Thursday, July 21, 2005

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.

Saturday, July 09, 2005

Chief Justice Rehnquist

I really thought Chief Justice Rehnquist was going to resign yesterday. But then columnist Bob Novak went on CNN saying he had one good source that Rehnquist was going to submit his resignation letter when President Bush returned from Europe. Matt Drudge amplified Novak's speculation and all Washington was just waiting for the final word.

This has to be kind of demeaning for Rehnquist. Not to be too crude, but I mean, when you are going to croak, you want to do so on your own terms, not when everyone is waiting for you to drop dead. I think Rehnquist wants to surprise, just to show that he will go out on his own terms, when he is good and ready.

Witness his words to a reporter on Friday when the reporter asked him if he really was going to resign: "That's for me to know, and for you to find out."

Thursday, July 07, 2005

Supreme Court vacancy

Put on your specs nodded. I blame the hours at the unspecified law firm. Consequently I can’t promise that I will post regularly until school starts again. The best way to know when I post is to download the RSS feed. Or you can send me an e-mail asking me to let you know when I post.

But for now, I must say something about the new Supreme Court vacancy. If Justice O’Connor was going to step down, I would have preferred she retired next year instead. The ensuing confirmation battle would have occurred right before the midterm elections and Republicans would have been under greater pressure not to appoint a hardcore conservative. Democrats would have scored political points with the argument that Roe v. Wade was in danger with only five votes. This worked in the past: they won the elections following a late 1980s case that chipped away at Roe and several senators suffered severe repercussions for voting to confirm Justice Thomas.

But now isn’t such a terrible time for Democrats for her to retire either. Although midterms are 16 months away instead of 4 months away, I think that if the nominee to replace her is controversial enough, it could cost the Republicans. But if they appoint someone too liberal, Christian conservatives could stay home during midterms. My mother asked if Gonzales was really Spanish for Souter. Just imagine if Chief Justice Rehnquist stepped down next summer. Then Republicans would really be caught between a rock and a hard place.

I think President Bush and Senate Republicans are all too aware of the dilemma they face. If they could get Chief Justice Rehnquist to step down now, they would have a much easier time of it. They could split the ticket, so to speak, in appointing a moderate conservative and a staunch conservative to try to make everyone happy and emerge unscathed.

In case there was any doubt, President Bush’s Social Security plan is officially dead now. No one is paying attention anymore.