Demagogue

One of the games we judicial nerds play from time to time is guessing who's on the "short list" for the next Supreme Court vacancy. The reason I call it a game is that the various speculation that you read and hear is usually uninformed, and anyway who knows what the political exigencies will be when the next appointment is made. I remember that after Clinton appointed Ruth Bader Ginsburg, the "smart money" the next time around said that Stephen Breyer was no longer in the running because he had "flunked lunch" (i.e., failed to impress Clinton during their personal meeting) when he had been considered for the vacancy that went to Ginsburg.

Of course, with the Chief Justice gravely ill and not participating in most of the Court's cases this Term, speculation is bound to increase. The latest thing I've seen, for what it's worth, named John Roberts of the D.C. Circuit as a potential nominee, saying his supporters think he combines the "stealth" quality of David Souter with the ideological reliability of Clarence Thomas. I have considerable professional admiration for Roberts, who was an excellent appellate lawyer before Dubya put him on the D.C. Circuit. But I think the Roberts advocates are barking up the wrong tree. Here's who I think Bush should appoint:

Karl Rove.

So he's not a lawyer. Show me where in the Constitution it says that the Chief Justice has to be licensed to practice law. Anyway, Bush clearly values loyalty and ideological purity over competence in his executive appointments, so why not apply the same principle to the Court? Rove is a genius at whipping up the base over hot-button judicial decisions on stuff like abortion and marriage equality, so he'd be a big hit with the Christian conservatives who are demanding tribute from Bush for having turned out in November. And he's savvy and connected enough to rule the "right" way--quietly--on issues that matter to the money side of the GOP.

Would the Dems try to stop him? Well, consider the worst-case outcome from Bush's point of view: Rove is filibustered, generating a lot higher-profile chance to paint the Dems as obstructionist than Bush has been getting out of Court of Appeals filibusters; then, after trying for a month or two to get Rove through, Bush withdraws the nomination (more in sorrow than anger, of course) and nominates a genuine right-wing judge in his place; he essentially dares the Dems to filibuster two nominees in a row while an understaffed Supreme Court labors through its docket.

You think I'm kidding about this? Well, maybe. But sometimes I wonder if there's anything these guys won't do.