The Chances of the Senate Going Nuclear Have Increased Greatly

With the Chief Justice's statement that he plans to stay on the Supreme Court as long as his health permits, it is now clear that President Bush will have no opportunity to pursue a two-seat strategy. This is too bad for the Senate as an institution. As I argued in The New Republic Online recently, the Chief Justice could have avoided a nuclear showdown in the Senate:

Enter the Chief Justice. By retiring now, he can create what might be called the "West Wing" scenario, which has already been discussed on some blogs. In an episode of the television series last year, the fictitious President Bartlett had two Supreme Court seats to fill. Despite his own liberal leanings, he filled one seat with a more conservative candidate and one with a more liberal candidate. The ability to negotiate with two seats allowed both candidates to get through the Republican Senate.

The same logic would hold in the real world. If Bush had two seats to work with, he would likely nominate a conservative to one seat and a more moderate nominee to the other. Democrats probably would not block a deal that preserves the Court's current balance of power. Indeed, preserving the status quo is about the best deal they can realistically hope for. For their part, conservatives would probably be happy with another Scalia or Thomas on the Court, even if that came at the price of a more moderate justice in the other seat.

If Bush instead picked two hardline conservatives to fill those seats, Democrats would have a stronger argument to make to the Republicans in the Gang of 14 that these would be "extraordinary circumstances" justifying a filibuster. Meanwhile, the public would probably favor maintaining the status quo on the Court, would view the Democrats' filibuster as reasonable, and would therefore be unlikely to countenance the nuclear option. In short, a Rehnquist retirement opens up greater space for political compromise in a Senate that is currently short on trust.

The Chief's statement has come as a relief to some. Doug Kmiec, for example, writes at National Review Online: "It should be of relief to us all, since it lessens what was becoming all too apparent — that every factor in the nomination process was going to use multiple vacancies to politically horse-trade to the ultimate disadvantage of the integrity of the Court."

I don't see how a horse-trade that preserves the current balance of power undermines the "integrity" of the Court, though it certainly would have made it less likely that the Court shifted to the right. But Kmiec's analysis ignores the harm to the Senate: the potential end of the Senate as a deliberative body. Those like Kmiec who are happy about the loss of the logrolling possibility think of the Senate in Court-centric terms, and that is a mistake. The Senate does much more than confirm judicial nominees, and now there is a fairly strong possibility that the "Gang of 14" agreement breaks down and we end up with a Senate in perpetual gridlock and acrimony.

D.C. Circuit Affirms District Court Ruling in Shays-Meehan Case Rejecting FEC BCRA Regulations

The opinion is here. Early Bloomberg story here; A.P. is here. Alison Hayward offers some analysis here. I'll have some analysis of my own later today.

Bauer on Mehlman on 527s

See here.

Thernstrom and Blum on Why Section 5 of the Voting Rights Act Should Not be Renewed

In today's Wall Street Journal, Abigail Thernstrom and Edward Blum write Do the Right Thing. (Thanks to Steven Sholk for the pointer.) A snippet:

Preclearance is no longer defensible. Another provision, known as section two, takes a more reasonable approach to the same problems preclearance was designed to address. This provision allows plaintiffs to initiate suits in any jurisdiction across the nation if they believe minority voters have "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." But the burden of proof is on the plaintiffs and jurisdictions have an opportunity to defend themselves in a local court. DOJ career attorneys partial to plaintiffs will not be resolving disputes behind closed doors.

"Judge denies lawmakers' bid to join redistricting lawsuit"

A.P. offers this report, which begins: "SACRAMENTO (AP) - Democratic lawmakers won't be allowed to join the attorney general's lawsuit that seeks to strike a redistricting initiative from the November special election ballot, a judge ruled Thursday."

"Cunningham Announces He Will Retire at End of 109th Congress"

Roll Call offers this breaking news report (paid subscription required). "Rep. Duke Cunningham (R-Calif.), under fire for his dealings with a military contractor, announced that he will not seek re-election to a ninth term in the House following the end of the 109th Congress. Cunningham also plans to sell his house in San Diego and donate part of the proceeds to three local charities."

-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org