In the months leading up to the 2000 presidential election, I was one of many Democrats who backed Al Gore because I loathed Bush. I respect Gore, admire his record and achievements, and genuinely believed he’d make an excellent president. But truth be told, he never generated the enthusiasm Clinton did. My love for Gore was dwarfed by my disdain for Bush.
A friend of mine, let’s call him JC, is just as big a die-hard Democrat as I am, but JC never liked Gore. Every time Gore would say something annoying, he’d come to me for a reason to vote for Gore anyway. And every time this happened, I’d always say the same four words: “Two Supreme Court justices.”
JC, like me, is one of those odd voters who considers the federal judiciary one of his top five issues when considering a presidential candidate. He knows that most policies can be done and undone, but reshaping the federal bench can take decades.
Going into 2000, we knew that too many of Clinton’s judicial nominees got tied up by Republicans in the Senate, and despite having served two full terms, he only named two justices to the Supreme Court, one in each of his first two years in office. By the time of the 2000 election, we had gone six years without a vacancy on the high court and rumors were flying that the next president would get the chance to name at least two justices, and probably more.
JC would get mad at Gore, but I’d just hold up two fingers — one for each justice Bush would get to nominate if he won — and JC would know there was only one way to vote.
Well, two and a half years later, things were looking up. Sure Bush had wrecked our economy, ruined our standing as a world leader, implemented a reckless foreign policy, signed irresponsible tax cuts for millionaires and billionaires, abandoned environmental protections, exacerbated a deteriorating health care crisis, and broken down the wall of separation between church and state — but at least he hadn’t gotten the chance to replace any Supreme Court justices.
As of now, it’s been nine years since there was a vacancy on the high court, the longest such stretch in 180 years. I keep thinking if these justices can just hang on another year and a half, America might get a new president who’d appoint better justices. We’d have dodged a bullet and JC could snicker at me for having misled him.
A report from earlier this week suggests our luck may be about to run out.
As Newsday reported, “Well-informed court observers say that there could be two Supreme Court resignations next month, Chief Justice William H. Rehnquist and Associate Justice Sandra Day O’Connor, bringing the greatest upheaval on the court in 32 years.”
If these rumors true, the retirements would set the stage for the biggest political fight in DC since Clinton’s impeachment. Democrats have already hinted at the idea that they’ll filibuster any Bush nominee considered too “extreme.” If Dems do filibuster, you can count of Republicans going ballistic.
Rhenquist always seemed like the logical choice for retirement during Bush’s presidency. He’s 78 years old and has been in poor health for several years. Rhenquist has been at the Supreme Court for 31 years and has admitted that he believes it appropriate for justices to retire during a Republican presidency if the justice was nominated by a Republican (Rhenquist was named to the court by Nixon in 1971 and named Chief Justice by Reagan in 1986).
If Bush has the opportunity to replace Rhenquist, he’d be replacing one very conservative justice with another. Rhenquist — with Justices Scalia and Thomas — make up the high court’s right-wing trio, usually voting in lock step. With this in mind, the left doesn’t really lose anything with a Rhenquist retirement because a conservative vote is a conservative vote. The problem, however, is that Bush’s replacement for Rhenquist would be much younger and would therefore be a conservative voice on the high court for decades to come.
O’Connor’s retirement, however, would be huge. The 73-year-old justice, the first woman to ever serve at the Supreme Court, is widely known for being the “swing vote” on many a controversial issue. In 2001, there were more 5 to 4 decisions than had ever been handed down by the high court. In the overwhelming majority of these cases, O’Connor was the deciding vote.
An O’Connor retirement would give Bush a chance to make a dramatic change at the Supreme Court. A moderate, consensus-builder who aims for middle ground would be replaced by a more traditional conservative, who Bush would hope to see vote with Scalia and Thomas.
The politics of the nomination process would be intense. With a GOP majority in the Senate, Bush would probably feel little need to nominate a centrist. Many believe Bush would be inclined to name at least one Hispanic-American to the court in the hopes of appealing to an ever-growing Hispanic voting population, which is now generally supportive of Democratic candidates. (The rumored candidate is White House counsel Alberto Gonzales, a 47-year-old longtime Bush associate who served on the Texas Supreme Court.)
Bush, however, would be under tremendous pressure by his right-wing base to make sure the nominee is sufficiently conservative. Many conservatives use the rallying cry, “No More David Souters!” to remind the party that the last President Bush got to name two justices to the high court and one of them — Souter — turned out to be one of the court’s more consistently liberal justices. Conservatives are desperate to make sure this doesn’t happen again.
Democrats, meanwhile, may see filibuster as a last resort, but they certainly won’t take the option off the table. And if you think the fight over a couple of appeals court filibusters is getting nasty, wait until you see what happens if Senate Dems block a Supreme Court nominee.
Stay tuned…