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July 1, 2005
Dafydd: The Garza Trip

(I could actually have picked all of the categories for this post, as the Supreme Court now encompasses the entirety of human endeavor.)

Over at Patterico's Pontifications, Patterico suggests, in an update to a guest post by Angry Clam that is both angry and potty-mouthed, that a good choice to replace Sandra Day O'Connor on the Supremes would be Emilio Garza. I agree; but as always, I have my idiosyncratic reasons for doing so.

UPDATE: Patterico notes in the comments here and on his own blog that he is not suggesting Judge Garza for the Supreme Court; he is predicting that Garza will get the nod. Patterico's actual fave for the seat is Judge J. Michael Luttig, who has sat on the 4th Circus for fourteen years. Apologies, Patterico!

O'Connor was the first woman appointed to the Court. She was appointed by Ronald Reagan, but she turned out not to be reliable as a "strict constructionist." In fact, she issued many rulings that conservatives and libertarian-conservatives found very troubling, including support for a virtually unfettered "right" to abortion and recent rulings -- one in the majority, the other in the minority -- to bar the display of the Ten Commandments on public property.

If you believe in limiting the ability of unelected federal judges to decide the great issues of the day; if you prefer that such issues be decided by the people themselves, either directly through referenda or indirectly via the legislatures; or if you just want to see the ultraliberals in the Senate spasm like monkeys undergoing electroshock therapy, then you will want to see the president name a strict constructionist to replace her. (See the Wikipedia for a thumbnail discussion of what the heck that means.)

But if Bush were to replace O'Connor by some conservative male, a hue and a holler would erupt from the Democrats that the O'Connor seat is supposed to be a "female" seat. Bizarre as this sounds, it would give the Democrats a ready-made excuse to filibuster -- and it would give moderate-to-liberal Republicans (Lincoln Chafee, Olympia Snowe, Susan Collins) reason to vote against him.

But, while it's true that there are only two women on the Court, it's also true that there are exactly zero Hispanics. And as cynical as it may sound, the political damage of a "female" seat shifting to a "male" seat can be ameliorated by it also being a shift of a "white" seat to a "Hispanic" seat.

In other words, if Bush were to nominate a Hispanic, even a Hispanic male, to replace O'Connor, the opposition of feminists would be met by the support of Hispanics. Many otherwise reliably liberal Democratic senators from states with large Hispanic populations (Diane Feinstein and Barbara Boxer from California, Bill Nelson from Florida, Jeff Bingaman from New Mexico, and Harry Reid from Nevada) -- and even a notoriously unreliable Republican, John McCain of Arizona -- would come under intense pressure from their constituents to support the appointment of the first Hispanic to the Supreme Court. Even many liberal senators from states with no significant Hispanic population might conclude that it was more important to break that racial barrier than to keep a somewhat conservative XX seat from going reliably XY conservative.

But which Hispanic should Bush name? The three names that come bubbling up (probably because most people, including moi, don't know more than three Hispanics who have been talked about for Court material) are Miguel Estrada, Alberto Gonzales, and Emilio Garza.

The first two bring problems: Estrada was originally nominated to the powerful D.C. Circus Court; but he was filibustered, and he eventually got fed up with the whole affair and withdrew his name. To the Democrats, renominating Estrada would be like giving them dessert after a wonderful entr: it was T-bone steak to drive him away the first time; and now that he has demonstrated spinelessness in the face of battle, it would be key lime pie to run him off a second time.

About Gonzales, there are two more substantial objections: first, he is far from being reliably strict-constructionist; in fact, many think he would be even worse than O'Connor. As some Republican senatorial staffer quipped, "Gonzales is Spanish for Souter," referring to Bush-41 appointee David Souter: thought to be conservative, Souter was nominated by GHWB to the Supreme Court after less than three months on the Circuit Court; he subsequently "grew in office" to become one of the most liberal justices in the joint.

But even worse than that, Ramesh Ponnuru pointed out in National Review Online that because Gonzales was White House Counsel for four years (arguing on behalf of President Bush) and is now Attorney General, he would have to recuse himself from half the cases that come before the Court... and especially from any case involving partial-birth aboriton, affirmative action, turning over classified documents to Congress or to news agencies, or any case involving the war on terrorism -- military tribunals, the treatment of detainees at Gitmo, the War Powers Act, and so forth, all cases where Gonzales himself argued on behalf of the Bush administration. That's pretty much every case of moment for the next several years!

So that leaves Emilio Garza: a solid strict constructionist with fourteen years on the 5th Circuit (appellate) Court and well known to the Bush family, since it was Bush-41 who appointed him to the Circus Court in 1991.

So that's my story, and I'm sticking to it: Garza for the Supremes!

Sphere It Digg! View blog reactions
Posted by Dafydd at July 1, 2005 6:04 PM

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Dafydd ab Hugh, guest blogging over at Ed Morrissey's Captain's Quarters, constructs a logical argument that all roads in the Supreme Court nomination process leads to Emilio Garza. Who? How? Why? Click on over and let Hugh explain.... [Read More]

Tracked on July 1, 2005 9:29 PM

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Tracked on July 3, 2005 9:52 AM

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