More on abortion

We're in Day Five of the Rehnquist resignation watch, ever since rumors of a Rehnquist resignation started to swirl Friday, while Chief Justice Rehnquist kept on refusing to validate them by actually resigning. As Josh Marshall has suggested, it's in the Democrats' interest for Rehnquist to resign now. If Bush gets one nomination now, he'll likely pick a hard-liner (because that's who he'll want). The Democrats will filibuster, the Republicans will invoke the nuclear option, and Bush will get his appointment. If Bush gets one nomination now and one a year from now, same story (twice). If Bush has to fill two seats now, it's less clear that he'll be able to get away with appointing two hard-liners — he'll face some peel-away in his own party.

Indeed, Jack Balkin makes the good point that the Republican Party shouldn't want too many Justices who'll vote to overturn Roe v. Wade. For Justice Mike McConnell, say, to be sitting in O'Connor's seat, next to Justice Emelio Garza in Rehnquist's and Justice Janice Rogers Brown in that of a suddenly incapacitated John Paul Stevens, would be a Really Bad Thing for the G.O.P. It would mean, among other things, a ruling next Term that Roe had been wrongly decided, likely followed by swift passage through the House of Representatives of the Abortion Ban Act of 2006 — barring the performance of abortions, nationwide, by any medical practitioner wearing an article of clothing that had moved in interstate commerce, or breathing molecules of air that had at some point moved across state lines. It's hard to think of anything better calculated to convince your typical independent voter that the Republican Party aren't her kind of people after all. Much better, from the party's standpoint, to appoint somebody who will pay lip service to Roe, while letting it die the death of a thousand cuts.

Stay tuned …