Supreme Speculation

Well, Bill Kristol has either got the scoop of the year or he's just blathering about the Supreme Court like everyone else.

It's an interesting calm-before-the-storm moment in Washington right now. Most seasoned observers (anyone who's been here more than two weeks) believe that next week we'll be in the middle of a knock-down, drag-out battle over the next high court justice. The media are gearing up with inside-dope pieces, even though no one knows the inside dope right now, the advocacy groups are tuning up their machines, and the legal analysts are gaming the impact of different lineups.

The expectation is that the ailing William Rehnquist will make the announcement after the court's term ends next week, but no one really knows that, either. So a story that would dominate the political landscape all summer, and perhaps even compete with the latest missing white woman story (though Aruba's weather is nicer than D.C.'s), is on the verge of happening or not happening.

Along comes the editor of the Weekly Standard, a former Dan Quayle chief of staff, a very well-connected fellow, to stir the pot with this piece. There will be a vacancy, he says, but not the one you think. And he prefaces his posting with a caveat that many columnists and bloggers should probably emulate:

"Warning: THIS IS SPECULATION. Obviously, I think it's somewhat well-informed speculation, or else I wouldn't be writing this. But it is speculation.

"(1) There will be a Supreme Court resignation within the next week. But it will be Justice [Sandra Day] O'Connor, not Chief Justice Rehnquist. There are several tea-leaf-like suggestions that O'Connor may be stepping down, including the fact that she has apparently arranged to spend much more time in Arizona beginning this fall. There are also recent intimations that Chief Justice Rehnquist may not resign. This would be consistent with Justice O'Connor having confided her plan to step down to the chief awhile ago. Rehnquist probably believes that it wouldn't be good for the Court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed.

"(2) President Bush will appoint Attorney General Alberto Gonzales to replace O'Connor. Bush certainly wants to put Gonzales on the Supreme Court. Presidents usually find a way to do what they want to do.

"And his aides will have an argument to make to conservatives (like me) who would be unhappy with a Gonzales pick: Bush would not, after all, be replacing a conservative stalwart like Rehnquist with Gonzales. Gonzales would be taking O'Connor's seat, and Gonzales is likely to be as conservative as, or even more conservative than, O'Connor . . .

"A Gonzales nomination would, in my view, virtually forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence. But I now think it is more likely than not to happen."

Conservative bloggers are appalled at the prospect, including John Hawkins at RightWing News:

"Whether Bush likes him or not, it would be a huge mistake to nominate someone like Alberto Gonzales who's so moderate that a Gonzales for O'Connor swap would be considered by the base to be a wash.

"Not only would a Gonzales appointment so soon after the 'deal of 7' debacle unleash a flood of conservative anger at Bush unlike anything he has seen in his presidency, it could create some very sticky situations for Republican Senators running in 2006 because it's entirely possible a Gonzales nomination could be defeated. The Democrats would likely vote en masse against Gonzales and Republicans would likely face a huge lobbying effort by conservative groups opposed to a Gonzales nomination."