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Realistic options?

I disagree with Professor Krauss; I think a McConnell nomination cuts the Gordian knot:

  • There's no question of qualifications.
  • There's no question of cronyism: see Two-and-a-Half Cheers for Bush v. Gore, 68 U. Chi. L. Rev. 659 (2001).
  • There's no question of a conservative split: "business" conservatives would like McConnell; religious conservatives would like him; the elitist/movement conservatives clearly like him.
  • How can the Democrats filibuster a nominee they approved just three years ago by voice vote? (I don't see any of the "Gang of 14" defecting.) How can liberal law professors retract their support given the petition to give him the seat? (Yes, it's possible to craft an intellectually honest argument why one would support McConnell for the Tenth Circuit and not for the Supreme Court, but, even assuming defectors from the petition do so, is it possible to make that argument in a manner that appeals to more than just the base?)
  • So the PFAW and Senator Kennedy would oppose him. A battle like that strengthens Bush and helps him rebuild bridges with his base, rather than weakens him.

The counterargument? McConnell is a white male. How much weight does that really carry? It didn't affect the Roberts nomination—and McConnell is Roberts-plus, with a sterling academic career in addition to a sterling appellate record. Is any swing senator going to oppose McConnell on the grounds of his gender or race? Does the quota matter to any significant number of citizens who'd support a Hispanic version of McConnell, but not the white version?

Now, it's entirely possible that it's important to Bush that he nominate a woman or a Hispanic, and that factor outweighs the political advantages McConnell presents. A Jones or Batchelder or Corrigan (and maybe a Boggs, who is half-Cuban) would be a good justice and gives Bush the diversity points and hits many (though not all) of McConnell's advantages. But that doesn't make McConnell an unrealistic option, as opposed to an option Bush may miss the opportunity to make. Hugh Hewitt makes a similar point.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.