The Second Pick

Sunday, October 02, 2005
It is likely that President Bush will announce his choice of the person who will replace Justice O’Connor sometime on Monday. While I have some hopes regarding who will be chosen, I have no real idea who the choice will be. What I do know, with a confidence level approaching certainty, is that the person chosen will be characterized as “outside the mainstream” by the usual suspects within an hour of the announcement. Unless, of course, Justice Ginsberg has been successfully cloned and President Bush selects the clone to fill the vacant seat.

I’m not offended by the tactics that will be used, they are part of the Kabuki ritualization that has become engrained within the political process since 1968 and they reflect the fact that the MSM propaganda edifice and the party which it represents is the essence of the one trick pony. It is a curious thing to me that the pony act, which has never drawn an audience large enough to pay the pony’s feed bill, continues to be embraced by people who purport to have the intelligence necessary to provide leadership for the nation. A political party grows and therefore gains access to the power of governance through the identification of areas of general concern and the presentation of a logical set of programs that address those concerns. I am unaware of any party ever having succeeded at the polls by simply announcing "Vote for us - we're not them."

It is my thesis that the mindless reactionary opposition to the President’s choice tomorrow will be further evidence of the decline of the Democratic Party – regardless of whether some nit is found in the past of the person picked which causes their withdrawal. Any “victory” thus gained will result in a subsequent “loss” when the next person or even the third choice is confirmed. The fact is that the President will choose the person to replace Justice O’Connor just as every President has successfully done in any but the last year of his administration. One definition of madness is the repetition of behavior with the expectation of different results. Perhaps the Democratic Party is not intellectually bankrupt but simply mad?

What will they do about the third and fourth picks? Morbidity tables suggest a high probability of a third pick and a reasonable probability of a fourth. Four picks (assuming that those picked were moderately conservative) with Scalia and Thomas remaining on the court would give the Roberts court a flavor untasted in living memory.


Harriet Miers is the nominee and the usual suspects are beginning to perform as expected (would Pavlov's dogs or Skinner's pigeons be more useful as a cliched metaphor?). I am totally unexcited by the pick - it satisfies neither Vnjagvets hope for a high degree of legal sophistication nor his followup hope for a political red meat pick. My first take is that it's a 'null' pick which is very much open to charges of cronyism.


flenser said...

What will they do? I assume they will do more of what they are currently doing. The pattern of media and prosecutors working hand in glove with the Democratic party will continue and accelerate.

The goal will be to drive down Bush's support, and also to pick up seats in the Senate in 2006.

The smart move would be for the Democrats to preserve the filibuster until 2006 in hopes that they might then be able to use it. Luckily for us, they seem too far gone to realize that.

The best step for us is to break the filibuster now. Otherwise our options for a third pick will probably be reduced.

Jamie Irons said...


Beleaguered as he is, perhaps the President will realize he's going to be hammered by the Dems no matter who he goes for, so he might as well choose at least a moderately conservative candidate.

I hope so, because as this war goes on I would like to feel confident that our courts won't be releasing terrorists as they have done, to their sorrow, in Indonesia.

MeaninglessHotAir said...


The war will be long and many mistakes will be made. That's true whether we win or lose. We have certain obvious advantages but we also possess certain disadvantages maybe not so obvious. For example, inability to think long term. Inability to see the world beyond our shores clearly. Inability to believe it isn't really all about us. Inability to do the hard thing, even when it's necessary. Inability to change our system if it is abused.

The issue is still very much in the air and I predict it will continue to be so throughout our lifetimes.

Rick Ballard said...


I don't believe that a tactic of driving down Bush's support makes much of a difference in terms of next years elections. House, Senate and Governors races generally revolve around local and statewide issues. I would note that the Dem Senators in in unsafe seats voted for Roberts (excepting Stabenow). The Senators who are now in a real bind (should Bush nominate a strong conservative) are the Seven Dissembling Dwarves. DeWine, in particular, finds himself twixt Scylla and Charybdis. Graham will also face a politically mortal decision should it come to a filibuster. Ol' Goofball can do as he likes, secure that he will be petted by a fawning media but Graham will put his seat and future on the line should he not vote to break a filibuster.


Bush pretty much has to go with a straight conservative if he wants to hold the Congress in '06 (local issues notwithstanding). While the Dems cannot hold town Rep turnout, the wrong pick sure could. Even another pick like Roberts would be a risky political move. The confirmation of a strong conservative will guarantee the support of the conservative base, which is almost double the size of the liberal base. That's the fact that makes the Dems reactionary efforts so stupid on a strategic level. Whipping twenty per cent of the elctorate into a frenzy through oppositional tactics is meaningless.

Btw - he ain't beleaguered.

terrye said...

I think Bush will pick the person he believes deserves the post. I don't think politics will be as much an issue as getting the person he wants.

Remember Bolton.

I do think this nonsense about Plame and Delay is all designed to hurt Bush, but I think the Demcorats tend to over reach.

I hear the Post says that Fitzgerald may bring a conspiracy charge against WH officials, even if no crime was commited.

This is getting stupid.

Rick Ballard said...

"This is getting stupid."

The Pincus WaPo piece is based on info from attorneys who, if they exist, are breaking affirmations that they made concerning keeping secret the investigation's potential actions. Now we need a prosecutor to investigate the investigators. I'd love to see Pincus in jail for refusing to reveal which of the investigating attorneys was an oathbreaker except that I doubt that such an attorney or attorneys exist. In my opinion Pincus is an outrageous liar and the WH should bar further contact by any administration official with any WaPo propagandist pending his dismissal.

This will be an interesting week.

terrye said...


I just do not see how it can be legal to accuse someone of conspiracy to commit a crime if there is/was no crime to commit.

As you say Pincus is not exactly objective here.

So far as I know he has never discussed the fact that Wilson got caught lying and his wife [Plame] did indeed send him to Africa.

How about an investigation into the fact that certain people in the CIA seem to forgetting they work for the elected government, not the other way around..

chuck said...

Morbidity tables suggest a high probability of a third pick...

I have heard speculation about Ginzburg's health. Do you have anyone else in mind?

I am rather partial to Janice Rodgers Brown due to the one dissenting opinion of her's that I read concerning the rape conviction of a minor. A further recommendation comes from the Save Our Courts folks, who characterize her thus:

A review of California Supreme Court Justice Janice Rogers Brown's record to date raises serious questions and grave concerns about her persistent and disturbing hostility to affirmative action, civil rights, the rights of people with disabilities, workers' rights, and criminal rights. In addition, Brown has often been the lone justice to dissent on the California Supreme Court, illustrating that her judicial philosophy is outside the mainstream. Not only does she show an inability to dispassionately review cases, her opinions are based on extremist ideology that ignores judicial precedent, including that set by the U.S. Supreme Court.

Sounds like my kind of judge!

Rick Ballard said...


I wasn't referring to any specfic justice. Justice Ginsberg was diagnosed and treated over six years ago. Excluding Roberts, Thomas and O'Connor the average age of the other six justices is over 72.

Although the fireworks would be fun to watch I doubt that the President will go with Brown. There are at least ten judges that would do as well from a conservative POV and some of them have somewhat stronger credentials.

vnjagvet said...

In my first post, I suggested the type of person Bush I thought should nominate from a lawyer's point of view. What follows may seem inconsistent with that advice, and it is. Lawyers and politicians do not think alike. This is my sneaky politician's advice.

I believe JRB would be a good selection from a political standpoint for a number of reasons.

She was just confirmed courtesy of the fourteen filibuskateers.

She represents ever hallowed diversity as a twofer.

She is articulate and feisty and will likely skin the likes of Kennedy, Feinstein and Schumer alive.

The hearings will take many more days than the Roberts hearing, guaranteed. This will eat up attention on the war, on scandals, and on the hurricane stuff. (Talk about wag the dog, this is a real tailwagger).

It will take a filibuster to stop her.

This gives the Republicans a real credible cause to invoke the "nuclear option" discrimination against an articulate accomplished black female who speaks her mind. What could be better than that?

flenser said...


I'm thinking JRB wil be saved for the third nomination. That is the one the filibuster will be used on, and that is where we will give them the option of filibustering the first black woman nominated to the SC.

I'm hoping for Alito or Luttig tomorrow. Let's all wish really hard ...