Bush & the Supreme Court:

Bush will get to pick, I predict, at least 3 new Justices over the next four years. Rehnquist certainly will be one of the vacancies. Stevens, at age 84, most likely will be another. And it’s also likely that at least one (or more) of the other seven will go as well. Although the Court will likely shift rightward, it’s highly unlikely that Bush will get to pick three new Justice Scalias. First, even with 54 votes in the Senate, the Democrats can still filibuster the nomination which requires 60 votes to break. Second, even if the filibuster is scrapped (in this particular circumstance), which it might be (declared unconstitutional by a court?), there are enough moderate to liberal Republicans in the Senate who would refuse to pack the court with right-wing ideologues...unless of course, in two years, after the next election, conservative Republicans gain even more ground in the Senate.

Arlen Specter is the poster boy for the liberal-moderate Republican, and he also is likely to be the chair of the Senate’s judiciary committee. And he’s already given Bush a warning not to try to pack the Court with extremists.

My predictions on a man who will be nominated and confirmed to the Supreme Court (especially if it looks like an ugly battle will ensue): 10th Circuit Judge, Michael McConnell. He is a fairly solid conservative, but enough of a free thinker and a brilliant and accomplished scholar that he commands respect from all over the ideological spectrum.

Just check out this list of law professors who supported his nomination to the 10th Circuit; it’s full of right-wing conservatives, libertarians and left-wing liberals. He’s one guy who can come to Bush’s rescue in the event that it looks like a war will erupt over an open slot on the Court.

From John Hart Ely, Akhil Amar, Cass Sunstein, and Paul Finkelman, to Randy Barnett, Richard Epstein, David Bernstein, and Eugene Volokh, to Lino Graglia, Douglas Kmiec, Robert George, and Charles Fried…If he already has been confirmed to the 10th Circuit and can get that kind of coalition of minds behind him, I’d say he’s a sure bet—for a solid conservative—to get confirmed to the Court (but one of the few, perhaps the only real conservative I can think of, who I'd put my money on).

Update: My Dad writes:

Hey Jon,

It’s only me, but I wanted to say that John Hart Ely died recently (after his endorsement of McConnell, but you may want to note that if you use him in a prospective context). Also, as for the filibuster—it is here to stay. I believe that no court—especially the Supreme Court—would interfere with the internal rules of the Senate, which is what the filibuster is, because it would be a “political question” that the courts would never touch. The Senate could, in theory, change their internal rules and abolish the filibuster—but don’t court on it because it has become so much a part of the Senate system that neither out of power Democrats or overreaching in power Republicans would dare to abolish this ingrained institutional policy. Further, cloture (cuts off unlimited) is the existing remedy (60 votes) and it has been used successfully (in actuality or by mere threat) on a number of occasions. The 1964 Civil Rights Act was finally a reality due to the ability of non-Southern Democrats and a handful of liberal Republican Senators getting together to cut off unlimited debate with 60 or more votes. But, a constitutional challenge is not a realistic issue. Keep on blogging.

Dad