In Dicta

Saturday, July 02, 2005

Associate Justice Priscilla Owen?

At the Supreme Court Nomination Blog, Tom Goldstein has a must-read article which begins:

"My best prediction for the President's nominee to replace Sandra Day O'Connor is Priscilla Owen. Here is my thinking.

First, I believe the nominee will be a woman. I think that, for reasons of demographic politics, the White House will view it as preferable, but not absolutely necessary, that Justice O'Connor be succeeded by a woman. But with the very strong prospect that the Chief Justice will retire during President Bush's tenure and provide a second nomination opportunity, the White House is all but certain to conclude that at least one of the two nominees must be a woman.

Faced with the choice of nominating a woman now or later, I think that the President will choose now. As I just noted, the politics of replacing O'Connor with another woman are better. Equally significant, although I obviously don't know whether the President would name Attorney Generally Alberto Gonzales to replace the Chief Justice, I feel confident that he will want at the least to preserve that possibility. The reasons don't need to be rehearsed here, but it is well known that Gonzales has a close personal relationship with the President, who is very loyal and admiring of the Attorney General. (Incidentally, conservative opponents of Gonzales as a consequence have a very strong incentive to press for male candidates now to effectively preclude a Gonzales nomination later.)

Of course, the President could name Gonzales to replace Justice O'Connor. The second nominee could then be a woman. I view that as less likely, however. It seems reasonable to believe that the President would prefer for personal and political reasons to name a Hispanic as the Chief Justice of the United States. In addition, it is obvious that social conservatives would view a Gonzales nomination to a slot on the Court that presents the genuine opportunity to move American law considerably to the right as a betrayal."

Continue reading.


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