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June 24, 2005

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I'm freaking myself out, now. But is it beyond this administration to try this? Woman for woman, plus they get to play the race card.

It's only one step up from the DC Circuit to the Supreme Court. Is it "extraordinary circumstances" in itself to elevate a judge before she's even put a dent in her seat at the Circuit Court?

Just got a People for the American Way e-mail alert:

Get ready with People For the American Way!

There is much at stake should Justice William Rehnquist or one of his colleagues on the Supreme Court step down at the end of the term next week....

Right now, before any vacancy is announced, it is too soon to know the exact nature of the battle ahead - or if there will even be a battle. But we need to organize....

So I says to Mabel, I says...

Promote Janice Brown? Maybe this time the Senate would have to confront her small government views.

This seems like a pretty improbable idea. First,
Frist hasn't filed a new cloture motion on Bolton. It can't be done until Monday, with the vote Thursday, which would screw up the calendar for the week. And they want to be able to leave on Thursday. So no nukes on Bolton. More likely a recess appointment.

And do they really want to get rid of the filibuster altogether?

If O'Connor does retire, which is not unlikey, it seems to me we are back to having the nuclear option exercised while the country is watching a Supreme Court nomination.

Now we will find out whether "Supreme Court" is extraordinary in and of itself, or whether "SC without consultation" is extraordinary. Or whatever.

Well, it is the Washington Times, but someone thinks there may be a vacancy coming up. And Janice isn't on the short list.

So the President speaks Tuesday night in prime time. Iraq's the topic. How does this fit in?

Anything that takes a little heat off Bush would be welcomed. R's are drifting away. Is this part of the base rallying?

No cloture motion on Bolton or anyone else would be necessary for the nuclear option. Cloture has been tried and failed twice, so that's all the excuse Frist would need. And the nuclear option requires nothing more than a motion to close debate. It needn't be a ruling on the number of votes needed for cloture. Just a ruling on the propriety of, and votes needed to pass, a motion to end debate. A new motion, plucked from thin air will suffice.

As for the information in the Washington Times article, I wouldn't be surprised to learn that there are two short lists -- one for Rehnquist's retirement, and one for O'Connor's. The women would be on the O'Connor list, because while they'll be anxious to put as many of their boys on the Court as possible, they're also looking forward to replacing O'Connor with another woman that they can accuse us of being sexist for opposing. But they'd never think of replacing one of the boys with one of the girls, of course. That would be ridiculous.

By the way, that's some ad the Washington Times is running. "Hotel Gitmo" t-shirts? Classy, fellas. You're surely a "real newspaper," now.

Hotel Gitmo T-shirts ... and Duncan Hunter is bopping down to Gitmo for lumch. Guess he just couldn't resist that mouthwatering "two kinds of fruit".

By most of its proponents, the Nuclear option was special for judges, so Bolton was never nuke-eligible, right? But they'll be eager to move on judicial precedent before their polls erode further. (It would also add to the distraction from core issues like war and deficits.)

You're surely a "real newspaper," now.

Someone buy them in the last few hours? That's what it'd take, and even then...

Yes, the nuclear option was supposed to only be for judges, although there's no logical or legalistic reason for that. That was just supposed to calm frazzled nerves. I would love to see them try to backpedal out of that. Well, strike that. It wouldn't embarrass them, anyway.

It wouldn't embarrass them, but I'd like to see them try and talk their way out of the long history of filibustered executive nominees. They're not going to be able to dismiss all those cases with a Fortasesque wave of the hand.

I find it hard to believe that any judge just confirmed to a circuit position a few weeks ago could get an instant promotion to the Supreme Court, though. Is there even a precedent for this?

There's also the problem next week of the big release of the rest of the torture photos and videos. They are supposed to be very ugly. I assume anything they can try to do to upstage that they will.

Precedent? We don't need no steenking precedent. Everything changed on 9/11.

I think elevating a judge just confirmed to a circuit court would be absolutely insane. But so what? So is nominating a psychopath for UN Ambassador.

I think it sets up beautifully for a Rovian play. You just confirmed her, so you either were shirking your duty to carefully vet and review appointments to the second highest court in the land, or else you're "breaking" the deal by claiming that her conservatism wasn't "extraordinary circumstances" last month, but is this month.

And we'd stammer and spit and point out all the very valid technicalities that make perfect sense if you have the patience to pay ten seconds worth of attention to the subject. But for the rest of America, it sounds like "flip-flopping" or "obstructionism," if not "misogyny" or "racism."

I think to most Americans, getting a promotion 5 minutes after you landed your last job seems pretty fishy. You can always make arguments that go like "The Bush Administration did X outrageous thing, so of course they'd be willing to do Y" but that doesn't prove there is no limit whatsoever.

I will gladly combat their meme of "obstructionism" with our meme that "hey, we were tricked into letting this judge through as part of a compromise, and then you turn around and promote her even higher." I sure wish elected Democrats would do a little less worrying about being called "obstructionists" and a little more explaining that gee, when you're the minority party, it's kind of your obligation to go along with the stuff you like and to oppose the stuff you dislike.

Steve, you're definitely right that the X therefore Y argument isn't usually particularly strong. However, in this instance, I don't believe Y is beyond the pale for them. As it is, the elevation she just got was arguably a double jump. Owen was a Texas Supreme Court Justice, and they only moved her to the 5th Circuit -- her home circuit. Brown was a California Supreme Court Justice, and they bypassed vacancies on the 9th Circuit to bump her up to the DC Circuit. Not that the hierarchy is actually that strict, after all, the DC Circuit doesn't get bonus pay or anything. It's a circuit like any other. But then again, court watchers will admit it's really not like any other.

It would definitely be fishy, but I don't see them being at all uncomfortable with the explanation that the president really wanted her on the Supreme Court, but there just wasn't a vacancy at the time. After all, even though she just got through, she's been waiting four years, yadda yadda. Because of that "Democrat obstructionism," don't ya know.

It's not that there isn't a perfectly good answer for all of that. It's just that it's exactly the type of nuance that always causes us such problems. That makes it a no-lose proposition for Rove's crew. You get credit for nominating the first black woman, and if you lose, you've still already won her a pretty good job. Plus, you get to stress the nuclear option deal to the breaking point, and if you get really lucky, you bust it completely and kill the filibuster before nominating Abu Gonzales for Chief.

A thought experiment: if you could pick any reasonably conceivable Bush nominee to be the next Chief Justice, who would you pick? Thinking of all the names I've seen suggested, my choice might surprise you.

What are the odds of Roy Moore appointment? That one would be interesting. Anyway, I hope he tries to appoint a real clear-cut nutjob, so Democrats can spend the summer pointing out all sorts of crazy things conservatives believe.

What's the game here? The craziest judge we can think of that Bush might actually nominate? The craziest judge he could get through? Or the most conservative judge that Democrats would accept?

I think you're almost certainly right, kagro x, that there are two different lists -- one for Rehnquist and another for O'Connor. And I suspect you're also right that Janice Rogers Brown is on that list. I also do not doubt that they will make all the (bogus) arguments that you suggest and that there will be aready audience to echo them.

But I believe we have a great counter-argument. Janice Rogers Brown's appointment to the DC Circuit Court was clearly exceptional because of what was involved in getting her that appointment. We went to the brink of a constitutional crisis and the threatened changing of Senate rules, to get Janice Rogers Brown confirmed. If that isn't exceptional, what is?

Most people only had limited understanding of the nuclear option debate, perhaps, but they definitely understood that it was an exceptional circumstance.

That's a good one, kainah. I'd certainly buy it. Unfortunately, I think we've been beaten to the bunch by the opposite spin. The one I've seen take root most firmly is "Brown is by definition not exceptional circumstances" spin, though it's pretty clearly wrong.

By the way, in looking for that link, I see I may have been more prescient than I really believed I was capable of at the time: "So, how long will we have to wait to test the durability of the 7+7 Compromise? Well, what's your June looking like?"

Hey, I diaried this over at Kos, but it seems to me that Rove's comments on the war, and specifically on supposed Democratic weakness and over-reliance on legalism may be a pre-emptive strike to either clear the way for an Al Gonzalez Supreme Court nomination (by making the Dems less likely, in the wake of Rove and Durbin to hammer the torture issue) or to heighten the stakes of it (by goading the Democrats into plowing full speed ahead against Gonzalez).

However, I doubt the above scenario will actually be the case, mainly because even torture included AG-AG-AG isn't a divisive enough nominee when one includes his ethnicity and relative moderation. Add the potential for release of more Iraq prison photos and I doubt the WH takes a chance on him.

At this point there can be no doubt that Rove will use the nominaion to try and restore Bush's approval numbers. But I don't think he thinks the way to do it is by a squishy, base displeasing "moderate" like Gonzalez. They'll pick someone more conservative and more divisive.

But if it is Gonzalez, forget everything but the first paragraph.

If one of the Supremes retires (or 2) look for a September appointment. That's the guidance I'm hearing out of the right-wing back rooms these days.

Unless they intend to use the nuclear option right now, this week, on a Supreme Court nominee, it is much more likely that they'll wait until September. That's true. Nobody wants to have the name out there, being researched and attacked, over the summer recess.

And an instant confirmation would just reek. I think the coast is clear until fall -- when W's commitment to "staying the course" will leave him even farther off the pace.

The game was supposed to be who YOU would want as Chief Justice, given that it has to be someone that Bush might actually pick. I apologize for being unclear.

I wouldn't want any of them. But there are some people I wouldn't filibuster, or might even just give up and vote for.

Posner? Kozinski? Uh, I don't know. Sentelle? I might not vote for Sentelle.

This is precisely why I wanted no compromise on the nuclear option last time around--it hasn't really changed anything.

Of course, with no compromise on the nuclear option, we sit exactly where we sit now, but with Myers and/or Saad also on the bench, Kavanaugh on the way, plus a foregone conclusion on the vote to replace any retiring justice.

At least this way, we can have the fight all over again if the nominee is a total lunatic.

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