William Kristol wrote a piece for the Weekly Standard, which appeared on their website today. (HT: How Appealing).
I often find myself agreeing with Bill Kristol, and here is no exception. In this remarkably short piece Kristol suggests that we will indeed see a resignation from the Supreme Court, but that it will be Justice O'Connor, and not Chief Justice Rehnquist, as most have speculated. While no one can say for sure whether we will see a resignation at all, Justice O'Connor has hired clerks for the 2005 term, which begins in October. Then again, so did the Chief Justice. Judge Alex Kozinski, of De Novo fame, explained [see #4] what happened to him when he was hired by Justice Douglas on the same day the Justice retired. Notwithstanding a forced retirement, due to health reasons for instance, it seems indecorous of a justice to hire for a term when they plan to retire.
Kristol speculates anyhow that "President Bush will appoint Attorney General Alberto Gonzales to replace O'Connor. Bush certainly wants to put Gonzales on the Supreme Court. Presidents usually find a way to do what they want to do." I share his hope that this will not be the case should there be a resignation.
President Bush is expending his capital at a rate that might leave him wanting in the last couple years of his term, the time when presidents normally attempt to build a legacy. Whether you're a supporter of the President or not, we can all agree that nominating Attorney General Gonzales would be a grave mistake. Kristol, I believe, has it right when he says that Bush would have a difficult time defending Gonzales to his base, who believe Gonzales isn't to be trusted on social issues (e.g. abortion, partial-birth abortion, affirmative action, etc.).
Additionally, Bush would have an equally difficult time defending Gonzales to the left. Even though Gonzales may well pass through committee to a vote merely because he is no more conservative than Justice O'Connor (if she does, in fact, retire), it's easily foreseeable that Bush would still have to expend a disproportionate amount of political capital to brave the left. Gonzales is, after all, for many, the face to the many problems this administration faces in its prosecution of the war on terror, including not in the least the treatment of enemy combatants. Selecting Gonzales would then place the President in the predicament of having to defend his choice to his base and to his political adversaries. Fighting a two front political war might well rob him of his remaining political capital. His legacy, be it what it may, will be shortchanged.
From a leading neoconservative mind, "A Gonzales nomination would...virtually forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence." President Bush is daring, but I hope not that daring.
To think, for all this speculation, we may not see a resignation this term!
UPDATE: After re-reading my post, I realize that my title advertises more than I offer in my post. I stop short of saying why AG Gonzales is a bad choice except to say that nominating him would give the president the burden of having to defend himself to both his base and his political adversaries. If you could care less about the president expending his political capital, or if you would even encourage such a thing, then the fact that the president would have to fight a two front political war wouldn't be of consequence to you. What I might've added in order to provide what I advertised is to say just that since neither side of the political spectrum is at ease with the idea of the AG serving as a justice, politically, he makes a bad choice for a nomination.