A Brand New Battle for Supreme Court

The death of Chief Justice William Rehnquist, President Bush’s nomination of John Roberts to replace him, and the consequent need to find a new replacement for the resigning Justice Sandra Day O’Connor have radically transformed the ongoing battle over the political complexion of the Supreme Court.

As matters stood before Justice O’Connor submitted her resignation, the Court consisted of four liberals (John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer), three staunch conservatives (Rehnquist, Antonin Scalia and Clarence Thomas), one wobbly conservative (Anthony Kennedy) and another still wobblier conservative: O’Connor, who frequently broke ranks and thereby became the key “swing vote” in a number of crucial cases involving abortion, affirmative action, etc.

When Justice O’Connor signaled her resignation, therefore, what remained was a 4-to-4 split, and Bush had the opportunity, by naming a solid conservative to succeed her, to transform what had often been an effective 5-to-4 majority for mostly liberal views into a 5-to-4 majority for conservative ones. By naming John Roberts as her successor, the president surprised no one by choosing what certainly seems to be a dependable conservative. Worse yet (if possible), from the liberal standpoint, Judge Roberts turned out to be a nominee of such coruscating brilliance, integrity and judicial temperament that it appeared, and probably was, impossible for the liberals to assemble a Senate majority to reject him.

But the death of Chief Justice Rehnquist, and Bush’s promotion of Roberts to be his nominee for that high office, has dramatically altered these calculations. It amounts to the simple replacement of one solid conservative by another, and as such doesn’t affect the political complexion of the Court. In addition, because of his impeccable credentials, it seems likely that Roberts would have an easier time in the confirmation process than, say, if someone such as the brilliant-but-controversial Scalia was promoted to the position.

But his nomination also opens anew the question of who shall replace Justice O’Connor, the key swing vote on the Court. That is, of course, a monumentally important question. If Bush names a solid conservative to the vacancy, the Court will shift perceptibly to the right. If (as the Democrats are recommending) he names an O’Connor-like equivocator, the Court will continue to do the will of the left whenever O’Connor’s successor equivocates.

Both sides are well aware of this, and the battle over this nomination is therefore bound to be a battle royal. The Democrats will no doubt strain to make the ratification of Roberts’ nomination for chief justice look like a serious issue, but the man’s merits are obvious and, far more important, his accession to the Court will now have no effect at all on the its political complexion. They will, therefore, save the great bulk of their ammunition to train on Bush’s nominee to succeed O’Connor.

For conservatives, that means that President Bush simply must stand firm and name a dependable conservative for that seat. He is known to think very highly of Attorney General Alberto Gonzalez, who would have the advantage of being the first Hispanic member of the Supreme Court. But Gonzalez is believed by many conservatives, on the basis of his prior performance as a member of the Texas Supreme Court, to be squishy on abortion and perhaps other key issues, and opposition to his nomination would be high in conservative circles. The Democrats in the Senate might look on him fondly for precisely that reason, but they have their own reservations about him, centering on his role in defining the administration’s legal attitude toward the Guantanamo Bay detainees.

The nomination of Gonzalez, therefore, would raise the curtain on a confused struggle in which ideologues on both sides would be torn by doubts, and ratification or rejection of the nominee might depend on shaky bipartisan coalitions on both sides of the issue.

Worse yet, if Gonzalez were confirmed, and then proved an undependable conservative of the O’Connor stripe, Bush might well have lost his last opportunity to move the Court perceptibly to the right. Loyalty to his friends is one of the president’s highest merits, but we can only hope it will not result in the greatest tragedy of his administration.

• William Rusher is a Distinguished Fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy