Stephen Breyer for Chief Justice

I think Stephen Breyer would be an excellent choice as President Bush's nominee for Chief Justice, were Chief Justice Rehnquist to retire, as is widely expected.

Politically, the move would make a lot of sense. Promoting a Democratic appointee who voted with the minority in Bush v. Gore (but notably in the majority of the 7-2 decision in favor of overturning the absurd recount demanded by the Florida Supreme Court) would provide much needed cover for supporting a more conservative nominee for the open seat than he'd get otherwise.

It would also conserve political capital that would be better put to use on legislative priorities than on promoting Justices Scalia or Thomas to the top spot, which is largely an administrative post. This is particularly true when the Chief is in the minority on a case, as the most senior member of the majority gets to assign the opinion. As a not-insignificant aside, were Justice O'Connor to retire, the most senior member of the conservative side of the court would be Justice Scalia.

From a less calculating perspective, of course, Justice Breyer is a smart, pragmatic jurist. Although he doesn't share the court's current appetite for federalism, he hasn't shown an inclination to "legislate from the bench." His contributions to oral arguments are uniquely insightful.

Of course, it's unlikely President Bush would make such an appointment, as it would be seen as a symbolic betrayal of the conservative base. Conservatives, though, should concentrate less on the symbolism and more on the pragmatic gains. Unless the president makes at least a token gesture of reconciliation with the Democrats, it's hard to see how we get through the next Supreme Court nomination without either an earth-shaking partisan battle that stops the rest of the Bush agenda in its tracks, or a mushy-middle appointment that could end up as the next Souter.