by Matt Barr

Since we have til Tuesday

supposedly, I'll make a prediction I wasn't going to if a Court vacancy was more imminent, say, this week. The nominee does not appear on any of the circulated "short lists" (like this one or this one, or even this one). I may be totally off base, but here's why I think so.

It's no secret the confirmation battle for the next Supreme Court vacancy is going to be a 15-round slugfest. "Confirmability" will be of the utmost importance (which -- a confirmability advantage -- is why I suggested that Ted Olson would be the nominee for the first Associate Justice vacancy).

In a confirmation fight, where you are the nominator and advocate for the confirmation, you can't start from square one with as much public relations ammunition as the confirmation opponent. You can nominate John Bolton for U.N., for example, with a symphony about what a great guy he is, but one allegation of chasing someone around an office trumps anything the pro-confirmation side could have started with. In that sense, the confirmation fight will be instigated by the Democrats, and the administration will have to react/retaliate (whatever you prefer).

Opposition research on everyone who appears on a widely-disseminated "short list" has already been performed, thoroughly, many times over by many different organizations, official and otherwise. The only way to start the confirmation fight with the advantage if you're the administration is to surprise your opponents with a nomination they don't have an immediate answer for. Thereby you may trick someone into being equivocal, or even saying something nice, before the talking points arrive via fax.

Now, there are many more important qualities a nominee for the Supreme Court should have than anonymity prior to nomination, and I want the best jurist to get the job as much as anybody, but I think the confirmation fight is going to be so intense and potentially protracted that maneuvers like this will be factored in.

I am not, by the way, suggesting that the administration gets a look at published "short lists" and crosses the names off; to the contrary, I think most if not all people on the "short lists" were put there by administration sources for the purpose of misdirection.

(This ought to get Luttig nominated.)

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