Should the Fifth Circuit's new Chief Judge Edith H. Jones top Dubya's standby list for SCOTUS?

Formidable Supreme Court newshound Jan Crawford Greenburg wrote for ABC News on Friday (h/t: Andrew Hyman at ConfirmThem and Prof. Jonathan Adler on Bench Memos) that the Bush Administration is keeping its list (and checking it twice) of who would be naughty and who would be nice as SCOTUS nominees — just in case a seat were suddenly to come open when the Supreme Court concludes its current session at the end of June.

Ms. Greenburg mentions several sitting judges from lower courts whose names have been bandied about in prior years and who are supposedly still on the short list. In what I'd characterize as the "wistful, wishful GOP thinking" category, she notes that "advisers are focusing on possible nominees who are believed to be solid judicial conservatives and would galvanize the base at a time when Bush desperately needs its support."

I think that's about right, and I suspect that the White House would be entirely giddy right now to be able to poke a thumb directly into the eye of the Democratic-controlled Senate, even recognizing full well that the likely result would be not a filibuster, but an outright defeat. Think of it as a martyrdom operation to help set up the 2008 presidential election. Having done that, Dubya could nominate someone who could actually get confirmed like, say, Ted Olsen (although he's actually my choice for AG in the Thompson-Romney Administration come 2009).

Ms. Greenburg's story started me wondering, however, about a name that's been bandied about in past years, but that isn't mentioned in her current story: the Hon. Edith H. Jones of the United States Court of Appeals for the Fifth Circuit, whose chambers are right here in downtown Houston. Call me crazy, but I think the stars may have re-alligned slightly in a way that makes her a more plausible nominee than she previously had been.

The knock on Judge Jones in the past, according to conventional wisdom as espoused by the punditocracy, has been that she's so demonstrably conservative that she'd have been unconfirmable even before the 2006 election — and indeed, that there was probably no other candidate quite so certain to prompt a Democratic filibuster, based on a long track record that would provide tons of grist for the mills of very adversarial Senate confirmation hearings.

(A lesser objection is that she was born in 1949; I tend to think that's silly, though, because as most of the current members of the SCOTUS are demonstrating, that could still leave her with two or three solid decades of reasonably foreseeable service. Pish-posh — she's not "too old.")

And there's one important thing that has changed about her as a potential SCOTUS nominee since her name was mentioned for the slots now occupied by Chief Justice Roberts and Justice Alito in 2005: Last year, by virtue of her seniority on the Fifth Circuit — where she's served since President Reagan appointed her in 1985 — Judge Jones became the Chief Judge of the Fifth Circuit.

That new credential might actually make a difference: It means instead of being one of 179 or so sitting active-status Circuit Judges scattered around the country, she's now only one of thirteen sitting "Chief Judges" from all twelve geographic circuits (plus the "Federal Circuit," which has a specialized and limited nationwide jurisdiction) put together.

Chief Judges aren't elected among their peers, and it's not unheard of, in fact, for them to be secretly quite unpopular, or even tyrannical — so the title doesn't say anything about collegiality as such. But simply by virtue of her seniority and resultant position, Chief Judge Jones is unquestionably now a "leader among Circuit Judges," having presided over the Fifth Circuit's en banc court sessions, and having wielded other administrative and substantive responsibilities that are unique to the Chief Judge positions. Anyone who's seen the workings of the Courts of Appeals from the inside will tell you: Being the Chief is a big, big deal, not only among the judges, but to the law clerks, staff, and lawyers who appear there.

(And I'm fiercely proud, by the way, of Judge Jones' immediate predecessor as Chief Judge of the Fifth from 1999-2006, the Hon. Carolyn D. King, for whom I had the privilege of clerking when I was new to the profession and she was new to the bench.)

With that title, no one — not even barking moonbats — could challenge the depth of Edith H. Jones' judicial experience.

The new title may make the biggest difference, I think, with respect to holding Republican senators' votes: If she'd been nominated in 2005, Judge Jones probably would have lost the votes of a small handful of Republican RINOs even in a filibuster fight. But if the Bush-43 Administration's next SCOTUS nomination is going to trigger the Charge of the Light Brigade anyway, then maybe that additional credential would give the GOP faint-of-heart some cover under which they could cast a symbolic vote for the sake of party unity.

Not that, umm, anyone in the Administration — or certainly not that anyone at, ummmmmm, the National Review — has been asking for my advice on judicial nominations since I was the last Republican blogger in the country left supporting Harriet Miers. But for what it's worth, that's what's running through my fevered mind on this topic right now.