Morning Report 7/15/05Partial Berth Abortion


Rehnquist stays put. Religious right is put out. Gonzales may be put in.



The chief justice in his better days

If even briefly, the most prominent leak in D.C. isn’t the golden shower given to Bob Novak by Karl Rove but the hole in Chief Justice William Rehnquist‘s throat.

Still suffering from thyroid cancer to the extent that he’s had a tracheotomy to help him breathe, Rehnquist nonetheless shocked Capitol Hill yesterday by announcing that he isn’t leaving the Supreme Court.

For the religious right, the fetuses will now have to go back into the bottles instead of being paraded around America as campaign tools for a hard-line anti-abortion candidate.

Though 80 and enfeebled, Rehnquist delivered a blow to the Bush regime as well: Two SCOTUS vacancies would have meant a horse-trading game that probably would have resulted in a hard-liner new justice like Clarence Thomas and Nino Scalia, with a more moderate choice as the other. Forcing a hard-liner onto the court to replace Sandra O’Connor now might be more difficult.

Lyle Denniston, in a more sober analysis last night on the Supreme Court Nomination Blog, notes:

The President will not be able to engage in any kind of balancing, with two seats available to make a combination choice to satisfy various competing constituencies and political demands. This puts all of the emphasis on O’Connor’s replacement, and will likely increase the demands of his strongest political followers that he put forward a presumably reliable conservative—one less likely to avoid problems with Senate Democrats. It also could make the Senate fight more complicated, since lobbying groups who do not like the choice that Bush makes will be able to concentrate their energies.

On the other hand, gulp, Alberto Gonzales has new life as a top candidate. Most of us might see him as a fool or a hard-liner or both, but the religious right considers him way too moderate on abortion to sit on the highest court. On the other hand, Gonzales would be of great symbolic value as the first Latino on the court. Unfortunately, all of that makes him a compromise candidate that liberal senators just might have to swallow.

Handicappers can check out Gonzales’s prospects at the U.S. Supreme Court Futures Market. The brainstorm of Professor Kevin McGuire at the University of North Carolina, the “market” gives investors fake money to speculate on nominees.

As my colleague Jim Ridgeway points out in a fresh piece, a real cash bar for judgeships already exists.

Campaign fundraisers are no doubt busy trying to adjust to the surprising Rehnquist news. McGuire’s educational-only market will also have to adjust. Right now, it features separate “futures markets” on seats held by O’Connor, Rehnquist, and John Paul Stevens.

Yes, Stevens’s seat was thought to be in play, too, according to UCLA law prof Stephen Bainbridge, who wrote July 12 on

I got an email today from a reliable source opining that Justice John Paul Stevens will retire this summer if, but only if, CJ Rehnquist steps down. The theory is that Stevens will be willing to let Bush fill his slot only if there are so many spots available that Bush will feel free and/or pressure to nominate at least one moderate. If true, my guess is that the three slots would go to: Alberto Gonzales, probably as Chief, since he’s Bush’s closest judicial friend and Bush seems so eager to appoint the first Hispanic; Edith Jones (or possibly Janice Rogers Brown) so that a woman replaces O’Connor; and Michael McConnell to make both business and social conservatives happy.

Now, though, with Rehnquist staying, all bets are off. Well, those bets anyway.