The Next Justice

&#8220[A]ll the outside chatter is meant to misdirect us from the actual nominee.&#8221

With a Presidential announcement any day regarding Sandra Day O’Connor’s replacement, it is time to review what we know and what we do not know.

First, we know that many in the legal community think Priscilla Owen has the nod. Robert Novak’s reporting has been consistent with that assumption. We also know that she had a private meeting with the President. Lastly, we know the President is fond of her. Unfortunately, some also think Owen is not strongly pro-life and would never vote to overrule Roe v. Wade.

Second, I have five unconnected sources, including two inside the White House, who are telling me that Rove thinks Gonzales needs to be considered and that Gonzales is more conservative that we all think. The Washington Post has had similar information. One source alone would be rather inconsequential, but five unconnected people telling me the same thing makes me think this is credible. Nonetheless, I agree with K-Lo. I do not think Alberto Gonzales will become Justice Gonzales. I just don’t see it happening.

Here’s why. The conservative base got a very upset stomach when it appeared all but certain that Joy Clement was the nominee. The base is already against Gonzales. While Rove may be doing his calculations that there is enough on the court’s docket to prove Gonzales’s bona fides before the midterm elections, the base will be apoplectic for a good long while and the President will have a lot of difficulty moving what little remains of his agenda until people realize Gonzales is actually a conservative. Additionally, what went under the radar for most was that while Rove is pushing Gonzales, there are doubts as to how easily Gonzales could be confirmed. The Democrats are itching for a fight and Gonzales gives them lots to fight with.

If the President wants to rally the base, choosing Gonzales would be a disaster. The base is already angry over spending and Gonzales will not help. This does not make sense and I do not think it will happen.

What we do not know is very obvious. Who the nominee will be is a great mystery right now. Owen is up there. I still think Luttig is in play based solely on my gut and his qualifications. One name that started surfacing in my email and IMs over the past twenty-four hours has been Diane Sykes. Batchelder’s name keeps coming up too.

Perhaps the most interesting name that keeps surfacing is that of Miguel Estrada. Former Solicitor General Ted Olson has been a big proponent of Estrada’s, but it is unclear that Estrada wants to try that fight again — especially when the stakes are so much higher. I am, however, inclined to think the next justice will come from one of the United States Courts of Appeal and Estrada does not fit.

The White House is doing an even better job of keeping the lid on this nominee than the last. That leads me to believe that all the outside chatter is meant to misdirect us from the actual nominee. I have said repeatedly here and elsewhere that Karl Rove and President Bush both believe one of the main reasons the Republicans have been so dominant since 2000, is because of a conservative base who think judicial victory is just around the corner. That to me means that we will see the President nominate a conservative — perhaps not a Jones or a Garza, but a conservative of high professional reputation with a paper trail that does not contain the specific answer to the question “how definite has the nominee been on the issue of overturning Roe?”

We’ll find out who it is rather soon.

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Erick Erickson

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1 Comment

  • I’m no proponent of Gonzales, but I don’t understand the visceral hatred I see on other sites about him. I think Batchelder is the most likely nominee this time. I would have no problem with Gonzales replacing Stevens or Ginsberg next summer.

    The real politics of the O’Conner replacement is not about the Dems. Rather Bush’s main concern is not losing the RINO’s. If we had 55 strong conservatives then he could nominate Judge Bork. Problem is if Bush does what Brownback wants and nominates a judge with a documented position against killing children then he loses Specter, Snowe, Collins, Chaffee, and a couple others.