The consensus among Supreme Court watchers these days is that one, and perhaps two, justices will retire this year, probably in the summer. The leading candidates are Chief Justice William Rehnquist, seventy-eight, who is said to be tired and ready to go, and Associate Justice Sandra Day O'Connor, seventy-two, who is believed to be eager to head home to play golf in Arizona. Although there's been a lot of guessing about whom President Bush might nominate to fill a vacancy, perhaps the more intriguing question is How big will the confirmation fight be?
Big. When it comes to judicial selection, relations between Republicans and Democrats in the Senate are more strained than they have been at any time since the Clarence Thomas hearings, in 1991. By the 2000 election the two sides appeared to have reached a kind of equilibrium of outrage. Republicans were outraged at Democrats for the way they treated nominees for federal judgeships in the later years of the Reagan Administration and during the presidency of George H.W. Bush. Democrats were outraged at Republicans for the way they treated nominees in the later years of the Clinton Administration. It seemed that the situation could hardly get worse —but then, in May of 2001, the defection of Senator James Jeffords, of Vermont, gave control of the Senate back to the Democrats, who used their new power to kill two of President Bush's appeals-court nominations. Now, with the Republicans back in control of the Senate, and the biggest judicial prize—a Supreme Court vacancy—in sight, the chances that an ugly battle will occur soon are good.
Just how ugly the fight turns out to be will depend on which justice or justices retire. If a conservative like Rehnquist leaves and the President nominates another conservative to replace him, Democrats will undoubtedly oppose the choice, but with perhaps a little less passion knowing that it will mean no change in the balance of the Court. But if a liberal like Associate Justice John Paul Stevens—who is eighty-two years old—retires, and the President nominates a conservative to replace him, it would bring about an explosive clash, as Democrats fight to protect a liberal seat.
However big the battle turns out to be, its intensity will be due only in part to the bitterness on each side, and only in part to the real philosophical differences between the parties on judicial issues. What will also shape a summer Court battle is a new movement, led by Senate Democrats, to rethink the way the Senate confirms judicial candidates. During their eighteen months in power, from June of 2001 to January of 2003, some key Democrats on the Senate Judiciary Committee sought to make the judicial nomination process more openly—and, they would say, more honestly—ideological. Frustrated by old-style confirmation hearings in which nominees refused to reveal their views on critical issues such as federalism, affirmative action, and, above all, abortion (all with the explanation that candidates should not discuss the specifics of issues that might come before them on the bench), these Democratic senators began relentlessly pressing nominees for their innermost thoughts on hot-button questions of law.
The idea of frankly ideological hearings had been kicking around legal and academic circles for years, but it became a more imminent matter on June 26, 2001, in Room 226 of the Dirksen Senate Office Building, when Senator Charles Schumer, of New York, then the chairman of the usually low-profile Subcommittee on Administrative Oversight and the Courts, called to order a hearing titled "Judicial Nominations 2001: Should Ideology Matter?" In the months before the hearing Schumer had become the committee's leading proponent of the ideological approach, and he used the session to lay a political and intellectual foundation for it.
"Legitimate considerations of ideological beliefs seem to have been driven underground," Schumer said as he opened the hearing. "It is not that we don't consider ideology; it is just that we don't talk about it openly." Schumer explained that in the past the Senate often engaged in vigorous ideological battles over nominees. In the nation's first century about one out of every four candidates for the Supreme Court was defeated by the Senate, sometimes for plainly ideological reasons. That situation changed at the end of the nineteenth century; from 1895 to 1967 only one nominee was defeated. After that a series of failed nominations culminated in the intensely ideological battle over Robert Bork's nomination, in 1987. In the poisonous aftermath of that fight senators became fearful of discussing ideology too openly.
And that, Schumer continued, turned confirmation hearings into a kind of theater in which participants discussed everything except the most important issues. "Unfortunately, this unwillingness to openly examine ideology has sometimes led senators who oppose a nominee to seek out non-ideological disqualifying factors, like small financial improprieties from long ago, to justify their opposition," Schumer said. "This, in turn, has led to an escalating war of 'gotcha' politics that, in my judgment, has warped the Senate's confirmation process and harmed the Senate's reputation."
Schumer invited three prominent liberal lawyers—Laurence Tribe, of Harvard Law School; Cass Sunstein, of the University of Chicago; and Marcia Greenberger, of the National Women's Law Center—to testify at the hearing. (Two months earlier the same three had appeared at a Democratic retreat and reportedly urged lawmakers to take an aggressive stance against Bush's judicial nominees.) Only a more assertive and openly ideological Judiciary Committee, they told the subcommittee, could stop the White House from packing the courts with doctrinaire conservatives. Democrats simply had to be tougher on Bush nominees.
Tribe made the point by mocking old-style confirmation hearings in which senators solemnly asked whether the nominee would follow the law. "Duh!" he exclaimed, as the room erupted in laughter. "'Will you uphold your oath?'" Tribe continued. "'Of course.' 'Do you believe in precedent?' 'Yes, I have seen some.' But ask a question like 'How will you go about deciding which precedents should be overturned and which shouldn't ... and what would it take to make it justifiable to overrule Roe v. Wade,' and when a nominee says, 'Oops, I can't talk about that because that might have something to do with what I will do as a judge,' it seems to me at that point you ought to really scratch your head and say, 'Of course it would have something to do with what you would do as a judge; I wouldn't be asking you otherwise.'"
In the months that followed, during confirmation hearings for more than a dozen nominees to the federal courts of appeal, Democrats took Tribe's advice, with extraordinarily effective results. The first thing they did was turn the tables on conservative Republicans, who had been fond of asking the old "Will you follow the law?" question as a way of demanding that judges pledge not to engage in judicial activism—writing decisions not firmly grounded in the original meaning of the law. Now Democrats asked the same question but with a specific edge—the law to which they wanted the nominee to pledge loyalty was Roe v. Wade. (Other issues, such as federalism and affirmative action, provoke fractious debate, but not to the extent that abortion does.) Democrats exacted promises from a variety of Bush nominees that they would faithfully follow Roe. Indeed, one could say that in a year and a half of confirmation hearings the Democrats created a whole new generation of Republican judges publicly committed to strictly enforcing Roe.