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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, September 20, 2005 ::
    The other nominee?

    RedState says two names are in play: Edith Jones and Larry Thompson. "Yes," they write, "you heard it here. Edith Jones is in play and it is not just a conservative dream." If the list is literally down to those two, Jones fans should be on the edge of their seats, because Laura Bush is known to favor picking a woman.

    Back on July 14, before John Roberts had been nominated for either seat, The Supreme Court Nomination Blog said Jones was "off the table" because of her critique of Roe in her special concurrence in McCorvey v. Hill. On the other hand, in the August 1 Weekly Standard, Fred Barnes reported that the President has got religion on the Court issue, and has built anti-Souter filters into his screening system.

    The psy-war being directed against such resolution is intense. E.g., Specter's and Leahy's comments, and frequent "news analysis" remarks such as this in the L.A. Times: "a more contentious confirmation fight over Bush's pick to replace O'Connor — even if it ends successfully for him — could further damage the president at a time when criticism about Iraq, high gas prices and the federal response to Hurricane Katrina have weakened him politically."

    To the same effect is a remark (also in a supposed news story) from the New York Times, reprinted here in the Contra Costa Times:
    The shifting calculus reflects the increased stakes in replacing the retiring Justice Sandra Day O'Connor as the court's swing vote as well as the expectation that the new nominee will be measured against Judge John Roberts, who was hailed by both parties for his performance during almost 20 hours of confirmation hearings for the post of chief justice.

    The shift also indicates that the administration expects some Democrats' pent-up frustration with what they labeled as Roberts' evasiveness to spill over into the hearings for a new nominee.
    See? Roberts's reticence on speaking about issues likely to come before the Court, far from setting an example, is precisely what Democrats (and possibly Specter) will not let the next nominee do -- or so the NY Times wants Bush to believe.

    Otoh, Ed Whelan at NRO has three reasons why the Roberts questioning process makes it more likely, not less, that the next nominee will be a conservative.

    If Barnes and Whelan are right, Bush will remember that the GOP has 55 Senate seats. He can lose Collins and Snowe and three others and still confirm a worthwhile nominee. And that's not counting any red-state Democrats who could be brought over. A filibuster would probably be politically unsustainable in the case of a Supreme Court nomination, and in any event could be broken with the Constitutional Option.

    Bob Novak says here (scroll down to "Filibustering Priscilla") that Sen. Reid has told the President Judge Owen would be filibustered if nominated. One hardly imagines Owen is alone on this list.

    But again, I don't think a filibuster could actually be sustained for a Supreme Court seat; this is just more psy-war. PFAW et al. know that the best way to prevent a conservative from being confirmed is to prevent one from being nominated. While "Borking" can be fun, the Left is more concerned about who actually gets on the Court, and they know that with the current Senate, "Borking" can't be relied upon to work.

    Related: MSNBC asks, Which Democrats will vote "yes" on Roberts? Their answer: Nelson (NE) and Pryor (AR). That doesn't mean they'd automatically vote for a conservative nominee for the other seat, but it would mean they are sensitive to pressures in that direction, that the opposition would have to expend resources to rein them in, and that their votes are gettable.

    :: David M. Wagner 1:00 PM [+] ::

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