Yet some good could still come from the lingering bitterness over Bush v. Gore. Skepticism about liberal and conservative activism, combined with the near-even Democratic-Republican split in the Senate, could create the strongest movement in memory to fill court vacancies with moderate justices who are genuinely committed to that old conservative motto, “judicial self-restraint.”
That description fits none of the current justices on the Supreme Court. Though three are strong conservatives, two are sometime right-leaning centrists and four are liberals, they are all activists who boldly use federal judicial power to displace decisions by elected officials and state courts that offend their personal, philosophical or political values. (The court’s liberals can rightly be accused of activism for such actions as the 5-4 decision in June striking down state laws against partial-birth abortion. The conservatives can be accused of activism for decisions like those protecting state governments from lawsuits when they violate federal laws.)
What kind of nominee can Bush hope to get safely through a deeply divided Senate should Rehnquist, O’Connor or 80-year-old John Paul Stevens retire? That depends in part on which of them leaves first.
If it’s Rehnquist, the challenge for Bush would be to find a conservative-leaning nominee for chief justice who has few enemies among moderate Republicans and Democrats–a very tall order (chart).
One fairly safe bet: the next chief justice will come from outside the court. Any Bush effort to promote Reagan-appointed Justice Antonin Scalia, the intellectual leader of the court’s conservatives, would run into furious liberal opposition. And an attempt to promote centrist Justice Anthony M. Kennedy, also a Reagan appointee, would run into equally ferocious opposition from conservatives, who see Kennedy as more ambitious for promotion than devoted to principle.
If O’Connor is the first to retire, Bush may choose the court’s first Hispanic in hopes of scoring political points. And if Stevens or another liberal should leave? Again, a Hispanic conservative might be a smart choice for Bush, since liberal Democrats in the Senate would find it a politically uncomfortable choice to oppose. Yet confirming a conservative to replace a liberal could doom government-mandated racial preferences and put the court within one vote of returning the abortion issue to the states. Should Bush try to put a strong conservative in Stevens’s seat, liberals will put up an especially tough fight. If anybody had any doubts about the importance of who sits on the Supreme Court, the case of Bush v. Gore gave them a lesson to remember.
