The Magazine

Judgment Day

From the July 18, 2005 issue: What President Bush needs to keep in mind with the Supreme Court.

Jul 18, 2005, Vol. 10, No. 41 • By FRED BARNES, FOR THE EDITORS
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PRESIDENT BUSH NEEDS TO KEEP two facts in mind as he looks to replace retiring Supreme Court justice Sandra Day O'Connor (and, should he step down, Chief Justice William Rehnquist). The first is that he can win confirmation of almost any conceivable nominee for the High Court, screams of protest by Democrats and hostile media coverage notwithstanding. The second is that he has a promise to keep. Since he began running for the White House six years ago, he has declared endlessly his intention to select judges who interpret the law rather than create it--in a word, conservatives. On this, he has never equivocated.

The number 55 (or 56 if you count Vice President Cheney's vote in the event of a tie) looms large. The Senate majority of 55 Republicans limits Democrats to three possible means of blocking a conservative nominee. 1) Through a procedural maneuver like a filibuster, or by demanding documents they know the White House will never release. 2) By discovering an ethical lapse in a nominee's past. 3) By spooking the president with disingenuous calls for an O'Connor clone, or by claiming every potential conservative nominee is outside the mainstream. None of these is likely to work.

For a filibuster to succeed, Democrats would need the cooperation of three of their seven colleagues who joined the Gang of 14 in limiting the filibuster in cases of judicial nominations. And they would need at least six of the seven Republican gang members to agree that "extraordinary circumstances" have occurred and that a filibuster is permissible. The possibility of this happening is--well, it's all but impossible. Three of the Republicans have already indicated they'd vote to invoke the "nuclear option" to thwart a judicial filibuster. And only two defectors from the Gang of 14 are needed to pass the nuclear option.

As for the document ploy, it is a tool of obstruction, not a form of legitimate inquiry, and everyone knows it. Democrats used it in 1986 in hopes of preventing Rehnquist's elevation to chief justice. In that instance, the Reagan White House compromised, mostly on its own terms. Now Democrats are using the ploy again to drag out the confirmation fight over John Bolton, nominated for ambassador to the United Nations. However, there's only one way an unsatisfied demand for documents can ultimately deny confirmation of a Supreme Court nominee: through a filibuster. And we know a filibuster won't fly.

Should an ethical flaw crop up during confirmation hearings, the Bush White House would probably have itself or its nominee to blame. FBI full-field investigations only go so far. It's up to the president and his aides to make sure a nominee doesn't withhold information that, once disclosed, threatens confirmation. Pre-nomination scrutiny by administration officials isn't foolproof, but the tougher and more probing it is, the less chance of trouble later.

The president should dismiss outright Democratic arguments against naming a serious judicial conservative. In essence, Democrats want a nominee who, like O'Connor, lacks an underlying judicial philosophy and instead approaches legal issues on a case-by-case basis. We've seen what happens with such justices. They drift to the left. And rather than restrain judicial overreach, they take the court deeper into political and social realms that should properly be left to the elected branches of government. That a nominee happens to be a Republican matters little. O'Connor and Justices John Paul Stevens and David Souter were Republicans when they joined the Supreme Court. Their party identification offered only false hope to conservatives about how they would vote as justices.

Nor are Democrats likely to treat any Bush nominee--even an O'Connor lookalike--in the manner in which Senate Republicans dealt with President Clinton's two nominees, Ruth Bader Ginsburg and Stephen Breyer. Those nominees were encouraged by Republicans not to answer questions they deemed inappropriate. And so they declined to answer dozens of questions on race, religion, abortion, the death penalty, gun rights, gay rights, and school vouchers. No Bush nominee will be granted such courtesy. We know this because Democrats have said so.

Now to Bush's promise. From the early days of his presidential campaign, he's vowed to name judicial conservatives, and he's lived up to that promise in picking judges for the federal courts of appeals. In 1999, The Weekly Standard asked Bush to identify the Supreme Court justice who was his model for what a justice should be. He said it was Antonin Scalia, a full-blown conservative. He told the same thing to Tim Russert on Meet the Press.