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Preparing for World War III

Replacing Rehnquist before O'Connor makes matters tougher on the Bush administration and guarantees a showdown with liberal interest groups.

12:00 AM, Sep 8, 2005 • By JOHN HINDERAKER
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A FEW MONTHS AGO, most observers expected Chief Justice William Rehnquist's failing health to trigger President Bush's first Supreme Court nomination. But Rehnquist hung on, to the surprise of many, and it was Sandra Day O'Connor whose resignation brought about the first vacancy on the Court since 1994. If that seems like a long time, it is: never before in American history have so many years elapsed between vacancies on the Supreme Court. President Bush nominated Judge John Roberts to replace O'Connor, and over the ensuing weeks, the Democrats and their allies in the press have subjected Roberts to a microscopic examination--which has failed to turn up anything of note.

Justice Rehnquist's death on Sunday presented President Bush with a new problem, which he promptly resolved by naming Roberts to succeed Rehnquist as Chief Justice. This means that Justice O'Connor will stay on the Court for the time being, and a new nominee will be selected to fill her position when she resigns following Judge Roberts's expected confirmation.

This change, though subtle, could represent a lucky break for the Democrats. Substituting Roberts for O'Connor would have been a significant upgrade, from a conservative point of view. Replacing Rehnquist with Roberts, on the other hand, is good to the extent that it likely represents another 30 years of conservative service on the court, but it will not effect a short-term change in the balance of power. In that sense, the key appointment has always been O'Connor's successor. And for that appointment, Roberts had turned out to be an inspired choice. The Senate Democrats and their supporters badly wanted to block the rightward shift that would be implicit in the replacement of O'Connor with a conservative. But Roberts proved to be an immensely circumspect figure. In 50 years, he seems to have said or done almost nothing controversial, while nevertheless establishing his reputation as a solid conservative. In personal, professional, and ideological terms, Roberts appears bullet-proof, and Democrats had more or less resigned themselves to being unable to block his succession to O'Connor's prized "swing" seat.

Now, the Democrats have been granted a reprieve. They can let Roberts go through with only token opposition, knowing that the philosophical composition of the Court will not change significantly, and concentrate their fire on Bush's second nominee, who will fill the critical seat being vacated by Justice O'Connor. One question, from a conservative point of view, will be whether President Bush can find another nominee who is both as solidly conservative and as non-controversial as John Roberts. Unfortunately, it is not obvious that he can.

Judge Michael Luttig of the Fourth Circuit Court of Appeals is regarded by many as a philosophical twin of Judge Roberts, and as far as I know his record is equally spotless. But he has served on the Court of Appeals for 14 years, and, unlike Roberts, has authored any number of opinions that could serve as grist for the liberal mill. Michael McConnell is generally recognized as the country's leading expert on religion and the Constitution and he was recently confirmed to a position on the Tenth Circuit without drawing a Democratic filibuster. But, while McConnell hasn't authored many opinions, he has spent most of his professional life as a law professor, which means that he has written prolifically. And liberals won't have to look far for ammunition; McConnell's 1998 article in the Wall Street Journal, "Roe v. Wade at 25: Still Illegitimate", could hardly be more incendiary, from their perspective.

None of the other solidly conservative candidates appears any less likely to engender controversy. So President Bush faces a choice: he can either nominate another conservative and trigger the most bitter confirmation battle since Robert Bork, or he can bow to pressure from the Democrats and the media and appoint a moderate, thereby forgoing, perhaps forever, his opportunity to move the Court in a conservative direction.

Pressure to appoint a centrist will undoubtedly be fierce. Indeed, such pressure is already beginning, even though the Senate has not yet begun to consider Roberts's nomination. Senator Dick Durbin said this week that he wants to know who the second nominee will be before he votes on Judge Roberts. Arlen Specter added, unhelpfully, that O'Connor's replacement should be a woman. It seems unlikely that the senator has Janice Rogers Brown in mind.