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A Coming Nuclear Showdown in the Senate?
Last week I suggested
how President Bush could try to please his Republican base but avoid a
nuclear showdown in the Senate with his next Supreme Court nomination:
I now expect the President to nominate neither a Brown nor a Gonzales
for the O’Connor seat, but rather to choose a woman or minority much
like Judge Roberts. The model is to pick someone with impeccable legal
credentials (Brown and Gonzales both qualify) whom the president trusts
as strongly conservative (this eliminates Gonzales) but who lacks a
public record of strongly conservative statements or judicial opinions
(this eliminates Brown). The Roberts experience shows that such a
nominee is not easily defeated: the impeccable credentials insure that
attacks on the nominee as unqualified fail, and the lack of strong
specific examples of conservative ideology prevent opponents of the
nominee from having enough ammunition to get the general public
concerned about the ideological extremism of the nominee. The choice of
a Roberts II has the additional advantage of not alienating the
President’s base.
This analysis assumed that conservatives would be willing to go along
with a Roberts II, trusting that the President will choose someone who
will be reliable on their issues, particularly abortion. Some
conservatives, however, are signalling that this strategy won't work.
Today's Roll Call, for example, features Brownback
Outlines Terms for Next Pick (paid subscription required), which
begins: "Sen. Sam Brownback (R-Kan.) said Wednesday that he would like
the next Supreme Court nominee to have a detailed track record opposing
the Roe v. Wade decision, as opposed to the relatively limited record
on abortion issues held by Judge John Roberts." The article also
includes the following:
Manuel Miranda, a former Senate GOP leadership aide, sent conservative
activists an e-mail Wednesday warning that the second pick should come
from a crop of candidates who have either ruled on the issue on state
courts or written on the matter. He noted that William Rehnquist won
confirmation as chief justice in 1986 even though he was one of two
justices to rule against Roe in 1973.
“When the President promised he would appoint judges like Scalia
and Thomas, it was not their views on the Clean Sewers Act that he was
trying to signal to us — it was code for Roe. He knew it, we knew it,”
wrote Miranda, who resigned his Senate post 20 months ago during an
internal chamber investigation about whether he had improperly accessed
Judiciary Committee memos.
Miranda now runs Third Branch, a group devoted to confirming
conservative jurists to the federal bench.
If conservatives won't go along with a Roberts II, all bets are off,
and we will come much closer to nuclear showdown in the Senate. And if
the President decides that the best way to improve his low poll numbers
is to appeal to his base, then that would be a reason for the President
to trigger, not avoid, nuclear showdown.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
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