In The Enemy of Our Enemy is Our Friend, Rob McKay suggests giving the potential Supreme Court nomination of Alberto Gonzales a relative pass, because his nomination will split religious conservatives from the Republican party and because if we don't get him, we're likely to get someone worse.
We don't completely control the outcome in this fight, but when someone exhibits as much contempt for democracy as Gonzales does, you have to challenge him. He's not David Souter, a relative unknown. As Mckay acknowledges, he's an architect of many of the most destructive Bush policies like the 2002 torture memo that said "injury such as death, organ failure, or serious impairment of body functions - [are necessary] in order to constitute torture." He helped push through the Patriot Act and wrote the Presidential Order saying that terror suspects could be tried and sentenced to death by secret military tribunals. This isn't someone to embrace, morally or politically.
Maybe his nominaton would split the right temporarily, but it can easily be balanced by Bush then appointing a "real conservative" when William Rhenquist's seat comes open. Meanwhile we'll have raised the bar still further till we're unable to challenge anyone short of Attila the Hun and Vlad the Impaler, and then only if they've spoken too impoliticly.
We may not win in challenging Gonzales, but we need to define why giving him a lifetime appointment is an outrage to democracy, pound that point home, and then challenge the supposed Republican moderates to stay true to their word and allow the filibuster to hold. If they vote to break the filibuster, or insist on the confirmation of Gonzales, we need to hang this nomination around their neck come election time, and challenge them as the candidates who embraced legal torture.
Those on the political right have split and reuninted too often before to place faith in their rupture over even something as conseqential as a court nomination. When election times comes, they'll cut their losses and work together to elect those who will give them the maximum power. We should learn from this and do the same -- and that means not giving up on challenging reprehensible nominees before we start.