Friday, July 08, 2005

How 'bout some o' that old-time conservatism on the Supreme Court?

Thus far, all the talk has been about Gonzales and a group of conservative judges that includes Luttig, Roberts, Garza, McConnell, Wilkinson, Alito, and and Clement -- see here. But Slate's Emily Bazelon and David Newman have put together a list of alternatives to these "radical right-wing" candidates. For, they ask, "what if the president decided to look instead for a conservative in the traditional sense of the word, a distinguished jurist who believes in moderation, judicial restraint, and deference to Congress?"

As I've suggested before, judicial restraint is very much at the heart of Gonzales's "ideology" (along with moderation on such issues as abortion and affirmative action), which is precisely what distinguishes him from the leading contenders on his right. I've called him a moderate, relatively speaking (that is, in relation to those leading contenders on his right), but in fact true conservatism is very much characterized by restraint. And I, for one, would prefer Gonzales's authentic conservatism, in terms of judicial restraint, to the radicalism, in terms of judicial activism, that characterizes those leading contenders on his right. But if not Gonzales, here are the "traditional" conservatives mentioned by Bazelon and Newman:

  • Maureen Mahoney -- appellate litigator, Washington, D.C. (Latham & Watkins)
  • Reena Raggi -- U.S. Court of Appeals, 2nd Circuit
  • Deanell Tacha -- chief judge, U.S. Court of Appeals, 10th Circuit
  • Barrington Parker -- U.S. Court of Appeals, 2nd Circuit
  • Frank Easterbrook -- U.S. Court of Appeals, 7th Circuit
  • Richard Posner -- U.S. Court of Appeals, 7th Circuit
  • John Danforth -- former Republican senator from Missouri
  • Michael Boudin -- chief judge, U.S. Court of Appeals, 1st Circuit
  • John Walker -- chief judge, U.S. Court of Appeals, 2nd Circuit (and Bush's cousin)

No, Bush won't go with one of these distinguished options, but they're all respectable conservatives who would be sure to practise restraint on the Supreme Court. And, again, isn't that what true conservatives (rather than the radicals on the far right) really want?

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Bruce Reed, Clinton's domestic policy advisor and current president of the DLC, writes about Bush and Gonzales at his Slate blog, The Has Been:

Give Alberto Gonzales credit—for the first time in Bush's presidency, right-wingers are genuinely nervous that the President might not do everything they want. Until now, the Bush White House made it easy: Send Karl Rove your shopping list, and wait for a reply e-mail with the number to track your order. While such first-class customer service has kept conservatives happy, it spoiled them as well. Now that they have a real fight on their hands, they don't know which buttons to push.

After all that care and feeding from the White House, conservative groups no doubt assume they have the power to cross names off Bush's list. In the end, perhaps they will. But their first salvo—an all-out attack on Gonzales—seems to be having the opposite effect. Bush has testily defended his friend two days in a row, and the White House had to tell the right to pipe down...

The right wing wants the White House to think that if Bush picks Gonzales, conservatives will take to the streets and weep like Parisians. But from a sheer political standpoint, the case for Gonzales isn't even a close call. No matter how much conservatives pout, Bush will do far more to expand the Republican party's reach by putting the first Latino on the court. Gonzales will probably be a much more reliable conservative than the right fears—and their attacks guarantee that the press and many Democrats will hail him as a moderate.

Like any president, Bush is interested in his legacy. Even if he packs the court with Ashcrofts, Luttigs, and Coulters, he can't count on them to secure his place in history. There's no guarantee Roe v. Wade would stay overturned for long, and an activist court might drive the Republican Party back into minority status. Appointing the first Latino Supreme Court justice is a legacy no one can take away.

Bush has done the right's bidding for so long, he may not know how to quit. But remember the first rule of interest-group politics: If you can't pander to the one you love, pander to the one you're with.

Excellent analysis.

I'm still going for Gonzales. Even if his confirmation would end up helping the Republican Party in the long-run, I think he'd be much better for America than any of the other leading candidates, all of whom seem to be anti-liberal (and un-conservative) radicals set to refashion America from the bench.

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