Actually, if you read Novak's latest column, you'll find that news that it was O'Connor and not Rehnquist going first started leaking in the last day or two.

Also, my two cents is that this could be bad, especially if Rehnquist decides to stick around. As much as I disagreed with O'Connor, I appreciated her presence on the bench, as opposed to having 5 solid conservative votes. She motivated a lot of good discussion, and it may be noted that she refused to join conservatives in the 80s in overturning Roe v. Wade.

Most of the talk coming out of the White House points toward a host of conservative appellate court justices, and then there is Alberto Gonzalez. Though I can't stomach his terror stance, he is much more moderate than most of the potential nominees, and Bush does like him. Novak says conservatives are up in arms about the suggestion of Gonzalez, which might mean Dems will end up "embracing" him if he can survive the rumor mill.

We have to approve a corrupt nominee.

If Bush appoints an honest wing-nut, we will be stuck with them for 2 generations. I don't believe Bush is smart enough to appoint an honest wing-nut. I believe Bush will appoint someone as thoroughly corrupted as the last batch of Bush appointees.

If Bush puts forward a corrupt nominee, we can impeach the documentably-corrupt new Justices when the Dems re-take control of Congress.

We have to hope we re-take Congress before a case gets through the legal system in which the corrupted court can overturn Roe v. Wade. This is the only way Roe v. Wade will not get overturned.

My guess: Emilio Garza, Judge on 5th Circuit Court appointed by Bush Senior We had a woman on the bench for a quarter of a century--still have an Afro-American. Just appointed a Latino to AG.

But as has been noted in blogs as of late, recent decades has seen a shift away from appointed non-legal candidates, despite the fact that historically, many of the most influential justices were politicians. I would be interested, though, to see some politicians discussed, just because I would like to see more on the topic of how background affects judicial ability.

As for whitting down the Republican majority, that only works if the guy/or gal appointed comes from a swing state. If it is Gordon Smith, that's one thing, Dems have a good chance. But if it is someone from the Bible Belt or the South, it is likely a new Repub will just plug the hole in the dam.

Except that Bush (okay, Rove) is not retarded and will never nominate a US Senator in a vulnerable spot/from a state with a Democratic governor.

The departure of Sandra Day O'Connor from the Supreme Court will no doubt start the much anticipated war over the judicial filibuster and reproductive rights.

But the biggest long term issue may be the intent of the coming Bush judges to dramatically reduce Federal regulatory power by the narrow interpretation of the Commerce Clause. For more on this and the impact of the "Constiitution in Exile" advocates, see:

"Sharpening Their Clause: The Coming Bush Judges."

I'd agree with that sentiment, but Bush (okay, Rove) is not retarded -- they're not going to nominate a US Senator from a state with a Democratic governor or in a seat that could potentially then be vulnerable.

Man, this posting thing can be screwy.

Alworth -- I think your comments are spot-on.

I think that political "lay of the land" you describe has two consequences:

1) It proves the deal on the nuclear option was a good tactical move by Democrats. The showdown on the Senate floor would have been an "absolute victory vs. absolute loss" situation for Democrats. But after "moderates" were able to cut a deal that was "fair", employing the nuclear option seems "radical," and it is a "radical" move that would have to be taken under a much heavier spotlight. Means that there's a greater cost in terms of political capital, and a much higher likelihood of GOP defections from their caucus.

2) Also makes it less likely Bush appoints a "moderate." Think about Bush's choices with the situation you describe. Neither are good. But if we've learned one thing from this Administration, it is that given the type of choices he's facing now, they're probably going to go for it all. When these guys are faced with choices like this, they know one move: hit the gas.

I hope I'm wrong, and I hope they choose consultation and a reasonable nominee over confrontation and a bloody fight. Someone like O'Connor would be a helluva surprise to me though.

I have a feeling that it will be Cornyn as well. It just passes the sniff test (although its kinda like finding the wafting scent of vanilla in the midst of rotten salmon).

Regretfully I have no nominee guess, but find myself horrified by the philosophy of the “Constitution in Exile” movement pointed out by Jon, a movement which putative nominee Senator John Cornyn (R., Texas) has disingenuosly disavowed.

From the U. S. Supreme Court decision in Sunshine Anthracite Coal Co. v. Adkins (1940), which in part addressed the constitutionality of Congress' delegation of authority to regulate the details of interstate commerce to an administrative commission under the The Bituminous Coal Act of 1937:

“Certainly in the hands of experts the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose of the Act. To require more would be to insist on a degree of exactitude which not only lacks legal necessity but which does not comport with the requirements of the administrative process. Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility. . . But the effectiveness of both the legislative and administrative processes would become endangered if Congress were under the constitutional compulsion of filling in the details beyond the liberal prescription here. Then the burdens of minutiae would be apt to clog the administration of the law and deprive the agency of that flexibility and dispatch which are its salient virtues.”

It seems that adherents maintain that the government has no right to regulate commerce unless Congress specifies every detail of the regulatory mechanism to be used. Who could believe this would be anything but another venue to cripple the federal government's ability to protect us from the predations of big business?

You heard it here first. Orin Hatch will be appointed along with Theodore Olsen for the two vacancies.

Word is that the White House has already said they won't nominate people over 60, specifically Olsen. Of course, that could be untrue, but it is understandable if true--making your mark on the judiciary is easier when you know your appointees are unlikely to keel over for decades.

Cornyn doesn't have a chance in hell after those wacky -- and disturbing -- comments he made about violence against judges a few months back.

It proves the deal on the nuclear option was a good tactical move by Democrats. The showdown on the Senate floor would have been an "absolute victory vs. absolute loss" situation for Democrats.

Right. Instead of an absolute loss, the Senate Dems managed to block 5 out of 224 Bush judicial nominations, giving Bush the highest success rate in history. It shows how far the Democratic party has fallen that this actually counts as a "win" for our side, even a partial or tactical one.

But after "moderates" were able to cut a deal that was "fair", employing the nuclear option seems "radical," and it is a "radical" move that would have to be taken under a much heavier spotlight.

Sure. You know, given how responsive the Bush administration is to public perception and all.

[begin rant] The Beltway wing of the Democratic Party is a joke. Expecting these guys to beat the Neo/Theo cons at anything is about as sensible as rooting for the Washington Generals to beat the Globetrotters.

The Senate Dems, led by a pro-life Senator from a red state who could be knocked out of office any time the R's want to take him out (see Daschle for details), provide nothing more than token opposition on wedge issues and outright support on most economic issues (see Wyden/Cafta for details). The only group that matters less than them in DC are the House Dems.

Prediction on the SC? After a "long and arduous fight" that will take significantly less time than most judicial nominations, the Senate will approve 2 really bad nominees (after Rehnquist retires), one of whom will be slightly less offensive than a third candidate who the Senate Dems will "block". At this point, the Senate Dems will declare victory; the religious right will be in an uproar; Roe vs. Wade will be toast; and the Supreme Court will become an even bigger whore for corporate interests at the expense of the public interest, justice, and the Constitution than it already is. [end rant]

If Rove has his way it will be Alberto Gonzales. Some object that there would be some erosion of Pres. Shrub's roots, but I can just hear Rove saying, "it's not like there's not a million more issues where we're going to make their day".
It's one of the unfortunate realities of being a progressive in America, IMHO, that we have to appeal to a lot smarter people than the Reps. do.