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September 6, 2005
Next Battlefield, The O'Connor Replacement (Part Two)

It may sound odd to discuss how George Bush plans on replacing retiring Supreme Court Justice Sandra Day O'Connor. We all watched him announce O'Connor's replacement almost two months ago, John Roberts. The President's transition of Roberts to the Rehnquist seat, however, puts the political debate on how best to honor O'Connor's legacy best back on the front burner.

As I note above, that debate will no longer involve Roberts. The decision to remove Roberts from O'Connor's seat accomplishes that, as well as opens the door for O'Connor to rejoin the court temporarily while Bush and the Senate work through the process of nominating and confirming her successor. No one has heard whether O'Connor actually plans on honoring that offer, by the way, although Chuck Schumer and the New York Times certainly hope for it.

One of the Washington Post reports on the Roberts shift gives an insight into what drives the Democrats so hard on O'Connor, surprising since she has been nominally more conservative than liberal on the bench:

Thus, the Warren Court's jurisprudence probably owed as much to the thinking and interpersonal skills of Justice William J. Brennan Jr. as it did to the ideas of Chief Justice Earl Warren. Sandra Day O'Connor, an appointee of President Ronald Reagan who often found herself unable to agree with Scalia, was the controlling force of the Rehnquist Court.

This goes beyond being a swing vote; Lane implies that O'Connor provided some philosophical counterbalance to Scalia (no mean feat, that). If true, then her loss definitely puts the Democrats on the defensive more than her record would indicate. The Senate Democrats will again look to play for blood on this score.

Bush will have two choices in strategizing for the nomination. Either he can offer an ideologically neutral candidate, or at least one with a Roberts-like paper trail, or he can address the demographics that the Democrats exploited with the selection of a male jurist to replace the first female Supreme Court justice. My guess will be that he might try the latter. I like Janice Rogers Brown for that role -- she's outspoken and highly intelligent, perfectly qualified through her years of service at the California Supreme Court, and best of all has already been confirmed once by this session of the Senate.

However, if Bush doesn't want to jab the Senate in the eye, he may consider Edith Hollan Jones. Jones is understood to be a solid conservative but has less of a public profile than JRB. She has served for twenty years in the appellate bench but is still only 56 years old. Bush's father reportedly had her on the short list for the opening that went to David Souter. Her long record of service will give Senators ample public documentation and remove their stated reasons for inappropriate probing for the Roberts confirmation.

I still think Janice Rogers Brown makes the best possible candidate for the opening. However, Jones makes an excellent optional candidate, especially given the politics of the O'Connor seat. Bush has had the opportunity of a painless dry-run at it; let's see what lessons he applies to the do-over.

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Posted by Ed Morrissey at September 6, 2005 5:21 AM

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» The Roberts Nomination from Stones Cry Out
President Bush, who has taken a lot of heat for the government's response to Hurricane Katrina, again proved yesterday that he is a very shrewd politician by nominating Justince John Roberts to succeed the late William Rehnquist as Chief Justice.... [Read More]

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» Janice! Janice! Janice! from The Theocrats
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