Scylla and Charybdis

With the rumors mills abuzz with the pre-story that Chief Justice William Rehnquist will retire before lunch, the science of SCOTUS analysis has broadened to a full-bore multivariable calculus. Josh Marshall sees an advantage for Democrats: In short, insofar as the Democrats leveraged the staging of the nuclear filibuster battle for the SCOTUS, concurrent objectionable nominees is that much more evidence the court of public opinion that President Bush is trying to stack the Court with ideologues—should it come to that. The converse is that two distinct nomination battles are easier victories for the right than one nomination war.

Ezra Klein shows a different sort of guarded pessimism: Concurrent nominations will fall in such a way that Democrats can't win but won't lose too badly. Citing Loyola law prof Richard Hasen in The New Republic, Klein explains that President Bush owes socons too much to not nominate a socon Justice, which, under a single-nominee scenario, would set the stage for nuclear war in the Senate. Concurrent nominations, on the other hand, offer a better view of the complete Court—President Bush nominates a radically conservative Justice (thereby replacing Rehnquist) and a Gonzales-type moderate (thereby replacing SDO'C). The net Court transformation is minimal and Senate Democrats preserve the filibuster.

I'm thinking that with two seats up for the taking, the far right will become that much more insistent about nominating ideological candidates. Given concurrent nominations, I expect the center in the conversation to slide to the point that Gonzales becomes the unconscionable liberal activist's pick. Neither Klein nor Marshall mentions that upping the ante by a Justice will have the religious right revaluing its hand, too, but I don't think that will significantly affect the way the cards fall.

Now—it's been voiced elsewhere, so I'm not saying anything new—but I'm still unclear by what mechanism Gonzales became a lib-friendly nominee. Perhaps because he never ardently spurned precedent or penned comparisons between liberalism and slavery (the notorious examples of Priscilla Owen and Janice Rogers Brown, respectively). But I do know that he drafted the torture memos, which not only served to excuse detainee abuse but also advocated the opinion that the Commander-in-Chief should circumnavigate rather than challenge inconvenient laws signed by . . . the Office of the President. Whether Gonzales is a loss for socons (and who knows?), he's a loss for jurisprudence.

(Crossposted at BTD.)