September 15, 2005

A Coming Nuclear Showdown in the Senate?

Last week I suggested how President Bush could try to please his Republican base but avoid a nuclear showdown in the Senate with his next Supreme Court nomination:

    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.

This analysis assumed that conservatives would be willing to go along with a Roberts II, trusting that the President will choose someone who will be reliable on their issues, particularly abortion. Some conservatives, however, are signalling that this strategy won't work. Today's Roll Call, for example, features Brownback Outlines Terms for Next Pick (paid subscription required), which begins: "Sen. Sam Brownback (R-Kan.) said Wednesday that he would like the next Supreme Court nominee to have a detailed track record opposing the Roe v. Wade decision, as opposed to the relatively limited record on abortion issues held by Judge John Roberts." The article also includes the following:
    Manuel Miranda, a former Senate GOP leadership aide, sent conservative activists an e-mail Wednesday warning that the second pick should come from a crop of candidates who have either ruled on the issue on state courts or written on the matter. He noted that William Rehnquist won confirmation as chief justice in 1986 even though he was one of two justices to rule against Roe in 1973.

    “When the President promised he would appoint judges like Scalia and Thomas, it was not their views on the Clean Sewers Act that he was trying to signal to us — it was code for Roe. He knew it, we knew it,” wrote Miranda, who resigned his Senate post 20 months ago during an internal chamber investigation about whether he had improperly accessed Judiciary Committee memos.

    Miranda now runs Third Branch, a group devoted to confirming conservative jurists to the federal bench.

If conservatives won't go along with a Roberts II, all bets are off, and we will come much closer to nuclear showdown in the Senate. And if the President decides that the best way to improve his low poll numbers is to appeal to his base, then that would be a reason for the President to trigger, not avoid, nuclear showdown.

Posted by Rick Hasen at September 15, 2005 08:56 PM