Political Hay

After Roberts, Who?

There's a lot to consider when playing the nomination guessing game.

By 9.8.05

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Sometimes it helps to have liberal friends. Although they are usually wrong, occasionally, in talking to them, I realize where I am in error.

Case in point is who President Bush will nominate to fill the vacancy on the Supreme Court left by the untimely death of William Rehnquist. In a recent phone conversation I was about to argue in favor of Janice Rogers Brown, when Liberal Friend said, "Bush will not nominate Brown." Before I could disagree, he launched into a lengthy explanation that, in the end, (and to my dismay) made a lot of sense.

First, nominating someone who had been filibustered by Senate Democrats for four-plus years, like Brown, will precipitate a protracted fight. Of course, just like Roberts, we can expect that People for the American Way (sic), the National Abortion Rights Action League, the Alliance for Justice, the mainstream media and other spawn of Satan will go after Brown. Unlike Roberts, Brown has a lengthy track record as a California Supreme Court Justice. Given that the left operates on the Throw-Enough-Stuff-At-The-Wall-And-Eventually-Something-Will-Stick principle, Brown's lengthy track provides them a bonanza of flingable items.

Worse, Senate Democrats will have an excuse for filibustering Brown. With Roberts, enough Democrats voted for his nomination to the Appellate Court that they would have some serious explaining to do should they try to filibuster him now. Brown was only confirmed as part of a compromise to avoid the Sensible Option of eliminating the filibuster on judicial nominees. It won't be too difficult for Democrats to say with a straight face to a TV camera that the compromise did not include nominating Brown to the Supreme Court.

It is of course possible that these tactics will backfire against the Democrats. Yet that may be a risk the Bush can ill afford right now. As Liberal Friend pointed out, whether it is fair or unfair (unfair, UNFAIR!), a lot of the fingers over the Hurricane Katrina disaster will be pointed at President Bush. That could sap enough of Bush's remaining political capital (although recent polls suggest the issue isn't hurting him) that he won't be able to prevail in a fight to get Brown on the Supreme Court.

So, Liberal Friend had me. However, like so many liberals, he had to have his cake and eat it too. He then argued that Bush would nominate Alberto Gonzales. (Indeed, liberal friend is still surprised Bush didn't nominate Gonzales last time.)

Not a chance, I replied. Social conservatives will never accept Gonzales's concurring decisions, while on the Texas Supreme Court, to undermine parental notification. If Bush's political capital is in short supply, he can ill afford to alienate that significant portion of his base. True, Liberal Friend replied, but it may not matter since Bush no longer has to run for reelection.

But he does have to worry about how the GOP will fare in the 2006 elections, I responded. Start with the reelection bid of Pennsylvania GOP Senator Rick Santorum. Right now, Santorum is the most endangered incumbent in either party. If Bush nominates someone like Gonzales, could Santorum vote for him? Santorum has already angered a lot of social conservatives with his support last year of Arlen Specter. A vote for Gonzales and Santorum is all but assured of looking for new employment come 2007. That would leave Santorum in the unenviable position of having to embarrass the President by voting against his judicial nominee.

In off-year elections, like 2006, turning out the base is even more vital to winning than during presidential elections. Furthermore, Bush has worked hard to build up GOP majorities in both houses of Congress. Risk that by a nomination that will result in an important portion of the base sitting on its fanny a year from November? Not likely. Fortunately, Bush has a long list of conservative jurists to choose from that can survive the gauntlet, er, Senate Democrats.

So who will Bush pick? Right now it's anybody's guess. Sadly, we can be near certain it won't be Janice Rogers Brown. But it also won't be Alberto Gonzales.

Sorry, my Liberal Friend.

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About the Author

David Hogberg is a senior fellow at the National Center for Public Policy Research.  Follow David Hogberg on Twitter.