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The Court's Progress

Creating a conservative majority on the Supreme Court is a task which has eluded every postwar Republican president, so far.

10:50 AM, Sep 21, 2005 • By FRED BARNES
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FEW DECISIONS BY PRESIDENT BUSH have generated as much agony among conservatives as his selection of Supreme Court nominees. With the nomination and likely confirmation of John Roberts as chief justice, Bush has satisfied conservatives, even thrilled some of them. But it's his next pick--the person to replace Sandra Day O'Connor--that matters more. In choosing that nominee, the president has an opportunity to achieve a goal that has eluded conservatives for nearly four decades: a Supreme Court with a conservative majority on most issues.

The agony comes from having come so tantalizingly close to realizing that goal in the past. Conservatives fear their hopes will be dashed once more. They feel like Charlie Brown. The football has been pulled away from them at the last moment time after time and may again. President Nixon tried to engineer a conservative-dominated court and fell short. President George H.W. Bush also tried and failed. President Reagan had the creation of a conservative court within his grasp but couldn't pull it off.

Two things have thwarted conservatives. First, nominees of their liking have been denied confirmation by the Senate. The most famous of these was Robert Bork in 1987. Second, nominees thought to fit the conservative mold have turned out to be moderate swing justices or, worse, liberals. Here, the most frustrating example was the elder President Bush's selection of David Souter in 1990.

The current President Bush is aware of these pitfalls. And he's especially eager to avoid nominating another Souter. But he's also under political pressure, mostly from Democrats, to pick a "consensus" nominee in the wake of hurricane Katrina. The reasoning is that Bush took a political hit by his administration's slow reaction to the flooding of New Orleans. By avoiding a bitter fight over a conservative nominee, he would supposedly get political credit.

Bush is not likely to give much credence to this idea. Since his first presidential campaign in 2000, he's been promising to name conservatives to the court. And all five of the potential nominees he interviewed for the first vacancy were conservatives. So it makes sense he'd nominate another conservative once Roberts is confirmed.

The effort to transform the court actually began in the closing years of the Eisenhower presidency. After putting Earl Warren and William Brennan, both liberals, on the court, President Eisenhower became alarmed. His last two picks, Charles Whittaker and Potter Stewart, were more conservative.

Nixon was determined to shift the court's ideological balance to the right and he succeeded to some extent. But it wasn't enough to produce a reliable conservative majority. He chose Warren Burger as chief justice to replace Warren, a pickup for conservatives. To fill the seat of Abe Fortas, a liberal, Nixon wanted a Southern conservative. But his first two nominees, Clement Haynsworth and G. Harrold Carswell, were rejected by the Senate. He settled for Harry Blackmun, who turned out to be not as conservative as Nixon expected.

Then came the retirements of Hugo Black and John Harlan, a liberal and a moderate respectively. Lewis Powell and William Rehnquist, a moderate and a conservative, took their seats, again tilting the court a bit more to the right. In the end, Nixon made the court more conservative but not solidly conservative. Burger, Blackmun, and Powell were disappointments, all three voting in the majority on Roe v. Wade to legalize abortion.

President Ford didn't try to find a conservative nominee, but President Reagan certainly did for the three vacancies during his two terms. But he insisted on naming a woman to his first vacancy, Sandra Day O'Conner. She frustrated Reagan's intentions by becoming a swing vote on the court, not the conservative he hoped she'd be. Reagan then put Antonin Scalia on the court, a clear gain for conservatives. But on the next vacancy, after Bork was blocked and the new nominee, Douglas Ginsburg, withdrew, Reagan turned to Anthony Kennedy. He proved to be less conservative than expected.

The biggest disappointment was Souter. The first President Bush picked him for Brennan's seat. He was quickly dubbed the "stealth nominee" since his judicial views were little known. But Bush aides spread the word that he was a conservative, a "Federalist Society type." He wasn't, and later emerged as being almost as liberal as Brennan. No gain there. But when Clarence Thomas took Thurgood Marshall's seat, it was a big step to the right.

Now it's George W. Bush's moment to finish the process. Will he nominate a conservative? Most likely. Will that conservative be confirmed? Probably. But will that conservative stay conservative on the court? Nobody knows for sure and that's the problem. Nothing is guaranteed in picking Supreme Court justices, and for conservatives, that's where the agony comes in.

Fred Barnes is executive editor of The Weekly Standard.