The Weird Politics Before the Rehnquist Retirement:
Is it just me, or has the news relating to the courts and the legal system been a bit weird recently? The big stories in the past few weeks have been filibusters in the Senate, Justice Sunday, the alleged Constitution-in-Exile movement, and Tom DeLay's criticism of Justice Kennedy. All of these stories have something in common, I think. They are mostly proxies for the political struggle to confirm the Bush Administration's choice to replace the ailing Chief Justice Rehnquist.

  Of course, much of this is under the radar screen. The Chief hasn't even announced his retirement yet, so it seems a bit strange to be waging the battle for his replacement. But the battle clearly has begun: more and more news stories about the law and the courts are being triggered by one side or the other jockeying for political advantage. The goal for both sides seems to be to create a political environment designed to influence the swing votes in the Senate. When Rehnquist retires, Bush's nominee to replace him will face a tough time in the Senate. Lots of people are figuring that anything they can to do to fire up the base or shift the political environment to help their side might just make the difference.

  Of course, it's hard to do this on the merits. We don't even know who the nominee will be, so we don't yet have a human story to tell and a record to scrutinize. And most people don't know or care about the details of what the courts do, so an advertising campaign on Eleventh Amendment law or the original meaning of the Fourteenth Amendment seems unlikely to shift the political ground. In this environment, demonizing the worldview of your opponents is key. The other side has to be more than just wrong; the other side needs to be sneaky, suspect, and downright dangerous.

  The most popular strategy on both sides seems to be to take some possible negative effect of your opponent's conduct or position, imagine a very extreme position of it, and then accuse your opponent of intentionally trying to bring that about. You end up with a very weird debate: if you believe all the accusations, you would think that the key question is whether the anti-religious bigots in the Senate will confirm nominees who want to restore the Constitution-in-Exile. After awhile, you can't help but think that no one on either side fully believes what they are so emphatically saying.

  What's the answer? I don't think there is one, except perhaps to wait it out. The political stakes are high, and political actors will do what they think they need to do to help out their side. In the meantime, if you're watching TV and you hear someone say something about the courts that you think is simply absurd, you can probably chalk it up to the weird politics before the Rehnquist retirement.

  Any thoughts? I have enabled comments. As always, civil and respectful comments only.