The Washington Times
If the White House has seemed a bit adrift on domestic matters, my guess is that’s because they know something you don’t know: The entire domestic debate is about to be taken up by a battle royale over two Supreme Court nominations. Social Security may not be going anywhere, but it makes little sense to try to introduce another major initiative when in a few weeks’ time we are likely to have the mother of all partisan confrontations.
The likely first move is the announcement that William Rehnquist is stepping down, opening up the job of chief justice of the United States for only the 17th time in the nation’s history.
Who, then, is in line to replace him? There’s an interesting paradox here in that the position of chief justice sounds more powerful that it actually is. True, you get to bang the gavel when the Supreme Court is in session. If the House votes to impeach the president, you get to preside over the trial in the Senate. You get to write an earnest chin-stroking report each year on the state of the judiciary. If you want to, you can add snazzy stripes to your robe. And, of course, they do name the period after you, as in the Rehnquist court, the Warren court, etc.
But you are only one vote among nine, and your main activity on the court is assigning the writing of the majority opinion when you are in the majority. That’s something, but not a lot.
Now, if I were the Bush administration, I’d look for a new chief on the current court. And since Antonin Scalia is universally regarded as a brilliant jurist, agree with him or disagree, and since my party base happens to love him, I’d look no farther.
What happens then? Well, that’s a good question. If I were advising Senate Minority Leader Harry Reid, I’d recommend letting the Scalia confirmation go through fairly easily. My reasoning would be that Justice Scalia is on the court already, his elevation does nothing to alter the voting pattern, and the real action ought to be directed toward the nominee who will fill Justice Scalia’s associate seat once he gets the big chair. One could take the opportunity to look reasonable.
But I bet there are a lot of people advising Mr. Reid that Justice Scalia Must Be Stopped. It’s sort of the principle of the thing: He is, after all, “evil Nino,” in the charming characterization of one of the late Justice Blackmun’s left-wing clerks.
We all know that the nominee for the vacant seat will be an evil-Nino clone, the Scalia Must Be Stopped crowd will say. If you don’t put up a fight, they will argue, the president will have momentum coming out of the confirmation victory and swearing-in that he will swiftly put to use in filling the Scalia seat.
Mr. Reid has as much as said that he intends to deploy the filibuster against future Supreme Court nominees. Now, there are some who would argue that such a tactic would be fraught with peril. An indefinitely filibustered nomination for which there would otherwise be a Senate majority to confirm, leading to the Supreme Court sitting without a full complement of members, would put the minority in an extremely tenuous political position, or so it seems to me. And when you combine this with the likelihood that even if Justice Scalia is confirmed as chief and replaced by someone with a similar approach to constitutional jurisprudence, the current court balance doesn’t change – it seems like a waste of energy.
But again, I think many Democrats see things quite differently. And it is also in this light that one must understand the current debate on filibustering judicial nominees, which is coming to a head as I write.
If you are in the Republican Senate majority or the Bush White House, and you think Democrats have been abusing the filibuster, when do you want to hold a vote that will end the practice? Not, I think, when you have a Supreme Court nominee under consideration. The political risk is greater: The charge Democrats will level is that in order to pack the Supreme Court with extremist, far right-wing judges, the Republican Senate majority is willing to throw away centuries of precedent to change Senate rules in its favor.
Unfair. Shades of Bush v. Gore. So from the Republican Party’s point of view, if the filibuster has to be taken down, better to do it sooner, over appellate nominees. That way, the issue can be exhaustively debated (as, heaven knows, it has been) and will seem like a rehash when Democrats raise it at the Supreme Court level.
If I were a Democratic senator, I wouldn’t want to lose the argument over the filibuster just yet. But, of course, a substantial number of Democrats now think that losing this fight is a winning play. They may get to find out.