Lukey’s theory just doesn’t work. First, consider a basic fact about Bush’s Republican "base." It’s no secret that religious conservatives are a big part of Bush’s political success. They understand that they can’t get everything they’d like from someone like Bush who pretends to be a moderate conservative, but the one thing they care about more than almost anything else is the federal courts, particularly the Supreme Court. There, they expect Bush to listen to them (and by invoking Scalia and Thomas as his "ideal" judges, he has effectively told them that he will).
In light of that, let’s consider how the "base" would feel about Kennedy or O’Connor being elevated to Chief. Kennedy authored the recent opinion declaring anti-sodomy laws unconstitutional. O’Connor authored the opinion upholding the University of Michigan Law School’s affirmative action program, and she (along with Kennedy) has declined numerous invitations to overrule Roe v. Wade. Both of them are therefore viewed by the hard right as "betrayers" of President Reagan (who named them to the Court) and of the conservative cause, and as "catastrophic" appointments. Bush needs his political "base" to advance his very ambitious second-term agenda, yet the religious right is already grumbling loudly about Bush’s perceived backing-off of his commitment to an anti-gay marriage constitutional amendment. Nominating either Kennedy or O’Connor as Chief would almost surely lead to an explosion from the right that would leave Bush’s and Karl Rove’s ears ringing in a most unpleasant way. (In addition, at age 74, O’Connor can’t promise Bush the long reign that he undoubtedly wants his Chief Justice to have.) It ain’t gonna happen.
Second, I doubt that the Dems would be so stupid as to be lulled into complacence by elevating a "moderate" associate justice to the Chief’s chair. They understand (I hope) that the Chief has only one vote, and that the bigger issue is not who’s in which seat, but rather who are the new judges appointed to the Court. So I just don’t see that naming someone like Kennedy or O’Connor as Chief makes it any easier (or harder, for that matter) to fill the vacant seat with a conservative. Moreover, Lukey seems to think that any conservative appointment to replace Rehnquist will generate a filibuster, but she ignores the fact that Rehnquist is so conservative that regardless of who replaces him, the balance on the Court won’t change much. If the Dems are clever about spending their capital, they’ll ask some tough questions of a conservative replacement for Rehnquist but not take any serious steps (like a filibuster) to block the nomination. The real battle that could change the balance of the Court comes if someone from the center of the Court decides to step down. That is the time for the heavy artillery.
Lukey is right about one thing — the next Chief probably won’t be Scalia or Thomas — but for the wrong reasons. I’ve already argued here that it wouldn’t be worth it for Bush to try to elevate Thomas or Scalia because both of them would provoke a nasty confirmation battle, yet neither of them would be an effective Chief. But the way for Bush to avoid that problem isn’t to nominate a "moderate conservative" to be Chief, thereby alienating your base. It’s to nominate a staunch conservative from the outside, preferably one who can nonetheless get some lefties to back the nomination. One such person is Tenth Circuit Judge Michael McConnell, as I’ve discussed here; undoubtedly there are others.
In the post-Bork era, every confirmation battle costs the President some political capital. So why burn capital on two battles if you can accomplish everything you want in one? If and when Rehnquist retires, look for a single nomination of a staunch conservative from outside the Court to be Chief Justice.
