Wouldn't it be nice ....

by von

... if President Bush nominated Alex Kozinski of the Ninth Circuit (aka "The Easy Rider," aka the "#1 Superhottie of the Federal Judiciary," aka "the high-flying conservative of the Ninth Circuit Court of Appeals") to the Supreme Court?  Smart, sincere, intellectually honest, decidedly non-theocratic -- obviously, pretty much everyone would have some sort of beef with him.  Which would be a kinda cool thing.

By the bye, I agree with Professor InstaPundit:  if Democrats really wanted to mess things up, they'd start floating names of conservative jurists who they'd pinky swear to down like Maker's Mark at Delilah's on punk rock Monday.  Folks with unimpeachable credentials and a moderate/independent streak.  Kozinski would have to be at the top of that list; so would Judge Posner of the Seventh Circuit (though he's getting a little long in the tooth).

Indeed, if I may offer some unsolicited (and perhaps unwelcome) advice:  take a lesson from Ali.  When you're fighting Big George Foreman, the correct response is rope-a-dope.

UPDATE:  Rilkefan and Bernard Yomtov argue -- not unpersuasively -- that I'm full of crap.  As Yomtov states (emphasis mine):

I suspect that also, and that [a] sub rosa list [of acceptable conservative canidates] has been provided to Bush sotto voce. I also think, in contrast to von, that Bush is more likely to name someone from the list if it is not publicized. If it were public he would be seen as caving in to the Democrats. This way he can make a show of moderation, if he wants to, without looking weak.

Comments

[notyou]

so would Judge Posner of the Seventh Circuit (though he's getting a little long in the tooth).

A nice plan, although I'd suggest that length of tooth should be at the top of the Democrats' list of requirements as they look for palatable conservatives to suggest. The longer the teeth, the better.

With wise choices, the Dem president will be able to stack the court in 2010 with living constitutionalists.

[rilkefan]

That's taking "advise" literally. Unfortunately, I suspect that if say Ted Kennedy swore in public to vote to confirm Kozinski to the Supreme Court if nominated (and from the handful of times I've heard Kozinski, I'd agree), that would doom the judge's chances.

Actually, I'd be surprised if there isn't such a list - sub rosa. And I'd bet that Bush has no interest in choosing from it when he can stoke his base or otherwise score political points by picking controversial judges.

[Bernard Yomtov]

Actually, I'd be surprised if there isn't such a list - sub rosa.

I suspect that also, and that the sub rosa list has been provided to Bush sotto voce. I also think, in contrast to von, that Bush is more likely to name someone from the list if it is not publicized. If it were public he would be seen as caving in to the Democrats. This way he can make a show of moderation, if he wants to, without looking weak.

[rilkefan]

"This way he can make a show of moderation, if he wants to [...]"

According to an interesting theory discussed by Mark Schmitt, Bush is not interested in widening his mandate.

[Anarch]

if Democrats really wanted to mess things up, they'd start floating names of conservative jurists who they'd pinky swear to down like Maker's Mark at Delilah's on punk rock Monday....

Colorful metaphors aside, I don't quite understand how this is supposed to "mess things up" for the Republicans or the White House. In fact, this is precisely the kind of caving towards the center that's cost the Democrats so dearly the past 8-10 years: by nominating moderate conservatives while Bush is still unabashedly promoting radicals, they're actually ceding the shift of centrality to the (potentially far) right. Bush could then disavow Owen, say, and nominate some other unacceptably conservative judge in her stead on the grounds that that new judge is a "compromise" between Owen and Kozinski. With the Democratic opposition undercut by their earlier movement, the "compromise" judge would likely be confirmed, a distinctly suboptimal outcome for the Democrats and the country. Not exactly a ringing endorsement for your plan.

To be really blunt: in a negotiation like this, the side which moves first loses. Bush has made his bed; the Democrats ought to let him lie in it when possible, and forthrightly oppose the outrages when not. Which they seem to be doing quite well.

[There's a wider point to be made here about the failures of systemic centrism in the presence of an overwhelming pressure towards a given pole, but I'm not feeling combative enough to go another round of "a pox on both their houses".]

Your advice would, however, be most excellent if it were targeted at the so-called moderate Republicans in Congress. [They'll remain "so-called" in my book until they develop enough spine to resist the suasions of the White House and the GOP leaders in Congress.] May I suggest that you take this up with Shays, Snowe et al?

[heh]

"this is precisely the kind of caving towards the center that's cost the Democrats so dearly the past 8-10 years"

interesting thought

[Anarch]

interesting thought

Thanks, but it's not original to me.

[Fledermaus]

I don't agree with some of Kozinski's ideas. But he would be a stellar addition to the Supreme Court. He's smart and a hell of a writer. I remember one case I had to read where he spend the entire opinion ranting about how stupid CA's contract law was only to rule on the other side because he had no choice.

Then there was the opinion where he hid a bunch of movie titles in the opinion. He would sail through any confirmation process.

Posner isn't quite the rockstar that Kozinski is. Plus I think he's too wedded to cost benefit analysis - it's helpful, sure, but I don't think it is applicable in all situations.

[praktike]

Here's an idea: how about Bush not nominate total lunatics like Janice Rogers Brown?

[Anarch]

Here's an idea: how about Bush not nominate total lunatics like Janice Rogers Brown?

And therein lies the failure of von's plan.

[John Thullen]

I think Mark Schmitt is on to something. I'm not big on analyzing Presidents; they are ciphers at bottom.

But when you look at Bush's life, there seems to be a certain attitude involved. He likes winning, but he especially likes winning when he can add a f--- you along with the win. Hey, I'm underestimated by you elitists (odd, given his provenance), he says to himself, so here's a kick in the short ribs to go with the loss.

He's like a ballplayer who spits in the direction of the pitcher after yanking one. The home run just wasn't enough. And, similar people are attracted to and hired by him.

Funny, he's never called me.

So this strategy as Schmitt points out is very smart, but also fills some little hole in the man.

One other thing. He believes all this stuff; he's an ideologue. He's not just a dumb manipulator. But he also finds it funny when Dems take Judge Brown up the you know what.

He's a tough guy, so to continue the baseball analogy, he needs Bob Gibson to nail him with something hard, and high, and tight.

[theEnvoy]

I think Von, and the rest will agree, that Posner is the best legal mind today. True, he's a little old, but in his 60's means he's got 20 years on the court. A reason for term limits. I like the 18 year plan.

The real reason Posner will never, ever be nominated is that he's made his position clear. He's an atheist who believes that the 9th amendment means something. He's the anti-bork of the courts. He's a great man who would be one of the all time greats on the supreme court, but he has made all of his views known, therefore he can't sneak past any congress.

The ironic part is that both the dems and the republicans would love such a comprimise character. He's a staunch defender of gay rights, but also of liberty. The perfect justice. We'll never see a man like him on the bench again. Like Von, I'd love to see a justice who loves the 14th amendment and also the 9th, but since FDR, such a thing cannot be heard.

Judge Brown is a lot like this comprimise. She is everything Posner could be, but she has one fatal weekness, she's a Jesus freak, who belives that God's law trumps the US law. That is a fatal strike in my book. Otherwise she has the right things going for her.

I ramble. It's been a while since my last OB'wings post, so let me hear it.

My spellchecker is down, so keep it easy on me, it's my worst failing.

[washerdreyer]

Yes, it would be nice for Bush to nominate Posner and/or Kozinski. And then he can give everyone a pony.

More seriously, while Posner usually self-describes as a pragmatist, I can see reasonable people arguing that he is a "judicial activist". I think he may even endorse such a label.

[dmbeaster]

What praktike said.

That's what this whole dispute is about. There would not be any dispute if Bush held to the more traditional practice of picking more centrist judges.

The right seeks extreme activists judges, and has for over 20 years. Judges who seek to get ahead have made their activism known over the last decade or so, thereby qualifying themselves under the Bush litmus test.

[hilzoy]

I agree with most of the earlier posts, on e.g. the fact that making such suggestions publicly would greatly decrease the chances of their being adopted, the fact that this all comes of Bush nominating some people who are just loopy, etc.

About Posner: am I imagining this, or did he at one point come out in favor of being able to sell one's kids (as an extension of cost-benefit analysis and market norms into unlikely places)?

[LizardBreath]

He wrote something about a market in adoptable babies -- price premium for white and healthy, discounts for minority or disabled -- in a very 'thought experiment', 'just a way for the power of markets to make the process of finding adoptive parents more efficient' kind of way. (Those aren't real quotes, just my memory of his tone.)

[Bernard Yomtov]

von,

I wasn't really saying you were full of crap - this time at least :)

I think we're looking at different objectives. If the Democrats want to embarass the President (assuming such a thing is possible), make trouble, create controversy, etc., then your idea is fine. It should be done by individual Senators, though, rather than as a sort of official Democratic list.

If the objective is to try to actually get a somewhat sane person appointed (again assuming such a thing is possible) then the quiet approach seems better.

[toby]

"this is precisely the kind of caving towards the center that's cost the Democrats so dearly the past 8-10 years"

If the Democrats have been caving towards the center for the past 8-10 years what have the Republicans been doing over the same period? Caving toward the right? Doesn’t work like that. Caving toward the right – lets say meeting in the middle – has no bearing on the Democratic party’s lack of leadership in the post Clinton years. That’s like saying increased ice cream sales are responsible for increased incidence of murder. Positively correlated yes, but that’s it.

I find it hard to believe that the Republican party has consciously adopted the strategy of moving ever more to the right in an effort to lure Dems into agreeing with right of center policy. A move like that will ultimately upset the moderate republican base - unless the current social atmosphere is creating a movement toward evangelical libertarians.

[Anarch]

If the Democrats have been caving towards the center for the past 8-10 years what have the Republicans been doing over the same period? Caving toward the right?

In essence, yes: the Congressional Republicans have indeed lurched rightwards, as has much of the rank and file. I'd even argue that "caving" is the right word, although that's a more tendentious claim.

Caving toward the right – lets say meeting in the middle –

Let's not, because that's precisely the opposite of the point I'm trying to make. See below.

has no bearing on the Democratic party’s lack of leadership in the post Clinton years.

I don't buy that at all; I think there is a marked causative relation beyond mere correlative effects, though it's more complicated than a simple A->B kind of affair.

I find it hard to believe that the Republican party has consciously adopted the strategy of moving ever more to the right in an effort to lure Dems into agreeing with right of center policy.

Whether consciously or not, that's what has actually happened: the Democrats have, by and large -- and yes, there will always be individual exceptions -- pursued ever-more "centrist" policies and the Republicans have in turn retreated ever-more rightward. [The presidential campaigns of 2000 and 2004 are sorry testaments to the would-be centrism of the Democrats; you've only to look at the House and Senate nowadays to see the GOP's shift to the right.] "Centrist" thus gets defined further and further right which, pace the media's insipid and downright negligent insistence on "balance" in lieu of "objectivity", just enables this vicious cycle.

As to origins, I suspect it's largely the confluence of two or three separate things, none of which are "conscious" in the manner of which you spoke: first, the lack of strong Democratic leadership (even under Clinton, tbh) to create and then hold a party line; second, the highly effective right-wing attacks on and co-options of the media (viz. Limbaugh, FOX News, et al.) which have eroded any normative standards of fact, objectivity, or bias; third, and most controversially, the dearth of moderate (or even legitimately conservative) Republican leadership resulting in the party being dragged wholesale into the orbit of the far right whose desire for such movement is not just unsatiated but, I suspect, insatiable.

As for alienating the moderate base... well, yes, that's not just what will ultimately happen, it's what's happening right now. Talk to Slarti about the nuclear option, for instance, or any of a number of my moderate Republican friends who are increasingly disenchanted with the way their (sometimes former) party is going. Hell, look at what's happened to Specter, Shays, Chafee, and the like, or the subtle schisms between the religious radicals and the moderates brought out in, say, the Schiavo case. As I've said repeatedly, we're at the tail end of one of the greatest political realignments in American history, comparable only to the abolitionist movement in the mid-19th century. The Democrats have largely finished their transition, I think, having entered their new stable state with the kind of grace and panache I've come to expect of my party; but the GOP is still in the throes of the battle for its redefinition, and I haven't the foggiest what's going to happen.

I'm not saying that the Republican party's on the verge of disintegration, although that's certainly a possibility. [Mind you, I don't think anyone -- even those involved -- knows enough to say.] I think there are abundant stress fractures there for anyone too see, however, and the great open question before us this decade is how those fractures will be expressed or resolved.

[Dantheman]

Norman Ornstein's take on the nuclear option, naming names of those who should know better.

[toby]

I still disagree with you that the Democratic Party's centrist position has resulted in the party's lack of leadership. It’s not like the liberal voting public has lost faith in the party's message.

The faces representing the Dems message in the last two presidential elections have been: a) extremely boring & arrogant, or b) aristocratic. Candidates with those personality traits are not going to inspire the respect of the broader, undecided public voting based, in my opinion, more on perceived personal popularity than on the candidates’ position on "the issues."

The Dems just don’t seem to have any charismatic leaders in the post Clinton era. And that problem by and large stems from the fact that Clinton was such an overwhelming personality that it was unnecessary for others within the party to reach for the spot light. And when it was finally necessary for someone within the party to step up everyone was too busy trying distance themselves from Clinton’s definition of “is” so the XO was given the conn just before the party heard the high speed screw, and realized that a torpedo was in the water.

Meanwhile, on the other side of the aisle, the Republicans had 8 years of experience in the art of cultivating personalities with broader appeal. How they decided on Bush over any number of more viable candidates is beyond me. Sadly I don’t see Dems using the past 8 years to their advantage. They are relying on the developing chasm within the Republican Party to help elect the next liberal president. Not the best strategy in the word. So it’s not the party’s politics that are at issue, it’s been the party’s past two uncharismatic personalities which were unelectable.

And as the DM I shall give +2 in charisma to the Democratic Party prior to the next election (cause Hillary is going to need it).