Whom will President Bush appoint to replace Justice Sandra Day O’Connor on the Supreme Court? We can find the answer in his character and in his past actions.
First consider that the three big “No’s” of the Bush administration — no to the Kyoto treaty, no to the renewal of the ABM treaty, and no to the International Criminal Court — came well before the 9/11 attacks, before the Bush whose wartime performance seems to have wiped out memory of who he was when he took office. He does not fear to be unpopular or unfashionable.
Then consider his early, major appointments. He named three solid conservatives to three important offices, John Ashcroft to Justice, Donald Rumsfeld to Defense, and Linda Chavez to Labor. Chavez hid an unfortunate relationship with an illegal alien, and Bush dropped her like a hot penny. To my memory, no such embarrassment has taken place with any further Bush nominees. (Remember “Nannygate” in the Clinton Administration?) The President also appointed at least two arguable squishes, Norman Mineta at Transportation and Colin Powell at State.
So yes, he can stick a wet finger in the political winds and calculate, like any politician.
George W. Bush has a soft spot for Mexico and Mexicans. This seems at first inexplicable. But, as I have observed before, it forms part of a long-term political calculation. Peel off 10-15% of the Latin American vote in the United States, and 10-15% of the black vote, and the Democratic Party will be no more. And who knows? There are things a President can’t say, and it could be that softness on immigration constitutes a kind of payoff to Mexico to avoid something worse.
So there is a possibility Bush could appoint a Latino to the Court. His most likely candidate, as widely observed, is current Attorney General Alberto Gonzales. If the first SCOTUS vacancy had come up during the early months of Bush’s first term, Gonzales would be in right now. But his current appointment makes it likely he will not be appointed. The longer Gonzalez serves as AG, the less likely his appointment to the high court becomes. He would have to recuse himself from cases too often.
GEORGE BUSH KNOWS THE SAME thing the Democrats know. This is it, the battle for which his presidency has been aimed all along. He expected it, and I don’t think he’ll blow it. What gives all of us pause is that Bush, however determined and principled, also seems puzzlingly conflict averse. He just doesn’t like a fuss. And he’s impatient with propaganda, having to say the same thing over and over again. (Bill Clinton loved it.) You could see it in his first debate with John Kerry. Kerry famously said out loud he couldn’t believe he was losing to “this idiot.” Quite obviously Bush thought exactly the same of Kerry. In Bushâ€™s view, he had told the truth once. Wasnâ€™t that enough?
So, avoiding needless fuss, Bush will not make a needlessly provocative appointment. No Janice Rogers Brown. No Miguel Estrada. No Robert Bork, as some have puckishly suggested. He will nominate someone new, who has not yet been in the public spotlight. He will make sure of no Linda Chavez slipups. As William Kristol has suggested, Bush will appoint someone personally attractive, because of the need for sympathy in the bruising confirmation fight which will inevitably follow.
The conflict aversion, however, will have to come to an end. Kenneth Starr told a meeting of the Massachusetts Family Association that the way to make public officials do what you want is to “Make them fear you.” So far, Bush has not made anybody, Democrat or Republican, fear him.
If he can make his own Senate caucus fear him, he’ll make the appointment he — and we — want.
I will also make a dark horse pick here, though the man is over 60, a supposed disqualifier. Ted Olson. Bush loves a surprise.
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It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
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