The price of a red herring
President Bush's nomination of Judge John Roberts to the Supreme Court came as a surprise to court watchers. First President Bush was going to nominate Alberto Gonzales, then it was going to be a woman, and the morning before the announcement, everyone thought it was going to be Judge Edith Clement.
What has really amazed me about the process is how completely by surprise this summer's developments have caught everyone. I don't think anyone expected Justice O'Connor to retire. Everyone thought Justice Rehnquist would retire, and the speculation had become a death watch before he squelched the rumors. And few expected President Bush to name Justice Roberts. I know I didn't. I thought he would name a woman or a minority or else go for a hardcore conservative like Judge Michael Luttig.
To give an example how completely unpredictable this process has been, there is a website called TradeSports for betting on events of every kind, including who President Bush would appoint to the Court. The idea is that the betting site will reveal the "truth" because people "in the know" will bet up the price of the person to be appointed. The site, as I understand it, returned $100 if your choice was actually nominated. People were so sure it was going to be Clement that her "stock" traded in the $70 range the morning of the Roberts announcement. The highest I saw it trade at was $77. Another woman judge, Edith Jones, traded in the $20 range. I don't recall what Roberts traded at earlier that day, but it must not have been more than $1 or $2 a share, if not for pennies a share. (Now that the betting over who President Bush would nominate is over, there is betting over whether Roberts will be confirmed. Last I checked, his confirmation was trading at $89 a share.)
Why did Clement's stock go so high the morning of the Roberts announcement? The first that I heard it was "going to be her" was that morning. The previous day, who it would be had been anyone's guess. Because people were so sure it was Clement and for so long (the whole morning and the whole afternoon), I'm convinced that the Bush Administration put out a false leak to detract from Roberts while President Bush prepared to make the announcement that evening. It worked. The false rumor bought time for the administration to allow Roberts to make a good first impression and President Bush got the last laugh over the media, a day after personally thanking a reporter for telling him where in the nomination process President Bush was at the time.
I can only suppose that Judge Clement, being a good sport, agreed to go along with the ruse. At least she revealed to us the price of a red herring: $77/pound.