John Aravosis has a great play-by-play prediction for how the third nominee to replace O’Connor will unfold. He highlights a couple important points about where Bush stands now in light of the religious right putting the kybash on Miers.

2. The GOP just lost all of their Supreme Court talking points. Who in the GOP is going to be able to stand up with a straight face and say “every nominee deserves an up or down vote”? Kiss that talking point good bye.

3. And who is going to be able to argue that there should be no “litmus test” on abortion and other issues? Harriet was killed because last night a report came out that she was sympathetic to a woman’s right to choose. She failed their litmus test on abortion, and she was killed. That means if the next nomination fails our litmus test on abortion, we can kill the next one.

I’m not certain that their use of a litmus test would be the same as ours — the GOP is in power and it’s officials are beholden to their base for continued support. Democrats, on the other hand, only have the power to filibuster and have shown time and again that they are not beholden to the grassroots of the party (see: no senators supporting objections of the black caucus after the 2000 election). I’m also skeptical that the mainstream media is prepared to call what the religious right has done a litmus test. That’s not to say that it wasn’t, but that the media hasn’t shown any ability to say what’s good for the goose is good for the gander.

8. Bush has shown his cards to the far right. He’s not a real conservative. He doesn’t like their agenda. He’s embarrassed to publicly embrace it. No matter who he appoints next, they now know Bush isn’t one of them and that impression - that realization - will linger for the rest of his term.

9. And finally, Bush is setting the religious right up, and that makes me smile. Yes, Bush will pick a wack-job for the next nominee, even though he knows the wack-job won’t be confirmed. Bush will fight for his nominee, blah blah blah, and the nomination will fail. Then Bush will say, see, I tried - then he’ll nominate Alberto Gonzales, who the religious right hates, and get him confirmed. Bush will be able to argue that he gave the religious right want they wanted and it just didn’t work. Oh well, time for Alberto.

I’m skeptical about two conclusions here. First, I’m not certain Democrats will be able to filibuster a radical regressive nominee, like say Edith Jones. A filibuster still requires Democrats to stand together as a party and I’m not confident that they’re smart enough to know that this is a possibility now, that the conditions have been handed to them as John notes. Second, if Bush thinks there’s even a chance that a radical like Jones would get filibustered, why would he nominate her now? How does losing ANOTHER battle this year do him any good, especially if the end game is that he picks a “moderate” who will alienate the religious right? Instead, I see him picking another Roberts now — someone like Paul Clement or Edith Brown Clement — intellectual heavyweights with distinguished careers and who fall within the pale of reasonable beliefs (read: not what the religious right wants).

Another failed nominee costs Bush time and political capital. While he may temporarily appease conservatives who have just now seen him as he is (see Aravosis point , he will only lose them again when he’s forced to make a fifth pick to replace O’Connor. That fifth selection may not be taking place until next February at the earliest and another six months of failing to replace O’Connor would be an appalling failure for a two term president. No, Bush’s best bet is to pick someone who is qualified, even if it isn’t a name that the religious right has put on his desk. With indictments about to rain down upon the White House, Bush can’t afford to have another Supreme Court announcement immediately produce debilitating criticism.

Philo