Are you a fan of cute, fuzzy critters? Are you overcome with the urge to coo when you see animals exhibiting vaguely human traits? Walk, don't run, to your nearest theater showing March of the Penguins.
Well, since the battle is now joined, or at least may be joined, let's look at some possible outcomes of the pending Supreme Court nomination.
First, let's throw out things that are highly unlikely
Rehnquist announces his retirement this September after breaking the record for "longest serving Supreme Court Justice"; the President nominates one moderate and one conservative to keep the peace in Dodge. WHR was not particularly keen on striking down economic legislation the way Scalia and Thomas would be, so this could potentially be some net gain for the policy auction conservatives.
Bush nominates a semi-pro-choice moderate. Ed Kilgore shows why this Just Isn't In The Cards.
Let's move slowly into the land of the more probable:
The Consensus Maneuver: Bush could consult with Patrick Leahy (D-VT), the ranking member on the Senate Judiciary Committee, and choose a consensus nominee who would be agreeable to enough Democrats to avoid cloture. Such a candidate might be like those Harry Reid suggests as viable candidates; folks who are clearly anti-Roe but might be more moderate on economic issues. The majority to uphold Roe would shrink from 6-3 to 5-4, while various pieces around the edges, like the constitutionality of dilation & extraction or certain regulations, might change.This would leave the current configuration of the court mostly intact, but move a few social issues votes from the liberal side to the conservative side (big-ticket items like Roe and Lawrence would remain untouched). Considering there's no opportunity to score political points, I'm skeptical this will happen.
The Three-Card Monty Gambit: Bush nominates the craziest candidate he can find in round 1, with the intention of allowing Democrats to kick up a storm. The nominee goes down in flames, Bush withdraws the nomination, only to nominate a second choice that is marginally less crazy. The chattering class implores Democrats to accept this "compromise", which leads to capitulation. This is a great plan, but it might not be possible with the President's anemic approval ratings.
The Moderate Hispanic Trump: Here, Bush deploys Alberto Gonzales, along with the "voting against Gonzales is a vote for racism" line. Democrats roll over to avoid offending Hispanic voters.
I find this unlikely for two reasons. First, there's some evidence that Gonzales is not sufficiently pro-life for the Religious Right, who want their payday. Second, the continued exposure of the OLC's involvement in allow the torture, or cruel/inhumane/degrading treatment of prisoners, as well as asserting the presidents ability to act as commander-in-chief without any input from ... well, anyone, might derail his nomination. But Gonzales isn't the only Hispanic lawyer in the GOP, which leaves open the possibility of ...
... the Conservative Hispanic Trump: Now we're moving into more likely territory. Here Bush nominates a more forthrightly conservative Hispanic judge, someone like Miguel Estrada or Emilio Garza. The conservo-race card is deployed with wreckless abandon, scaring enough Democrats into approving the nomination.
Frankly, I don't think there's a huge political gain for the Republican party in such a strategy. There simply aren't enough Hispanic voters out there that moving even 10% of the population would make a serious dent in the electoral calculus (except perhaps in New Mexico). Given his inclusive cabinet, Bush has already a very good "I have black friends" defense against charges of racial prejudice. But it might make the nomination process for a hardline conservative easier, though, the experience of Miguel Estrada suggests otherwise.
There's also the Vaguely Acceptable Conservative Play: A number of Bush's Circuit Court appointments have received wide Democratic support. Chief among these is Michael McConnell, who has written law review articles criticle of Bush v Gore, and also has lots of support from legal academia.
I think this is a very likely scenario. There are enough folks like McConnell here that Bush should be able to find a nominee who can avoid all the landmines; someone who opposes affirmative action but hasn't mouthed off about the unconstitutionality of civil rights legislation; someone who is perhaps anti-Roe but doesn't make this the center of his or her jurisprudence; someone who is at least partly deferential to the legislative branch on economic matters, etc. Without a clear sign of judicial extremism (like, say, claiming all zoning laws are unconstitutional), it may be impossible to sustain strong opposition.
... the most likely scenario the Partisan Food Fight: This is the place the Bush political team is most comfortable. The Rove machine strongly believes in the power of positive polarization; divide the country into "us" versus "them", always being careful to ensure that the "us" half is just large enough to forge a majority. This strategy began with a memo from Pat Buchanan to Tricky Dick Nixon himself, whose true heir has used it to greater perfection than anyone ever before.
Here, Bush nominates some stone-cold cuckoo judge to the Supreme Court; we're talking about a guy who thinks Jesus Christ believes in trickle-down economics and free market deregulation galore (unless we are talking about marijuana, because, well, that's commerce and we can regulate that), all of which is sitting there in the Constitution if you just look hard enough. The Democrats have a nutty, paint the candidate as extremist, but Bush goes to the mat for the nominee, charging Democrats with obstructionism. There is much wailing and gnashing of teeth on both side of the aisle, no compromise is reached, the Senate operates under the threat of the nuclear option, and the entire American public just wants the whole thing to go away. The theory here is to just piss off so many people that they stop paying attention and don't bother voting in 2006, while the GOP coalition of anti-choice, pro-gun and "anti-government" voters march to the polls. Whether or not this will happen, it's what the Republican political machine thinks will happen.
A couple of other notes:
There are apparently folks out there who think that an otherwise acceptable pro-life candidate will stymie Democrats as they muddle over the issue of how to treat abortion.
Hogwash.
Look, I am all for making the Democratic party a better home for pro-life voters and candidates. But ceding Roe is ludicrous. A clear majority of Americans support a women's right to choose. What's more, the more that right is threatened, the more everyone starts to support it; in fact, PPFA's strategy during Casey force this issue as far to the front of public consciousness as they could. Considering how many pro-choice women were elected to the Senate that year, it looks like a pretty good strategy.
If Roe is in real danger, you go to the mat for Roe. There are votes to be had there. Period.
The threat to economic legislation resulting from the appointment of a constitution-in-exile movement judge is quite great -- perhaps greater than the threat to Roe, especially if Rehnquist retires. That's why I'm attracted to the Vaguely Acceptable Conservative Play, which would let the Red State Senators (The Two Nelsons, Dorgan, etc.) off the hook, keep the court mostly in its present state, allow Democrats to highlight the threat to Roe and the damage of striking down regulation, and still send a clear message that Democrats are not a fan of conservative jurisprudence.
Personally, I'm just hoping for a nominee who's older than sixty. With the improvements in high quality old-age health care, plus the increased reliance on clerks, it's possible to continue one's career as a Supreme Court Justice for much longer than it was in even the mid-twentieth century.
Be careful out there folks. The volume on this one goes to eleven.
