As he prepares to send up a name to replace Sandra Day O’Connor, President Bush is hearing daily from the core of his base, the Christian right. The Supreme Court, they say correctly, will be an enduring legacy of his presidency. Their legal watchwords are strict construction and original intent. Translated into more meaningful parlance, that means a nominee who is demonstrably correct on abortion, stem cells, affirmative action, religious issues and same-sex marriage.
If the common assumption is correct — that Justice William Rehnquist will not remain on the court much longer — Bush will have two appointments, with the possibility to stretch it to three. This is how it could happen.
First, the president irritates the base and pleases Karl Rove by using the O’Connor vacancy to nominate Alberto Gonzales, the first Hispanic.
Gonzales has the credentials: Texas Supreme Court justice, counsel to Bush as governor then later as president, confirmed by the Senate as attorney general. He fills the bill for those urging the president to look for diversity of background, not just nominate from the federal bench. The political calculus of a Gonzales nomination is that a high-profile appointment like this could help anchor the loyalty of the large, free-floating bloc of Hispanic voters. This matters to those in the GOP whose futures involve winning elections, not just pulpit politics.
Gonzales, however, is the nominee the Christian right fears most. His credentials are suspect on both abortion and affirmative action and conservative leaders have responded quickly and critically to the possibility he might be chosen. Invoking the prior choices of Reagan and Bush Sr., appointees who have proved to be insufficiently orthodox, they insist, “Gonzales is Spanish for Kennedy (or Souter)”.
Bush bluntly advised Gonzales’ opponents to stifle that criticism. And some conservative leaders who voiced opposition to his nomination were quietly invited to visit with the attorney general. The implicit message: Maybe we’re not so far apart after all.
President Bush knows and trusts Alberto Gonzales. He also knows Gonzales would be confirmed; minority leader Harry Reid has admitted as much, and this is an important consideration for the first nominee. Conservatives might not like Gonzales, but they would not torpedo his selection.
With Gonzales safely in place, Justice Rehnquist could retire. This second selection is where the president begins to pay off his base. His two logical choices to replace the chief are already on the court, the two justices Bush most admires, Antonin Scalia and Clarence Thomas. Liberals are alert to this possibility. People for the American Way, which plans to spend $18 million on a confirmation fight, has warned that a court led by Thomas or Scalia could overturn 100 Supreme Court precedents.
A Scalia nomination would thrill the Christian right, but longevity is a major consideration in choosing a chief justice. You want your choice to be around for a long time to shape the court, and Scalia, at 69, is too old.
By contrast, Clarence Thomas is a robust 57 with plenty of years of service ahead. His judicial record will please conservatives and his confirmation process this time would be about his record on the court, not about Anita Hill. To be sure, many Democrats would oppose him, but not nearly enough to sustain a filibuster. Chief Justice Thomas would be confirmed by a much wider margin than his 52-48 vote in 1991.
With the Thomas seat open, the president has his third Supreme Court vacancy. This is where the Christian-conservative base reaps its full reward. Surely Bush would meet his own litmus test by choosing a faithful copy in the Scalia-Thomas mold.
According to the conservative formula, this new associate justice needs to be at least as conservative as Rehnquist and more conservative than O’Connor. To keep the peace at home, Bush might also follow Laura’s advice and appoint a woman.
Supreme Court appointments are one part of a presidency that endures into history. If he follows the game plan outlined above, Bush will put an indelible stamp on the Court and go a long way toward shaping his own legacy.
This, of course, is a nightmare scenario for liberals and Democrats. But Karl doesn’t care.