With the news of Justice O'Connor's retirement from the Supreme Court will come the speculation of who will President Bush nominate to her seat. While there have been pundits galore opining on the subject, I want to post something a little different and little further down the road--the confirmation battle.
I think there are two things that will happen. First, you can guarantee a media spectacle--so much of one, I am surprised anyone would willingly go through with it. Second, you are going to see more outside spending on this nomination that you would see in a Senate seat battle--I am not sure of the impact that will have on the country.
See, until the nomination battle of Judge Robert Bork, most Supreme Court nominees were tested on competence, i.e. did this nominee possess the necessary legal training, epxerience and aptitude to be Supreme Court Justicts. Even intensely ideological nominees, like Antonin Scalia were confirmed with no dissenting votes. Now, any judge coming to the Judiciary Committee runs the risk of being Borked and/or filibustered.
But here is where Democrats are going to have to be very careful. Let's assume for a moment that Chief Justice Rehnquist steps down this summer as well. A reliably conservative vote, President Bush would be in pretty safe territory to nominate a conservative replacement without much more than a pro-forma battle. If President Bush promotes form withing, the likely candidates being either Justice Scalia or Justice Thomas, President Bush can still nominate a reliably conservative jurist.
However, O'Connor is a swing vote, always has been. Replacing her with a conservative constructionist or even an originalist is sure to draw the ire of Democrats and liberals. But here is where Bush can win. I think he should nominate a conservative in the Rehnquist mold to replace O'Connor for a couple of reasons.
First, it is the President's constitutional perogative to nominate Justices. He may consider any criteria he considers relevant, presumably including ideology. Of course, the President is likely to nominate those who share similar outlooks, but that does not guarantee anything. Just ask the ghost of Dwight Eisenhower how he felt, after the fact, about nominating Earl Warren. Democrats need to think about that. O'Connor was considered pretty conservative when she was nominated, yet turned out to be much more middle of the road than President Reagan may have expected. That is the risk of a lifetime appointment--that Justice's opinions and outlooks may slowly shift over time. Democrats should just accept that as fact.
Second, President Bush can nominate a Rehnquist like conservative and succeed because the Democrats cannot afford to filibuster a Supreme Court nominee. While there is nothing magical about nine justices, America has come to expect nine Supremes. If the Democrats filibuster, they will be seen as blocking the good order and operation of hte Court, despite the fact that the Supreme Court can operate just as well with 8 Justices. Americans of both parties will never forget the filibuster of a nominee. If a nominee is voted down--that is the price of our Republic and the public can accept that as part of our government. But to deny a vote will be seen as obstructionist for no good reason.
This second factor cuts in the favor of President Bush and he should exercise it. The fact that nominations to the Court have become so political needs to be highlighted. Both parties are guilty of this and the President should force the issue. He should nominate someone with strong legal credentials, who shares his outlook on the law, if not on all the issues and dare the Senate to make a spectacle of it.