WITH JOHN ROBERTS sailing toward confirmation last week, President Bush had the O'Connor seat "won." The Court was set to move one click to the right (so to speak). Then Chief Justice William Rehnquist died. The president chose to move Roberts over to fill the Rehnquist slot--thereby re-opening the vacancy created by Sandra Day O'Connor's retirement.
One understands the attraction of Roberts as chief. But with this action, in one fell swoop, the president deprived himself and his supporters of the easiest argument for his next nominee: that surely a reelected conservative president is entitled to replace a conservative justice--Rehnquist--with another conservative.
So now everything rides on Bush's nerve. Is he willing to fill the O'Connor seat with a conservative, and can he then make an effective case for that nominee to the Senate and the country? Bush will have three huge advantages in such an effort--a 55-seat GOP Senate majority, popular support for a more restrained and conservative Court, and a plethora of well-qualified conservative candidates (consider Michael Luttig, Michael McConnell, Edith Jones, Priscilla Owen, Maura Corrigan, and Miguel Estrada, for starters). And there are in fact attractive arguments to be made for each of these candidates that go beyond the generic ones and that would make prospects for confirmation good.
So there is no good reason for Bush to flinch. But he could. He may be rattled by the criticism for mishandling hurricane Katrina, and he may think it would be better to avoid too big a fight over the Court. He's always wanted to nominate his attorney general, Alberto Gonzales--he likes him, is loyal to him, and would appreciate the symbolism of putting the first Hispanic on the court. So he might be sorely tempted to do so now.
Would any of his aides have the nerve to tell him that as Supreme Court jurists go, Gonzales would be mediocre--and not a solid bet to move the court in a constitutionalist direction? Would any of them have the nerve to explain to the president that a Gonzales nomination would utterly demoralize many of his supporters, who are sticking with him and his party, through troubles in Iraq and screw-ups with Katrina, precisely because they want a few important things out of a Bush presidency--and one of these is a more conservative court? Would any of them tell the president that risking a core item in the conservative agenda for the sake of either friendship, diversity, or short-term political spin, would be substantively wrong, and politically disastrous?
Maybe. And maybe Bush doesn't need all these reminders.
But even astute presidents occasionally make big mistakes. And one worrisome straw in the wind is the comment by Bush loyalist John Cornyn (R-Tex.) in today's Washington Post, who, according to the Post, thinks the nominee will likely be "a woman or a minority." Cornyn offered what the Post described as "a vigorous defense of Gonzales." "He would be a very good nominee and one that I would be happy to support," Cornyn said. "I've read about these concerns from some conservatives, and I really wonder where they are getting some of these strange ideas."
Yikes. One hopes Cornyn is just being polite to Gonzales and Bush. Or has he been asked to lay the groundwork for a Gonzales nomination? Did Cornyn talk with Karl Rove yesterday, between the Roberts announcement and his interview with the Post? If so, we conservative constitutionalists are in real trouble. More important, so is Bush.
William Kristol is editor of The Weekly Standard.