Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Friday, June 24, 2005
There is something I don't understand about these rumors that Bush will nominate Gonzales to replace O'Connor. How much leverage does the President have over GOP Senators to vote for Gonzales to the Supreme Court?

There are 55 GOP Senators. Assuming the Democrats want to bloody Bush's nose (can we safely assume that? I think so, even though killing Gonzales would mean making common cause with conservatives and making a more conservative nominee more likely), Bush needs 50. Can he count on that many?

There are five GOP Senators with 2008 on their minds who might not be totally reliable if Christian conservatives express dismay at a Gonzales pick.
  • Sam Brownback is a very staunch pro-lifer with 2008 ambitions.
  • Bill Frist is no slouch in the staunchness department, and has at least as strong ambitions.
  • George Allen is currently one of the front-runners for 2008, and he won't want to blow that by annoying a key constituency.
  • Chuck Hagel is also strongly pro-life, and has no reason (or hope) to curry favor with the President, and he thinks he's a plausible 2008 candidate.
  • John McCain is pretty comprehensively unreliable, and needs to burnish his pro-life credentials if he wants to be credible in 2008.
And there are plenty of strongly pro-life Republicans without 2008 ambitions, who might be thinking further down the road or just deciding to stick to their guns. Some of these owe Bush for his support in 2002 or 2004, but unless they are up for re-election in 2006, to them Bush is already a lame duck.

(And I note that Conrad Burns did not vote when Gonzales came up for Attorney General, though I don't know why; perhaps he was simply out of town.)

And then there's Lincoln Chafee. He might want to curry favor with Bush for support in a GOP primary in Rhode Island. But it's at least as likely he'd try to please both liberals *and* conservatives by voting against Gonzales.

And here's the thing: it only takes one defection from the Right to bring (potentially) serious trouble for the nomination. If, say, Sam Brownback comes out against, doesn't that put pressure on, say Rick Santorum, who faces a tough fight against pro-life Democrat next year? It's one thing if the only defectors are the usual mavericks and/or liberals - a McCain or a Chafee. But if even one Senator from the conservative core defects, I think it's likely that others follow quickly.

Now, of course, I'm painting the picture more dire than it really is. We don't know that the Democrats could maintain discipline against a Gonzales nomination (6 Democrats voted "Yea" for AG - Landrieu, Pryor, Salazar, the two Nelsons and Lieberman - and at least Lieberman and Salazar would be pretty inclined to vote "Yea" again, I should think). We don't know that the Democrats wouldn't welcome a Gonzales nomination, saying, effectively, "if we give him this one, then we can vote against whatever fire-breather he nominates next, and our Gonzales vote makes us look non-obstructionist." And we don't know that the Christian Right would be willing to take on President Bush over this, whatever rumblings we're hearing now.

But Bush would be demanding loyalty for what is, essentially, its own sake. Bush wants Gonzales, assuming he does, because Gonzales has been loyal to him, and he wants to reward that loyalty. That's the only value at stake here; Gonzales doesn't represent any particular philosophy or faction.

Bush would effectively be playing a game of chicken with the Christian Right if he nominates Gonzales, because if they revolt, they would effectively be revolting because Bush didn't impose an abortion litmus test. In the national media, that means they lose - and, worse, it makes it harder for them to press their case in the future on judicial issues, since it will be apparent that they, like the Democrats, think ideology, not merely competence, fairness and temperament, should determine who gets appointed to the judiciary. Pro-lifers will realize this, and it will give them pause about openly revolting.

But I think this is a dangerous game for him, because he needs the loyalty of the Christian Right to advance his larger agenda and to keep or expand his legislative majority in 2006. If they knuckle under when Bush plays hardball, will he still have that loyalty when he needs it more?

As for Gonzales himself: I don't have a very strong impression of him. I tend to gravitate to Justices with an intellectual bent and with strong but modest principles. That's why I like Michael McConnell so much. Rhenquist actually fits that bill reasonably well, too. Gonzales, from what little I can tell, seems more like O'Connor than like Souter or Kennedy - that is to say: he's more likely to be a common-law pragmatist who calls 'em like he sees 'em rather than a modest and deferential liberal (like Souter) or a one-man crusading philosopher-king (like Kennedy - can you tell I don't like Kennedy?). That doesn't thrill me, but it certainly isn't the worst thing in the world.

And as for overturning Roe: I think pro-lifers are delusional if they think the Court is going to flat-out overturn Roe. I think Roe is fairly incoherent, and that it's founded on a privacy doctrine in Griswold that is worse than incoherent. But Miranda never made any sense either, and Rhenquist voted to uphold it because it had become part of the fabric of American law and custom. If the GOP manages to slowly change both the judiciary and American hearts-and-minds on the subject of abortion (which, I believe, it is doing; Americans have moved several percentage points in the pro-life direction in the past 10-20 years), you will start to see decisions hollowing out Roe from the inside, much in the way that through the 1940s and early 1950s there were a number of cases decided against segregation laws that chipped away at the edifice of segregation without directly challenging the legitimacy of segregation as such. And if and when Roe is overturned outright, it will probably be more in the way that Brown overturned Plessy than by direct repudiation of the idea of a right to privacy. Why do I say this? Because the absurd doctrine of "substantive due process" is still with us long after Lochner was consigned to the dustbin of history.

If I'm right about this - about how the Court works, about how Constitutional doctrine evolves, about the limits of what can be achieved by replacing one or another Justice - then Gonzales is probably not a calamity for the pro-life cause, though certainly a disappointment.

But if I were a single-issue pro-life voter, I might not listen to me.