Rick Hasen's web log
September 08, 2005
Hurricane Katrina, The President’s Low Approval Ratings and the Next Supreme Court Nominee: Beyond the Conventional Wisdom
This post follows up on an earlier post in which I described the choice facing President Bush in filling the vacancy created by Justice O’Connor’s imminent retirement. I noted that the President was likely to choose a minority and/or a woman to fill the seat, and that he has to make a fundamental choice between a nominee likely to please his base by moving the Court to the right, thereby risking the trigger of the “nuclear option” in the Senate, and a more centrist nominee that could potentially preserve the status quo ideological balance on the Court. I suggested D.C. Circuit Judge Janet Rogers Brown as someone fitting into the former category and Attorney General Alberto Gonzales as fitting into the latter category. As I’ll explain, I now think the President is likely to go a third way.
My thinking over the last few days had been that the President’s recent low approval ratings (driven down even further by the government’s response to Hurricane Katrina and continued concern about how the war in Iraq is going) would lead the President to go the Gonzales route. The President, who once had a lot of political capital to spend, now has much less, and the Gonzales route is the path of least resistance. Nominating someone who is (or can plausibly be painted to be) well to the right of Justice O’Connor would provoke a pitched battle in the nation that could further deteriorate the public’s views of the President’s leadership, even endangering Republican congressional majorities in the 2006 elections. I certainly do not buy the argument that the President would be likely to choose someone like Judge Brown to please his base as a way to solve his low approval rating problems.
I now expect the President to nominate neither a Brown nor a Gonzales for the O’Connor seat, but rather to choose a woman or minority much like Judge Roberts. The model is to pick someone with impeccable legal credentials (Brown and Gonzales both qualify) whom the president trusts as strongly conservative (this eliminates Gonzales) but who lacks a public record of strongly conservative statements or judicial opinions (this eliminates Brown). The Roberts experience shows that such a nominee is not easily defeated: the impeccable credentials insure that attacks on the nominee as unqualified fail, and the lack of strong specific examples of conservative ideology prevent opponents of the nominee from having enough ammunition to get the general public concerned about the ideological extremism of the nominee. The choice of a Roberts II has the additional advantage of not alienating the President’s base.
As women potential nominees go, the leading candidate in this view would be Judge Edith Clement of the Fifth Circuit (who was widely rumored to be President Bush’s initial choice to fill Justice O’Connor’s seat before he chose Judge Roberts). As far as minorities go, perhaps Judge Garza fits the bill, though he may be too easily painted as too conservative based upon his judicial opinions.
There is one major caveat to this analysis. Jack Balkin has suggested that it is in the interest of the Republican Party for Roe v. Wade to remain good law even if President Bush would never admit it. Let the issue of abortion revert to the states, the argument goes, and Democrats will have a galvanizing issue to gain public support (especially among Republican women) in many states. If the President accepts this argument, he might look for a candidate like Gonzales who would be expected to uphold Roe (not necessarily on its reasoning but out of respect for existing precedent). And the ideal candidate will have expressed these views in a way that is apparent to the president but not to the public (again eliminating Gonzales himself, but not Gonzales II). Ironically, in Balkin’s view the President would be applying a litmus test on abortion, but precisely the opposite one than most people expect.