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Ramesh: As I suggested in the article, because this is speculation, you can game out the sequences any number of ways. While the Left has certainly geared up for the reverse order, they are switching gears quickly, and will make most of the same plays you mention. Thus, if Bush appoints a conservative for O’Connor’s seat, they will scream that they have been cooperative, and require a more moderate candidate. This will give Bush the opening he needs to appoint Gonzales to Chief, giving his friend the title of first Hispanic Chief Justice, and creating the “Gonzales Court.” I think this is a likely outcome, and is likely a less conservative outcome that we would have gotten if the retirement order were reversed. Now, Bush may have chosen to put Gonzales forward even in a Rehnquist-first scenario, but he would have had less cover to do so, since the Left had pretty much conceded a solid conservative for Rehnquist’s spot.

All that said, the point I was attempting to make was not that the nominations should be Rehnquist first, or O’Connor first—that question is moot. The suggestion was whether Rehnquist and O’Connor should be considered nearly simultaneously, which would (hopefully) reduce the possibility that a first conservative pick would be used as leverage to demand a less conservative “second” pick.


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