My word on the vacancy

I consider myself a cynical optimist. The Dancer disagrees, I acknowledge, but that's just how I see it.

What is that, you ask?

Simply put, I expect the worst to happen, for people to be nasty to each other, for evil to triumph. But if it does, I generally see the good in whatever happens. This means I'm usually on the bandwagon with fatalist, "this will not work" kind of talk, but then I sort of shrug my shoulders and say, "let's go for it anyway!"

So naturally when I heard about O'Connor's pending retirement, I was quite unhappy. I consider myself fairly liberal, in case you didn't get that already. I, like many, figured that a Rehnquist retirement wouldn't be too bad because he's already ultra-conservative, so how bad could it get? I was most worried about Bush appointing someone I couldn't respect, like Scalia. I don't agree with Rehnquist, but I can at least respect his intellectual honesty far more than someone like Scalia.

Even so, I've heard a lot of groups 'mobilizing,' already talking about sending letters to congresspersons about whoever is nominated. I think that's a bit premature at this point. I say lets just wait and see. If you want to mobilize, do it quietly, but lets not panic.

Like many liberals, however, I worry about an O'Connor vacancy would fundamentally change the composition of the court. Replacing both her and Rehnquist with mini-Scalias would have unfortunate consequences for the country. I had thought that O'Connor would do what she could to wait out Bush to see if someone more moderate would follow. I thought she would see the danger of letting such an extremist shape the court. (I think she would feel the same about someone as liberal as Bush is conservative.) So I was surprised.

But maybe this could be a blessing. There's already been some speculation that he doesn't plan on retiring this term, or perhaps that this may have altered any such plans.

What if that was somewhat by design? What if he was still deciding and this would tip him into staying longer? The order of retirement, I think, makes a big difference. If Rehnquist left, I don't think the fight over his successor would be as fierce. Sure he's the Chief, but overall I think Democrats would let it go somewhat. An O'Connor successor, however, would be fought tooth and nail. And I think that is the point. Both sides would have to spend a lot of political capitol in such a fight. In today's climate, with a plodding war and a recently-failed major social security initiative, Bush's capitol is not likely to refill as quickly.

I think the end result will be that there will be a bloody confirmation process for O'Connor's replacement, but in the end Bush will be able to get in more or less who he wants. He'll be weakened, though, and he'll have to make more compromises for his next nomination, someone more moderate, someone like O'Connor. The end result will be a return to the status quo, more or less.

[Update: Jack Balkin (who is much smarter than I am) also believes that an O'Connor vacancy will be hard-fought, though the rest of my speculations remain unsupported. Also, Mark Graber believes that the democratic focus should be on the mid-term elections. I think the idea has some merit in the PR value, but it is still frightening to think what the Court might look like.]