Bush tees up the next Scalia

News accounts suggest the president is set to announce a very conservative replacement for Sandra Day O'Connor's Supreme Court seat.

Published October 30, 2005 7:55PM (EST)

Over at SCOTUSblog, Lyle Denniston offers a nice preview of a fight that may be imminent, as President Bush gears up to nominate a very conservative judge to replace Sandra Day O'Connor on the Supreme Court. Several news organizations are reporting that Bush has already narrowed down his decision to a shortlist of two people: Samuel Alito Jr., a judge on the 3rd Circuit, and J. Michael Luttig, who sits on the 4th Circuit. Bush is set to announce his choice either today or tomorrow, the accounts say. Both of these judges, Denniston points out, would be enormously pleasing to the right; they have long records suggesting that they fall squarely in the mold of conservative judicial heroes Justices Scalia and Thomas. But here's the interesting part: Even though Democrats don't have enough votes to defeat a nominee without resorting to a filibuster, Denniston says that the botched nomination of Harriet Miers may have given them some new ways to fight.

In particular, Denniston reminds us, ideology is back on the table. When John Roberts was up for confirmation, asking about his judicial philosophy -- not to mention his views on social issues -- was verboten. Though by all appearances and accounts he was thoroughly conservative, Roberts was fond of saying that judges shouldn't adhere to a particular philosophy, and that instead they should behave more or less robotically, settling questions of law in the same detached manner that baseball umpires call balls and strikes. That was a line the right stuck to until the Monday morning Bush gave unto the world his second SCOTUS nominee, legal counsel, longtime friend and ideological enigma Harriet Miers -- at which point the right began demanding proof that she was sufficiently conservative to serve on the court.

Now that the right has made it OK to ask about a nominee's ideological leanings, Democrats will be glad to do just that. They can "probe deeply into the jurisprudence each judge has applied on the bench in order to prepare searching questions of the nominee," Denniston says -- laying bare all of the messy things that come up in the course of a Federalist Society stalwart's tenure on a federal court. (We're talking about things like Luttig's decision to strike down part of the Violence Against Women Act, or Alito's to uphold the Pennsylvania law requiring women to ask their husbands' permission before they seek abortions -- later struck down by the Supreme Court in Planned Parenthood v. Casey.)

Dredging up all these uncomfortable details could persuade some moderate Republicans that remaking the court is not really what they want to do. At least, that's what the Democrats are hoping for. It's a long shot, certainly.

Which reminds us about something we need to do: Next time we run into Harriet Miers, we have to say how really, really bad we feel for once making fun of her hair.

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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