Taylor’s argument, basically, is that Bush is unlikely to appoint Justices of the activist Scalia/Thomas sort (don’t let anyone tell you that these guys are not judicial activists), because the overruling of Roe v. Wade is actually the Republicans’ worst nightmare. Taylor cites polls showing that most of the country would be horrified if Roe were actually overruled, and argues that the backlash at the polls would likely be swift and substantial (and Karl Rove knows it), so Bush is more likely to nominate Justices who are not on a mission to undo the last 75 years of constitutional law.
This is an interesting theory, and there may be some truth to it – but we will only know for sure if a moderate retires. For now, it is important to remember that in light of Chief Justice Rehnquist’s failing health, the Chief Justice’s seat is likely to be the first one to come open. And Rehnquist has long been on the far right of the Court (including being willing to overrule Roe). So replacing Rehnquist with a Scalia/Thomas clone doesn’t much change the balance on the Court – in fact, replacing Rehnquist with a less aggressive conservative would actually move the Court back toward the center (and you can be sure that the radical right understands this). That fact, combined with the symbolic importance of the Chief Justice’s seat, leads me to think that Bush will try to replace Rehnquist with a conservative activist, either by elevating Scalia or Thomas, or by naming someone from the outside that will make the radical right happy.
And that is exactly what the left should hope for. Why? More later….