Tuesday, June 28, 2005

Out on a limb ...

I'm not completely alone in thinking that we may see a well-timed retirement and a recess appointment to the Supreme Court. The neolibertarian network's Jon Henke calls the notion "entirely plausible."

On the other hand, I'm not seeing the prediction elsewhere, Kerfuffles has a different idea and Logan Ferree of the Democratic Freedom Caucus is skeptical ... so I guess I'm either out of my mind or ahead of the game.

Here's why I think it's not just plausible, but likely:

- The Democrats have made extensive use of the filibuster and/or threat of the filibuster to hold up President Bush's judicial nominees. Now I'm a Democrat, and I regard the filibuster as an entirely legitimate parliamentary tactic, but it's also a tactic that exposes the party using it to accusations of foul play (and Democrats have been the first to raise such accusations when Republicans have held up confirmation votes using it). Thus was born

- The nuclear option: A proposal by the GOP Senate leadership to do away with filibusters by having the President of the Senate (Dick Cheney when he's in town) rule that a majority vote is sufficient for cloture, and then by having a majority of the Senate uphold the ruling of the President on appeal. This led to

- The compromise: Fourteen Senators, seven from each party, agreeing to head this off: The seven Republicans agreeing to vote against upholding the "nuclear option" ruling, the seven Democrats agreeing to vote for cloture and let some of Bush's nominees be confirmed.

So, where does this leave us?

Right back where we started, of course.

Call your bookie. See what kind of odds he'll give you on a bet that the Democrats won't filibuster whomever Bush nominates as the next Chief Justice. 100 to 1? 500 to 1? You could get rich if you won. But you won't. We know it's going to happen. Bush could appoint Bill Clinton as the new Chief Justice. He could appoint Howard Dean. Hell, he could appoint Dennis Kucinich -- and five minutes later the Democrats in the Senate would be busting their guts screaming about the right-wing monster whose confirmation would guarantee the overturn of Roe v. Wade, the return of segregation to government schools and, quite possibly, the descent of a plague of locusts upon our prostrate nation.

If Bush makes a normal appointment, it's either filibuster city or the nuclear option.

Even if Bush believes that the GOP will retain its majority in the 2006 elections ... even if he believes that the GOP will gain a filibuster-proof majority in the 2006 elections ... he won't want to leave a seat on the court vacant for that long. And, in fairness, I wouldn't either if I was the president.

The nuclear option might work. Or it might not. And even if it does, it smacks even more of parliamentary trickery than the filibuster does. The filibuster, at least, has a history.

Recess appointments have a history, too. A little Googling says that no fewer than 15 Supreme Court justices have come to the court via recess appointment, the first one in 1795.

So ... be the Bush, Danny ... be the Bush. Are you going to:

a) Leave the Supreme Court one man short, and that a man on your side of most political divides, by not making an appointment or by making an appointment and leaving the appointee in filibuster hell?

b) Trot out a parliamentary trick that didn't work last time, might not work this time and will carry baggage for your party even if it does work? Or

c) Do something that's legally sound, has numerous historical precedents, and puts the jurist you want -- any jurist you want -- on the bench for at least a year-and-a-half?

Maybe I'm giving the Bush administration more credit than it deserves for thinking things through and winning fights. But I don't think so. I think this will happen.

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