is not going to happen. I do not believe that he is confirmable, and that’s not, I think, just wishfulness on my part. If there had been a vacancy in 2002 or 2003 and he had been nominated, I think he could have been confirmed pretty easily. But especially after the Miers nomination, it’s a non-starter.
A pretty smart Republican staffer in the Senate analyzed the politics of a confirmation fight this way. Assuming a vacancy, and the nomination of a capable conservative, the Democrats would hang together on a filibuster and the nomination would die. But if Republicans held tough and sent up another capable conservative, the Democrats wouldn’t be able to get away with it a second time. Seemed plausible.