Scenarios, Part 1

This is an exciting time for someone who studies courts, even if it's a harrowing time for someone not enamored of GWB's nomination choices. I'm both those people, so I'm trying to stay in a cool, "scientist" mode rather than think about the policy consequences of the things I'm contemplating.

The Supreme Court Nominations Blog is blowing up with posts collecting observations, posts to other court blogs and journalism about today's developments (for more see How Appealing.

To convey a sense of the stakes in O'Connor's replacement, a fresh post states:

Between 1995 and the present, Justice O'Connor has been in the majority in 148 out of 193 cases that the Court decided by a 5-4 majority in whole or in part. Between 1996 and the present (stats for 1995 are unavailable), Justice O'Connor authored 25 of the cases decided by a 5-4 majority in whole or in part.

On the when of that replacement, we read that Bush won't name a candidate until after he returns from the G8 on July 8th.

The who question looks staggeringly complicated. Persistent rumors, discussed here before, named AG Gonzalez as the man likely to be tapped for a replacement, a scenario analyzed here. Lyle Denniston argues that Gonzalez is an unlikely replacement for O'Connor, because conservatives see this as a chance to make gains on several issues where O'Connor dissatisfied them, especially on abortion. He describes Gonzalez as "marginally" more conservative than O'Connor, but not high on conservatives' lists. Bush, he continues, is more likely to give Gonzalez Rehnquist's seat, making "a major political statement by naming the first Hispanic-American to the Court -- and, no less, to the Chief Justiceship." I'll note here that depending on how one defines "Hispanic-American," Benjamin Cardozo could qualify as the first on the Court.

This reasoning makes no sense to me. If Rehnquist were a moderate, then replacing O'Connor with a staunch conservative and rewarding Gonzalez with the CJ chair would represent a gain for conservatives (given their vocal opposition to Gonzalez.) But under this scenario, Bush would be asking conservatives to trade an O'Connor gain for a Rehnquist loss and leave them at or near zero. For a brief bio and analysis of AG AG's voting on the TXSC, see here, here and here.