Lessons on reshaping the Supreme Court
WILLIAM H. REHNQUIST, the chief justice of the Supreme Court, is 80 years old and battling cancer. Having recently administered the oath of office to a president of the United States, he is expected to retire imminently. A new chief justice will then be selected for the first time in almost two decades.
Two things are certain in that process. First, President George W. Bush's objective is to move an already conservative court further to the right. Second, the Democrats will filibuster any nomination that is as far to the right as the president desires.
Because the president's highest priority is to advance his ambitious second-term agenda before he becomes a lame duck, he cannot afford a lengthy filibuster. Compromise will therefore be essential. He will, in short, be forced to learn a lesson from the brutal 1986 confirmation process by which Associate Justice Rehnquist succeeded Warren Burger as chief.
President Reagan was similarly motivated by the desire to mold a more conservative Supreme Court. To achieve that objective, he bundled the Rehnquist nomination with that of Antonin Scalia as Rehnquist's replacement. In so doing, he put forth, almost simultaneously, nominations of two of the most conservative jurists in the federal court system.
What followed was a battle over the Rehnquist nomination so heated and prolonged that the Senate was tied in knots for several months. Initially, the angry Democratic reaction was to the nomination of a justice whom some perceived to be an ideologue. As the debate turned nastier, the focus was on disputed allegations that Rehnquist had long ago participated in disenfranchising African-American voters. Although Reagan ultimately accomplished his short-term objective, he overreached by forcing the issue on a controversial selection. In the end, the political price was too high. That is the lesson for this president from the summer of 1986.
But there also is a lesson for the Democrats arising from their own error of omission. Immediately after massive time and political capital were expended on the Rehnquist hearings, Scalia was confirmed, without controversy and almost unanimously. To the extent that the dispirited and exhausted Democratic senators were trying to hold the line on ultraconservative nominees, they dropped the ball, albeit gaining a brilliant jurist in the process.
These lessons will likely inform the current confirmation process because neither party wants history to repeat itself.
The president needs to avoid at all costs the disruption of Senate business endured by Reagan. But he also desperately wants to add a staunch conservative to the court. His best chance of accomplishing both objectives is to give with one hand, while taking away with the other. In other words, he must devise a ''package deal" more palatable than that rammed through the Senate at an unacceptable cost by his predecessor.
In practical terms, this means that the president cannot nominate as chief justice either Clarence Thomas or Antonin Scalia, each of whom is a lightning rod who would likely trigger a filibuster. Rather, he must propose a moderate-conservative from the ranks of the existing associate justices. If he does so -- and probably not otherwise -- he may achieve confirmation of a more socially conservative replacement justice than would otherwise be the case.
His options in the moderate-conservative category are limited. Justice John Paul Stevens's age (84) and ideology remove him from consideration. Clinton nominees Stephen Breyer and Ruth Bader Ginsburg are not in the mix, nor is the philosophically independent David Souter.
This leaves the president with two choices, either of whom would win accolades and easy confirmation. Justice Sandra Day O'Connor, the first woman to serve on the Court, would be a popular choice, but, at age 74, she is rumored to be contemplating retirement. Justice Anthony Kennedy's reasoned approach to most cases has earned him respect, and he is reportedly interested in the higher post.
If the president nominates either of these highly regarded justices, the Democrats face a conundrum. The restraint demonstrated by such a nomination entitles the president to a sizable credit on his political ledger that he will likely call in on the associate justice nomination. While the Democrats must grant him his due, this new justice may well be the decisive vote on such critical issues as choice and affirmative action. The Democrats must therefore heed their own hard-earned lesson: Anything less than full due diligence is unacceptable. The balancing will undeniably be difficult and precarious, but it must be done.
There is much to be learned from the lessons of 1986. Perhaps the real question is, which side of the aisle has assimilated those lessons.
Joan Lukey is former president of the Boston Bar Association. 