Supreme Court Nom

This is a long overdue post, first I want to briefly discuss some awesome sources on this. By far the coolest (and possibly most accurate) source for nomination prognostication is TradeSports.com (Click Legal, then Supreme Court). Trade Sports is a futures market, where people actually put their money where their mouth is. Historically such futures markets have been very accurate in predicting the results of presidential elections and even papal conclaves. Right now Emilio Garza and Priscilla Owens are the leaders, although I can only speculate on the accuracy of markets in predicting a lame duck president's personal choice for the Supreme Court.

But lots of bad news this week for Alberto Gonzales, every liberals pick for the court when the religious right went ape shit at the thought of him getting Bush's nod. Many social conservatives do not like him for his lack of judicial activism in the area of abortion rights. In fact many conservative grumblings result from a Texas Supreme Court decision in which Mr. Gonzales wrote this for the majority:

Our role as judges requires that we put aside our own personal views of what we might like to see enacted, and instead do our best to discern what the Legislature actually intended. ... Once we discern the Legislature's intent we must put it into effect, even if we ourselves might have made different policy decisions. ...

The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. ... But it did not. Likewise, parts of the statute's legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. ... Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the right of parents to protect and guide the education, safety, health and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so.

Oddly enough, the dissenting opinion was joined by none other than Priscilla Owens, the long filibustered Texas Supreme Court judge, who was let through by the Gang of 14 and now rules from the Fifth Circuit Court of Appeals. But this opinion has given birth to the saying, "Gonzales is Spanish for Souter," among many worried about another Republican bungling a nomination (remember Chief Justice Earl Warren was appointed by Eisenhower who called Warren's nomination the, "the biggest damn fool mistake I ever made").

But Gonzales' bad news was not limited to conservatives calling him not conservative enough. Some hints at the decision were dropped by Laura Bush, who said, "I would really like him to name another woman..." to NBC's Today show. Now I do not bring this up because I think Bush follows his wife's every whim. I think it is significant because a comment like that is not dropped about something as controversial as this at the First Lady's whim. This seems like a test balloon from the White House, and may well explain why Priscilla Owens' stock is so high. But simultaneously the First Lady's comment may signal a distancing from Bush's perceived closeness with Gonzales. This is of course all speculation, but that is all we have right now.

Most do agree that Bush is likely to select a more Scalia/Thomas-like judge as his first pick, and if given a shot at a second pick, will go moderate (most likely Gonzales). This is why today's news from Rehnquist (that he will, "continue to perform [his] duties as chief justice as long as [his] health permits") must have Gonzales reeling. Also, it all but ensures that Rove will advise Bush not to select Gonzales. If the social conservatives, who have been waiting since Goldwater to pack the court, do not get their man in when a second opportunity is not guaranteed, then Bush can kiss the midterm elections goodbye.

But Rehnquist's decision will make Bush's next move more difficult. The White House was probably aching to get Rehnquist's retirement so that they could choose two judges, a do a balancing act, whereby Bush would select one conservative justice, and a second more moderate. This scenario allowed for maximum placation and would have put Democrats at a significant disadvantage. Rehnquist's decision is great for Democrats though, it allows them to concentrate their efforts on just one nominee, and the more conservative of Bush's likely nominees (as opposed to the second slot that may open for Bush).

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But in coming at this from a different angle, David Brooks had an excellent article today (surprise, surprise). Brooks says:

Yet presidents often make their Supreme Court picks on the most trivial bases: because so-and-so is a loyalist or a friend, because so-and-so has some politically convenient trait or ties to some temporarily attractive constituency. By thinking too politically, presidents end up reducing their own influence on history.

Mr. President, don't repeat the mistakes of the past. Ideas drive history, so you want to pick the person with the biggest brain.

I think Brooks makes the all important point in the middle of all of this speculation and jockeying, that although selecting a Hispanic or female may pay a small dividend in 2008, the Supreme Court is much more than any majority in the House or Senate. Also Brooks' ideal selection, Michael McConnell looks intriguing, though may not lay well with Bush's base (but that may have been Brooks' point).

Hopefully this makes sense of some of the action. Last I want to give two more excellent sources of information. This roundup of possible nominee's by Slate has summed up a lot of the candidates for me (I linked it already above, but deserves more than a link in passing). The second great source is a blog that is an outshoot of the Supreme Court of the United States Blog (SCOTUSblog). It is just for the nomination battle, and is posted on by lawyers who only litigate at the Supreme Court level, so they seem to know what they are talking about.

-Mr. Alec