional grounds by the Supreme Court.  A shift of one or two votes would reverse Roe v. Wade's guarantee of reproductive freedom and the right to privacy…".  Actually their list of worries is detailed - Privacy Rights, Civil Rights and Discrimination, Church-State Separation, Environmental Protection, Workers' Rights and Consumer Protection, and Campaign Finance Reform

Of course Move-On has started running its advertisement - "The almost $280,000 ad by will air on CNN in ME, NE, SC and VA, and on CNN and FOX in NY and DC as part of MoveOn PAC's grassroots mobilization to empower Americans and persuade the Senate to protect our basic rights by rejecting an extremist nominee."  You'll see it somewhere.

This is just like a presidential campaign, except no citizens get to vote.  There's a lot of money floating around.

Predictions?  From Brad Plummer there's this that lots of folks are pointing to –


Some lunatic winger will get nominated - maybe even Janice Rogers Brown - the Democrats in the Senate will say, "Oh hell no" and launch a filibuster. So the battle will rage on for a while, Bush's "base" will get riled up and motivated to send in lots and lots of money, conservative judicial activists will blast their opponents with fairly superior firepower, and bobbing heads in the media will start carping on those "obstructionist" Democrats (bonus carping here if the nominee is a woman, minority, and/or Catholic).

Finally Bush will give a very somber speech about withdrawing his nominee, announce that he's very disappointed in the Senate, toss in a few bonus 9/11 references, and nominate some slightly-less-lunatic ultraconservative instead. The new nominee gets treated as the "compromise" candidate, is lauded far and wide as a moderate, and finally gets confirmed after pressure on the Senate Dems to "act like grown-ups" by television pundits who can afford to get their abortions abroad and will have no problem with a Supreme Court hostile to labor and environmental protections.

One would hope not, of course, but is there anyone who finds this scenario wildly implausible?


Digby at Hullabaloo does and says this


... let me ask you, when has Bush ever done a strategic retreat on anything? Homeland security is the only thing I can think of and I think that stemmed from a belated realization that they really would like to have some fat patronage jobs and a new entrenched "security" bureaucracy that tilted Republican by nature and temperament. It wasn't a plan.

Here is how this White House views itself: President Bush subscribes to the momentum theory of politics: that success breeds success, and political capital accrues to the one who spends political capital.

... Being willing to stage a retreat - particularly on something about which the base is rabid and out of control - at a time when his popularity is sliding precipitously is not believable to me. I think they are desperate to show strength and get a big win that makes the Dems look weak. That is their theory of governance. The more you win the more people love you.

In their minds it's the public perception of losing on Bolton, social security, Schiavo and Iraq that is causing their problems, not Bolton, social security, Schiavo or Iraq themselves. I think they want a big fight and they expect a big win. And they want that win to "create political capital" with which to consolidate their majority.


And Jeffrey Dubner seconds the thought - "... this president will not allow himself to appear to be defeated on something so important. He certainly won't set himself up for failure, as Brad predicts, even if such a failure is deemed to be a PR victory that results in an ultra-conservative justice anyway. Just not, as his father might say, gonna do it."

Is this all just idle chatter?

"It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts."

Or is there a train wreck coming, where more anger and self-righteousness is generated than we've yet seen?  Probably.

But we won't know for sure until July 8 or so.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
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