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.
When the Senate turns to President Bush's nomination of a successor to Justice O'Connor, Democrats will no doubt rely in part on an argument which took a trial run in connection with Roberts's nomination: that President Bush is obliged to nominate someone who will not tip the ideological balance on the court. This is a theory that, to my knowledge, has never before been advanced. Certainly the Constitution seems to contemplate that the composition of the Court will shift with the philosophical and political views of the presidents who appoint the Court's justices; indeed, it is only this assumption which prevents the Court from being an entirely undemocratic and unresponsive institution. And, of course, Democrats didn't object when Ruth Bader Ginsburg was appointed to replace Byron White, which foreseeably swung the Court to the left.
The press, too, is already weighing in with the suggestion that President Bush is so weakened by declining support for the Iraq war and by his administration's alleged bungling of the response to Hurricane Katrina that he has little choice but to back off and nominate a moderate. This theory echoes the argument that was widely advanced after President Bush's inauguration in 2001; the argument then was that Bush's victory was so narrow that he had a duty to govern as a centrist--or, better yet, as though Al Gore had been elected. President Bush didn't listen to that advice; he proceeded instead to push through the first significant tax relief in a generation. More broadly, there is nothing in his record to suggest that Bush's decisions are guided by advice from the New York Times or the Washington Post. There is every reason to expect that when the time comes to name Justice O'Connor's successor, Bush will follow the principle that invariably guides him when he makes important decisions: He will do what he thinks is right, and let the chips fall where they may.
This is especially true given that the Republicans hold 55 seats in the Senate. The president's ostensibly weakened state is pertinent only on the assumption that it may cause some of those 55 Republicans to desert him, either on a cloture vote or an up-or-down vote on the nominee. But it is hard to see any reason why Bush should fear this outcome. The Republican base is divided on some issues, but not this one: every component of the Republican coalition not only agrees that conservative, strict-constructionist judges should be appointed to the Court, but also views such appointments as among the most important presidential decisions. So it is hard to imagine any widespread defection by Republican senators if Bush appoints a conservative to replace Justice O'Connor.
If President Bush nominates another strong conservative to replace O'Connor, the result will be the political equivalent of World War III. Liberal interest groups will face an existential crisis if they do not fight bitterly to keep the Court's current ideological makeup. Win or lose, they have no choice but to make the effort to oppose Bush's second nominee. And, unfortunately for Republicans, it appears likely that any conservative jurist whom Bush may appoint will give the Democrats more ammunition than John Roberts did. So be prepared for the ugliest, most bitter confirmation battle in a generation.
John Hinderaker is a contributing writer to THE DAILY STANDARD and a contributor to the blog Power Line.