Handicapping the possible Supreme Court nominees

As I noted in the previous post, the Washington Post has profiles on some of O'Connor's possible successors. Slate also has profiles with even more information. This post will refer to those profiles without setting all the information therein, so please read the profiles by using the links.

Overview of what Bush wants

• Bush wants a conservative.

More specifically, Bush wants a justice who is conservative on social and religious issues (gay marriage, abortion, Ten Commandments displays, etc.).

• Bush wants a result-oriented, activist judge.

Contrary to what he or anybody else might say, Bush wants an activist judge, for he wants a Supreme Court appointee to carry out the winger agenda, meaning he wants a result-oriented judge. "Result-oriented" means a judge that determines ahead of time what result is to be reached and then manipulates circumstances to make sure that result is in fact reached. In other words, the judge will ignore any facts, rules, or laws that run counter to the predetermined result. That, my friends is an activist judge.

• Bush wants someone he can control.

This is true of pretty much any appointee to any position. In a Preview of a post about the Bush agenda, I named five recent Bush appointees (four of whom were part of his first term administration) and noted that "That means that all five of the people named herein owe their positions to George W. Bush. In other words, they can all be controlled." To put it differently, Bush likes to put people in his administration who then owe him. Independent thinkers need not apply.

• Bush wants a "first."

Bush is big on making appointments that are "firsts." Condi Rice is the prime example--first woman to be National Security Adviser, first minority to be Secretary of State. Alberto Gonzales is the first Hispanic Attorney General. One of the objectives in appointing "firsts" is to deflect criticism of the appointee. Any criticism can be marginalized by shifting the focus from the substantive concerns to "but appointee X would be the first _______, and your criticism shows you are elitist or discriminatory," or some other bullshit. I will add that the next best thing to a "first" is a "replacement."

• Bush wants someone who will be on the Court for an extended time.

Bush wants as part of his legacy a substantially changed Supreme Court. In that way his influence will be felt for years after he leaves office. That means a younger--as opposed to older--appointee will likely be favored.

And the list of contestants is...

Here are the possible appointees profiled by Slate and the Washington Post:

• Emilio M. Garza, 57, former U.S. District Court judge, judge on the 5th Circuit Court of Appeals since 1991.
• Alberto Gonzales, 49, former Texas Supreme Court Justice, current U.S. Attorney General.
• John Cornyn, 53, former Texas Supreme Court Justice and Texas Attorney General, current U.S. Senator for Texas.
• J. Michael Luttig, 51, former clerk for Scalia (on D.C. Circuit Court of Appeals) and Chief Justice Burger, judge on 4th Circuit Court of Appeals since 1991.
• Edith Brown Clement, 57, former U.S. District Court judge, judge on 5th Circuit Court of Appeals since 2001 (appointed by Bush).
• Samuel A. Alito, Jr., 55, judge on the 3rd Circuit Court of Appeals since 1990.
• Michael W. McConnell, 50, former clerk for Justice William Brennan, former law professor, judge on 10th Circuit Court of Appeals since 2002 (appointed by Bush).
• John G. Roberts, 50, former clerk for Chief Justice Rehnquist, judge on D.C. Circuit Court of Appeals since 2003 (appointed by Bush).
• Theodore B. Olson, 64, former U.S. Solicitor General, represented Bush in Bush v. Gore--the case that put Bush in the White House.
• Larry D. Thompson, 59, former deputy Attorney General--the No. 2 person at the Justice Department--for much of Bush's first term, currently a senior vice president and general counsel for PepsiCo.
• J. Harvie Wilkinson, 61, former clerk for Justice Lewis Powell, former law professor, former No. 2 official in the Justice Department's Civil Rights Office from 1982-1983, judge on the 4th Circuit Court of Appeals since 1984.

As I said, the Slate and Washington Post articles contain a great deal more information about all of these people. Many of my comments below will not make much sense unless you read those articles.

Overview of analysis

What follows is not an exhaustive analysis. Based on all the circumstances, good arguments could be in favor of all of the possible nominees. I am not going to do that. Instead, I am going to eliminate from my list those that do not meet what I consider to be the most important. Here is the rank of those qualifications:

1) Bush wants someone he can control.
2) Bush wants a result-oriented, activist judge.
3) Bush wants a "first."
4) Bush wants someone who will be on the Court for an extended time.
5) Bush wants a conservative.

I will eliminate candidates as I go through the above qualifications. That means that I generally will not discuss other factors that favor those candidates. Thus, my analysis will not be exhaustive.

Those who cannot be sufficiently controlled because they have no ties to Bush

Three candidates have no ties to Bush in that they are not from Texas, were not appointed by Bush to any position, and have not been part of a Bush administration: Luttig, Alito, and Wilkinson.

Those with ties to Bush that cannot be sufficiently controlled

Garza is from Texas, but he was appointed to the federal bench by Bush's father.

Olson certainly has close ties to Bush, but Olson does not owe Bush anything. Indeed, Bush owes everything to Olson.

McConnell was appointed to his current post by Bush, but McConnell is too much of wild card and free thinker to be controlled.

Those with ties to Bush who might be sufficiently controlled

Clement was appointed to the 5th Circuit by Bush, and Roberts was appointed by Bush to the D.C. Circuit. However, they have no other ties to Bush and no ties to Texas.

Thompson's only government position came through Bush, so perhaps he could be controlled by Bush. However, Thompson has never been a judge at any level, meaning there is no way he stands a prayer of getting on the highest court in the nation.

That leaves Cornyn and Gonzales. Cornyn was a state district judge for six years and on the Texas Supreme Court for seven. He was elected to both posts, as he was to Texas Attorney General, meaning he owes nothing to Bush for his state positions. Likewise, he was elected on his own to the Senate. Given my previous analysis, these facts would indicate that Cornyn could not be controlled by Bush. However, Cornyn has changed over the years. As a Texas Supreme Court Justice, he went from really trying to follow and apply the law to trying to implement the Republican agenda. He did the same as Attorney General, particularly in his role on state legislative redistricting. Since joining the Senate, he has been one of Bush's biggest supporters (particularly regarding judicial nominees). Cornyn is very ambitious, and if he has to toe the party line to get what he wants, he will. And that means he is capable of being controlled by Bush. Also, Cornyn has shown strong loyalty to Bush, and Bush is very big on rewarding such loyalty (which is another way to exert control).

However, Gonzales is far more likely to be controlled by Bush. As I explained in Example #1 of the Bush Agenda, Gonzales owes his entire political career to Bush. Moreover, Gonzales outscores Cornyn on the loyalty scale.

Thus, for me, Gonzales has the edge on the control factor, with Cornyn right behind.

Who will be result-oriented and activist?

Cornyn was turning towards being such a judge toward the end of his service on the Texas Supreme Court, and given his unwavering support of Bush as a Senator, Cornyn could very well be result-oriented and activist.

However, there is no doubt in my mind that Gonzales would be result-oriented and activist. His role in the Partiot Act and the prisoner memos establishes that.

Although I feel the control factor is far and away the most important, this factor is also very important, so I will discuss some of the other candidates. McConnell is a highly respected (even by liberals) academic, meaning he is actually interested in the law rather than just accomplishing an agenda regardless of what the law says. Any judge who is result-oriented and activist cannot have any centrist qualities, which leaves out Wilkinson, whose mentor and role model was Lewis Powell (who is my favorite Supreme Court Justice). Garza, Luttig, and Alito seem to have been consistent in their philosphies over the years, and at this point they do not seem to be result-oriented. I have yet to see enough about Clement to know whether she is or could be result-oriented. The same goes for Roberts, Olson, and Thompson.

I must say that it is possible for someone to suddenly become result-oriented and activist. If one can be controlled, past history could be irrelevant. Also, once a judge makes it to the Supremes, he or she does not have to answer to anybody, and that lack of restraint could unleash a person's result-oriented side to come out.

Who would be a "first"?

Garza and Gonzales would be the true "firsts" as the first Hispanic on the Supreme Court. Gonzales is way ahead on the first two factors and has a very close relationship with Bush. Advantage Gonzales.

The next best thing to a "first" would be a "replacement," and Clement would do nicely as a replacement for a female justice, but that would not be as good as a "first," and Clement does not have the close ties to Bush that Gonzales has.

Who would serve for an extended time?

Obviously, the age factor comes into play here. Wilkinson and Olson are both over 60, so they're out. Thompson is 59, and Garza and Clement are 57. I think those three are out.

Alito is 55. He is on the borderline.

Of those remaining, Cornyn is the oldest at 53, and Gonzales is the youngest at 49. Again, advantage Gonzales.

Who is the most conservative?

Who cares? Truly, this is the least important factor. If someone is conservative, but does not believe in judicial activism, he or she will not meet Bush's desires. If someone is conservative, but cannot be controlled, he or she might base decisions on principle rather than on the political agenda. On the other hand, if someone can be controlled and believes in result-oriented judicial activism, philosophy does not matter.

In many ways, Bush would be well advised not to appoint someone is a real winger on social issues in order to minimize opposition from the Democrats. However, Bush thinks he is bulletproof, and he might receive so much pressure from various winger groups that he will appoint some extremist.

Final Analysis

My analysis points toward Gonzales and then Cornyn. Of those two, I could live with Cornyn. He at one time was an outstanding judge, and he actually did some really good things as Texas Attorney General. There is a chance he could be like he once was. Cornyn would be a tough target for the opposition.

However, Bush has continually done increasingly contentious things in his appointments--such as Priscilla Owen, Wolfowitless, and John Bolton. Given that Gonzales best meets all of the criteria discussed above, my guess is that--in spite of the controversy and opposition it would produce--of all the people listed in Slate and the Washington Post, Gonzales would get the nod.

Still, I think there is somebody else out there that meets all of the criteria as well...and that is Priscilla Owen. Given Bush's penchant for doing the truly incredible, I am going to stick with my original call that unless Rehnquist retired first, Bush would try to fill the first Supreme Court vacancy with Priscilla Owen.

Perhaps I will explain this further in a later post.